Dao v R (No 2) - [2014] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DAO v R (No 2) [2014] NSWCCA 126
Hearing dates: 5 December 2013
Decision date: 10 July 2014
Before: Simpson J at [1]; Adams J at [202]; Price J at [203]
Decision:
(1) The appeal against the conviction is allowed;

(2) The convictions and sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 are quashed, and verdicts of acquittal entered;

(3) The convictions and sentences in respect of counts 9 to 21 inclusive are quashed;
(4) In respect of those counts there be a new trial.
Catchwords: CRIMINAL LAW - appeal - conviction - sexual offences - Crimes Act 1900 (NSW) - multiple grounds pleaded - whether primary judge erred by failing to order separate trials for each of four complainants - whether primary judge erred by admitting evidence of tendency with respect to each respective complainant - sections 97 and 101 Evidence Act 1995 (NSW) - no jurisdiction to entertain this ground - issue litigated in DAO v R [2011] NSWCCA 63 - whether verdicts unreasonable and cannot be supported by evidence - jury ought to have entertained a doubt about the allegations made by two complainants - open to jury to be satisfied beyond reasonable doubt of guilt with respect to remaining two complainants - unable to exclude real possibility jury used flawed cases in support of their conclusions on remaining allegations - appeal against convictions allowed - convictions quashed - sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 quashed and verdicts of acquittal entered - sentences in respect of counts 9 to 21 inclusive quashed and new trials ordered
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3)
Evidence Act 1995 (NSW), s 97, s 101
Cases Cited: DAO v R (NSWDC, 4 November 2010, unreported)
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
DAO v The Queen [2011] HCA Trans 298
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: DAO (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Dalton SC (Appellant)
M Cinque (Respondent)
Solicitors:
Bannisters Lawyers (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/60628
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

07 December 2012

Before:

Zahra DCJ

File Number(s):

2009/60628

JUDGMENT

SIMPSON J: On 21 March 2012 the appellant was arraigned in the District Court in Sydney on an indictment that contained 23 counts (two of which were pleaded as alternatives to other counts on the indictment). He entered a plea of not guilty to all counts and a jury was empanelled. After a six-week trial, on 2 May 2012, the jury returned verdicts of guilty on each of the 21 primary counts. It was therefore unnecessary to return verdicts on the two alternative…

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 Dao v R (No 2)

Details

AGLC: Dao v R (No 2) [2014] NSWCCA 126
Case: [2014] NSWCCA 126
Decision Date: 10 July 2014

CaseChat Overview and Summary

In Dao v R (No 2), the appellant, previously convicted on a number of counts of sexual offences under the Crimes Act 1900 (NSW), appealed against his convictions. The appeal centred on the admissibility of evidence and the propriety of the trial process. The primary judge's decisions to deny separate trials for each complainant and to admit evidence of tendency were scrutinised, alongside the overall reliability of the jury's verdicts.

The legal issues addressed by the court included whether the primary judge had erred by failing to order separate trials for each of the four complainants and by admitting evidence of tendency concerning each respective complainant. These issues were considered in light of sections 97 and 101 of the Evidence Act 1995 (NSW). Additionally, the court evaluated whether the verdicts were unreasonable and not supported by the evidence, particularly whether the jury should have entertained doubts about the allegations made by two of the complainants, while remaining satisfied beyond reasonable doubt regarding the other two.

The court determined that there was no jurisdiction to entertain the issue of separate trials as it had already been adjudicated in Dao v R [2011] NSWCCA 63. However, the court found that the verdicts were indeed unreasonable and could not be supported by the evidence. It was concluded that the jury ought to have entertained doubts about the allegations made by two complainants, while it remained open to them to be satisfied beyond reasonable doubt regarding the remaining two. There was also a real possibility that the jury had used flawed cases in support of their conclusions on the remaining allegations. Consequently, the appeal against the convictions was allowed. The convictions were quashed, and sentences in respect of certain counts were quashed with verdicts of acquittal entered, while new trials were ordered for other counts.

Orders