DH v The Queen - [2020] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DH v R [2020] NSWCCA 2
Hearing dates: 20 November 2019
Decision date: 06 February 2020
Before: Hoeben CJ at CL at [1];
Price J at [145];
Campbell J at [147]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – judge alone trial – twelve counts of sexual offending against four victims – applicant convicted of seven and acquitted on five counts – victims aged between 5 and 15 – tendency evidence – a single ground of appeal – whether verdicts of guilt were unreasonable having regard to the evidence – applicant’s case that evidence had been concocted – complainants found by judge to be honest – evidence established physical abnormality in applicant – failure of complainants to give evidence of physical abnormality – whether this failure rendered guilty verdicts unreasonable – evidence of three complainants found to be reliable – verdicts of guilt not unreasonable – conviction appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61M, 61O
Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Filippou v The Queen (2015) CLR 47; [2015] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53;
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: DH – Applicant
Regina – Respondent Crown
Representation:
Counsel:
TD Anderson – Applicant
B Baker – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/311458
Publication restriction: Statutory prohibition on publication in relation to identity of complainants and non-publication orders in relation to the identity of the applicant and family witnesses.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 June 2018

Before:

Gartelmann SC DCJ

File Number(s):

2015/311458

JUDGMENT

HOEBEN CJ at CL:

Introduction

The applicant stood trial at the District Court at Lismore before Gartelmann SC DCJ (the trial judge), sitting without a jury, in respect of 12 sexual offences that were alleged to have been committed by the applicant against his son, DH, and step-sons, JS and JG.

In a judgment delivered on 29 June 2018, the trial judge found the applicant guilty of the following counts:

(i) Counts 2 and 3, which each alleged that the applicant incited JS, a person then under the age of 10 years, to perform an act of indecency with him contrary to s 61O(2) of the Crimes Act 1900 (NSW);

(ii) Count 4, which alleged that the applicant indecently assaulted JS, a person then under the age of 10 years contrary to s 61M(2) of the Crimes Act;

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 DH v The Queen

Details

AGLC: DH v The Queen [2020] NSWCCA 2
Case: [2020] NSWCCA 2
Decision Date: 06 February 2020

CaseChat Overview and Summary

The applicant, DH, appealed against his conviction for sexual offences against four victims, aged between 5 and 15. The case was heard by a judge alone, and DH was convicted on seven counts while acquitted on five. The primary issue before the court was whether the verdicts of guilt were unreasonable given the evidence presented. The applicant argued that the evidence had been fabricated, contending that the complainants' failure to testify about a physical abnormality in him undermined their credibility.

The court addressed the reliability of the evidence and the judge's assessment of the complainants' honesty. It found that the evidence from three complainants was reliable and corroborated by other evidence. The court held that the failure of the complainants to mention the physical abnormality did not necessarily render the verdicts unreasonable. The judge's assessment that the complainants were credible witnesses was upheld, and the appeal against conviction was dismissed.

The reasoning of the court was grounded in the judge's evaluation of the complainants' credibility and the consistency of their testimonies. The court confirmed that the evidence supported the verdicts, and the judge's findings were not illogical or unreasonable. Consequently, the appeal was dismissed, and DH's convictions were affirmed. The court found no basis to interfere with the judge's conclusions, thereby upholding the verdicts of guilt.

Orders