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Burns-Dederer v R

Burns-Dederer v R

Case [2023] NSWCCA 191 7 August 2023

Appeal

Admissibility of Evidence

Unreasonable Verdict

Inconsistent Verdict

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burns-Dederer v R [2023] NSWCCA 191
Hearing dates: 2 February 2023
Date of orders: 7 August 2023
Decision date: 07 August 2023
Before: Simpson AJA at [1];
Fagan J at [99];
Dhanji J at [102]
Decision:
1. Leave granted to appeal.
2. Appeal dismissed.

Catchwords:
EVIDENCE – tendency evidence – whether evidence of significant probative value – single tendency witness other than the complainant – whether probative value substantially outweighed any prejudicial effect on the defendant – tendency evidence correctly admitted – no miscarriage of justice arising from admission of tendency evidence
CRIME – appeals – appeal against conviction – unreasonable verdict – inconsistent verdict – where applicant had been convicted on one count of sexual touching of a child but acquitted on a further count of sexual intercourse with a child – where same complainant in respect of both counts – where incidents were alleged to have occurred as part of single episode – discrepancies between evidence of witnesses, including the complainant – significance accorded to the manner in which evidence of the complainant’s allegations emerged

Legislation Cited:
Crimes Act 1900 (NSW) ss 66C, 66DB
Crimes (Sentencing Procedure) Act 1999 (NSW) s 8, Pt 4, Div 1A
Criminal Appeal Act 1912 (NSW) ss 5, 6
Evidence Act 1995 (NSW) ss 97, 101
Jury Act 1977 (NSW)

Cases Cited:
Bektasovski v R [2022] NSWCCA 246
Elomar v R [2014] NSWCCA 303; 316 ALR 206
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Ford v R (2009) 201 A Crim R 451; [2009] NSWCCA 306
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
McPhillamy v R [2018] HCA 52; 92 ALJR 1045
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Papakosmas v The Queen (1999) 196 CLR 297; [1997] HCA 37
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v BD (1997) 94 A Crim R 131
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 23
Taylor v R [2020] NSWCCA 355
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40
TL v The King [2022] HCA 35; 96 ALJR 1072

Category: Principal judgment
Parties: Ethan Burns-Dederer (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J Brock/E Scoufis (Applicant)
S Traynor (Crown)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2019/306111

Judgment

SIMPSON AJA: On 6 May 2021 the applicant was arraigned in the District Court on an indictment that charged him with two counts of offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns-Dederer v R

Details

AGLC: Burns-Dederer v R [2023] NSWCCA 191
Case: [2023] NSWCCA 191
Decision Date: 07 August 2023

CaseChat Overview and Summary

The applicant was convicted of the offence of sexual touching of a child and acquitted of the offence of sexual intercourse with a child, arising from the same complainant. The applicant appealed against conviction, submitting that the trial judge erred in admitting tendency evidence and that the verdict was unreasonable. The tendency evidence included the testimony of a non-complainant witness who gave evidence of the applicant’s past sexual interest in children. The High Court held that the trial judge had correctly admitted the evidence. The probative value of the evidence substantially outweighed any prejudicial effect on the applicant. There was no miscarriage of justice arising from the admission of the tendency evidence. The High Court also dismissed the applicant’s contention that the verdict was unreasonable. The jury was entitled to prefer the evidence of the complainant over that of the applicant and his wife. The discrepancies between the evidence of the witnesses did not make the verdict unsafe or unsatisfactory.
The appeal was dismissed.

Orders