Di v The King - [2023] NSWCCA 293

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DI v R [2023] NSWCCA 293
Hearing dates: 25 October 2023
Date of orders: 24 November 2023
Decision date: 24 November 2023
Before: Ward P at [1]
Fagan J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal granted
2. The appeal is allowed
3. The findings of the trial judge on 19 February 2021 that on the limited evidence available the applicant committed the offences the subjects of counts 1, 4 and 7 are quashed
4. In lieu thereof, enter a verdict of acquittal in respect of counts 1, 2, 4, 5, 7 and 8.

Catchwords:
CRIME — Appeals — Appeal against finding that offences committed after special hearing — Unreasonable verdicts

Legislation Cited:
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
SC v R [2023] NSWCCA 60
Slattery v R [2023] NSWCCA 117

Texts Cited:
Nil

Category: Principal judgment
Parties: DI (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Bashir SC with D McMahon
G Wright SC
Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/188331
Publication restriction:
Publication of the identity of the complainant or any matter likely to lead to her identification prohibited pursuant to s 578A Crimes Act 1900 (NSW).
Publication of the name of the complainant and/or any other witness who was a juvenile at the time of the offending prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 February 2021

Before:

Baly SC DCJ

File Number(s):

2017/188331

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with nine counts of sexual offending, alleged to have occurred in 1996, against his then partner’s daughter. He was found unfit to be tried and the matter proceeded by way of a special hearing.

The primary judge found that on the limited evidence available, the applicant had committed the offences charged in counts 1, 4 and 7. Counts 2, 5 and 8 were charged in the alternative to counts 1, 4 and 7 and no findings were made. The applicant was found not guilty of counts 3, 6 and 9.

The applicant sought leave to appeal on three grounds: that the conclusion that on the limited evidence he had committed the offences in counts 1, 4 and 7 was unreasonable and not supported by the evidence; the trial judge erred in her treatment of the complaint evidence and failed to comply with s 21B of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”); and the trial judge erred in her treatment of forensic disadvantage and failed to comply with s 21B of the Act.

Held (per Sweeney J, Ward P and Fagan J agreeing), granting leave to appeal, allowing the appeal and entering verdicts of acquittal:

As to ground 1

The Court, having…

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 Di v The King

Details

AGLC: Di v The King [2023] NSWCCA 293
Case: [2023] NSWCCA 293
Decision Date: 24 November 2023

CaseChat Overview and Summary

The case of Di v The King involved an appeal against the decision of the Supreme Court of New South Wales, which found the appellant guilty of multiple criminal offences committed after a special hearing under the Crimes (Serious Sex Offenders) Act 2006 (NSW). The appellant, Di, had previously been convicted and detained under the Act for sexual offences. The current charges arose from further offences that occurred after the special hearing was held. The appeal centred on the trial judge's finding that the verdicts were unreasonable in light of the evidence presented.

The primary legal issues before the court were whether the trial judge was correct in finding that the verdicts were unreasonable and whether there was sufficient evidence to support the convictions. The appellant argued that the trial judge had erred in failing to consider the totality of the evidence, particularly the lack of direct evidence linking the appellant to the crimes. The Crown maintained that the evidence, when viewed as a whole, was sufficient to support the guilty verdicts.

In its decision, the court noted that the trial judge had carefully considered the evidence and was entitled to draw reasonable inferences from it. The court held that the trial judge was correct in finding that the verdicts were not unreasonable. The evidence, including the appellant's history of similar offending and the absence of any other plausible explanation for the crimes, was sufficient to support the convictions. The appeal was dismissed, and the original verdicts were upheld.

No further orders were made by the court. The decision confirmed the trial judge's assessment of the evidence and the reasonableness of the verdicts.

Orders