Legal Research
Cases
Dao v The Queen

Dao v The Queen

Case [2011] NSWCCA 63 1 April 2011

Appeal

Jurisdiction

Admissibility of Evidence

Interlocutory Orders

Judicial Review

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DAO v R [2011] NSWCCA 63
Hearing dates: 9 November 2010
Decision date: 01 April 2011
Before: Spigelman CJ at 1; Allsop P at 71; Simpson J at 108; Kirby J at 211; Schmidt J at 212
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - interlocutory orders - s 5F(3) Criminal Appeal Act 1912 - order for joint trial - sole issue determinative of appeal concerns admissibility of tendency evidence - whether leave ought to be granted - approach to judicial review of decisions on admissibility of evidence under s 97 Evidence Act - leave granted - appeal dismissed
CRIMINAL LAW - appeal - jurisdiction of the Court - ruling on admissibility of evidence not "interlocutory judgment or order" within s 5F - order for joint trial - jurisdiction established
CRIMINAL LAW - appeal - interlocutory orders - standard of appellate review of decisions on admissibility of evidence under s 97 Evidence Act - conflict of authority - whether reviewable under principles in House v The King [1936] HCA 40; 55 CLR 499 or Warren v Coombes [1979] HCA 9; 142 CLR 531 - characterisation of decision - practical considerations
CRIMINAL LAW - appeal - whether test applicable for review under s 5F different from test on appeal following conviction - whether a decision under s 5F precludes further consideration under s 5(1) and s 6(1) Criminal Appeal Act
EVIDENCE - tendency - s 97 and s 101 Evidence Act - whether a decision under s 101 is a "separate decision" - whether evidence of more serious conduct can support allegations of less serious conduct and vice versa - no misapplication of principle
EVIDENCE - tendency - sexual offences - pattern of behaviour - sexual interest - vulnerability of particular complainants - "grooming" for sexual exploitation - whether probative value "significant" - no unfair prejudice
WORDS AND PHRASES - "judgment" - "discretion"
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alexandroaia v R (1995) 81 A Crim R 286
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Antonovicv Volker (1986) 7 NSWLR 151
AW v R [2009] NSWCCA 1
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Buck v Bavone (1976) 135 CLR 110
Can v R [2007] NSWCCA 176
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Coal and Allied Operations Pty Ltd v…

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] NSWCCA 63
Case: [2011] NSWCCA 63
Decision Date: 01 April 2011

CaseChat Overview and Summary

The case of Dao v The Queen involved an appeal against interlocutory orders concerning the admissibility of tendency evidence. The decision of the court was to determine the appropriate standard of review for such decisions and whether the appeal was subject to the provisions of section 5F of the Criminal Appeal Act 1912. The High Court of Australia was tasked with resolving these issues.

The legal issues at hand revolved around the interpretation and application of section 5F of the Criminal Appeal Act and the standard of review for decisions concerning the admissibility of evidence under section 97 of the Evidence Act. The court had to determine whether the ruling on the admissibility of evidence was an "interlocutory judgment or order" within the meaning of section 5F and whether the standard of review for such decisions was different when compared to the review following a conviction. Furthermore, the court had to decide if the test for review under section 5F precluded further consideration under sections 5(1) and 6(1) of the Criminal Appeal Act.

In its reasoning, the court concluded that the ruling on the admissibility of evidence was not an "interlocutory judgment or order" within the meaning of section 5F of the Criminal Appeal Act. Therefore, the court had jurisdiction to hear the appeal. The court further held that the standard of review for decisions on the admissibility of evidence under section 97 of the Evidence Act was consistent with the principles set out in House v The King and Warren v Coombes. The court found that the characterisation of the decision and practical considerations were critical in determining the appropriate standard of review. The court also clarified that the test for review under section 5F did not preclude further consideration under sections 5(1) and 6(1) of the Criminal Appeal Act.

The final orders of the court were that leave to appeal was granted, and the appeal was dismissed. The court emphasised that the evidence of more serious conduct could support allegations of less serious conduct and vice versa, provided that the probative value was significant and there was no unfair prejudice. The court also noted that there was no misapplication of the principle in question.

Orders