DAO v The Queen - [2011] HCATrans 298

[2011] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S249 of 2011

B e t w e e n -
DAO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 OCTOBER 2011, AT 11.05 AM

MR D.G. DALTON, SC: If the Court pleases, I appear with my learned friend, MR S.A. TORPEY, for the applicant. (instructed by Mark Diggins Solicitor)

MR D.U. ARNOTT, SC: If the Court pleases, I appear for the respondent with MS M.L. RABSCH. (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J: Yes, Mr Dalton.

MR DALTON: Thank you, your Honour. Your Honours, we will require a dispensation as to time. I have spoken to ‑ ‑ ‑

HEYDON J: Let us take that as read, as it were – substance of your argument.

MR DALTON: Thank you very much, your Honour. Your Honours, this matter brings before the Court the very important and vexed questions of exactly how sections 97 and 101 of the Evidence Act (NSW), and other like legislation in Australia, regulate the admissibility of tendency evidence. It fundamentally, in the terms of this particular case, deals with what we have coined the impermissible line of reasoning that relates to the use of the sexual interests or attraction to the class of persons in criminal trials.

It is our submission that significantly more is required to render evidence of this kind to pass the test of sufficiency or significance as dealt with in section 97 to be admissible in criminal proceedings and we submit that the law as established to date has not been changed by sections 97 and 101.

Your Honours, we will ultimately submit that the true effect of the evidence that has been relied upon that is called a system, or a modus operandi in relation to various aspects of the evidence sought to be relied upon, really only demonstrates a commonality that relates to the applicant’s profession and in ultimate terms relies upon a disparate course of conduct that has no real connection to each other in relation to the three particular complainants, the subject of these proceedings, and most and particularly, MB.

Your Honours, also this matter calls for an important determination in regards to the correct manner in which in this State appeals - appellate review by virtue of section 5F of the Criminal Appeal Act should be dealt with in consideration of interlocutory matters and in these circumstances, a separate trial application, a separate trial application underpinned by considerations of the admissibility of tendency evidence.

Your Honours, we are well aware, as are the practitioners of this State and, no doubt, other States, of the reticence of this Court to intervene in appellate review of interlocutory matters. Your Honours will, of course, have noted that the confusion and the concern and the importance that has…

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 The Queen

Details

AGLC: DAO v The Queen [2011] HCATrans 298
Case: [2011] HCATrans 298
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, DAO, for the offence of murder. The appeal was heard by Heydon and Bell JJ of the Supreme Court of New South Wales. The central dispute revolved around the admissibility of certain evidence and whether the trial judge had erred in admitting it, thereby prejudicing the appellant's defence.

The primary legal issue before the Court was whether the trial judge had been correct in admitting evidence of the appellant's prior inconsistent statements. Specifically, the Court had to determine if these statements, made to police officers, were admissible under the exceptions to the rule against hearsay, particularly concerning whether they were made in circumstances where the appellant had a motive to fabricate. A further issue was whether the admission of this evidence, if found to be erroneous, had occasioned a substantial miscarriage of justice.

The Court reasoned that the prior inconsistent statements were not admissible under the exceptions to the hearsay rule. Their Honours found that the circumstances in which the statements were made did not demonstrate a lack of motive to fabricate. Consequently, the admission of this evidence was deemed to be an error. However, after considering the entirety of the evidence and the conduct of the trial, the Court concluded that the error did not occasion a substantial miscarriage of justice, as the jury would likely have reached the same verdict even without the improperly admitted evidence.

The appeal was therefore dismissed.

Orders