Denton v The Queen - [2020] NSWCCA 341

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Denton v R [2020] NSWCCA 341
Hearing dates: 3 June 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Before: Simpson AJA at [1]
Bellew J at [78]
Wilson J at [79]
Decision:
1. The time in which to appeal is extended to 2 December 2020.
2. Leave is granted to appeal against the conviction of 9 July 2018 for the offence of committing an act of indecency.
3. Appeal allowed, conviction set aside.
4. A verdict of acquittal is entered.

Catchwords:
CRIME — Appeal — Appeal against conviction — point not raised below – where expert evidence admitted in first trial was ruled inadmissible in second trial – where ruling of trial judge in second trial was upheld in Court of Criminal Appeal – where following second trial the applicant sought leave to appeal against conviction in first trial – where no objection was taken to evidence at first trial – leave granted under r 4 Criminal Appeal Rules (NSW) as admission of the evidence led to a miscarriage of justice
CRIME — Appeal — Appeal against conviction — miscarriage of justice — where Crown relied on the complainant’s drawing depicting an “abnormal skin flap” on applicant’s penis – where Crown adduced expert evidence from a general practitioner that there was no “major abnormality” in the applicant’s penis but it was “moderately unusual” – where general practitioner did not have specialised knowledge of anatomy or urology based on relevant training, study or experience – where jury invited to make comparison of drawing and photograph based on expert evidence of abnormality – held, admission of evidence led to miscarriage of justice – appeal allowed, conviction set aside – verdict of acquittal entered

Legislation Cited:
Crimes Act 1900 (NSW), s 61N(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Crimes (Forensic Procedures) Act 2000 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 5F(3A)
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW), ss 76, 79.

Cases Cited:
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
R v Denton [2019] NSWCCA 81
R v Thomas Denton, District Court (NSW), 3 April 2019, unrep
Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402

Category: Principal judgment
Parties: Thomas Denton (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Smith SC/A Cook (Applicant)
M Kumar (Crown)
Solicitors:
Macedone Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/69651
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 July 2018

Before:

Madgwick ADCJ

File Number(s):

2017/69651

Judgment

SIMPSON AJA: In June and July 2018 the applicant stood trial in the District Court on an indictment that contained 16 counts (6 of which were alternatives to principal counts), each of which alleged a…

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 Denton v The Queen

Details

AGLC: Denton v The Queen [2020] NSWCCA 341
Case: [2020] NSWCCA 341
Decision Date: 18 December 2020

CaseChat Overview and Summary

Denton has appealed against his conviction in the first trial, arguing that the admission of expert evidence in the second trial was erroneous and led to a miscarriage of justice. The appeal was initially dismissed by the Court of Criminal Appeal, but Denton subsequently sought leave to appeal against the conviction in the first trial under rule 4 of the Criminal Appeal Rules (NSW). The court granted leave, recognising that the admission of the expert evidence in the second trial was a miscarriage of justice. The appeal concerns the admissibility of expert evidence presented in the second trial, specifically regarding the complainant's drawing depicting an "abnormal skin flap" on Denton's penis. The Crown's expert, a general practitioner, testified that while there was no "major abnormality," the condition was "moderately unusual." However, the general practitioner lacked specialised knowledge of anatomy or urology, which was crucial for evaluating the significance of the alleged abnormality. The court found that the admission of this expert evidence led to a miscarriage of justice as it influenced the jury's comparison of the drawing and a photograph of Denton's penis. Consequently, the appeal was allowed, the conviction was set aside, and a verdict of acquittal was entered.

The central legal issue before the court was whether the admission of the expert evidence in the second trial was a miscarriage of justice. The court examined the qualifications of the general practitioner and determined that the expert lacked the necessary specialised knowledge in anatomy or urology. This deficiency undermined the reliability and relevance of the expert's opinion on the alleged abnormality. The court found that the admission of this flawed expert evidence was prejudicial and led to a miscarriage of justice, affecting the outcome of the trial. The court's reasoning hinged on the necessity for expert testimony to be based on adequate expertise and relevant training, study, or experience to ensure its reliability and relevance. Given the deficiency in the expert's qualifications, the court concluded that the admission of the evidence in the second trial was a miscarriage of justice, leading to the allowance of the appeal and the setting aside of the conviction.

Orders