DJS v R

The appeal was brought by the appellant against his conviction for sexual offences against his stepdaughter. The appeal was heard by the NSW Court of Criminal Appeal, with the decision being that the appeal should be dismissed. The appellant had been convicted of two counts of sexual penetration without consent, contrary to s 61HA(1) of the Crimes Act 1900 (NSW), and one count of sexual intercourse without consent, contrary to s 61I(1)(a) of the same Act. The appellant had been sentenced to a total of 16 years imprisonment, with a non-parole period of 12 years.

The legal issue that the court was required to decide was whether the trial judge’s failure to direct the jury that uncharged incidents suggesting sexual interest in the complainant must be proved beyond reasonable doubt amounted to a miscarriage of justice. The appellant argued that the trial judge should have directed the jury that the uncharged incidents had to be proved beyond reasonable doubt, and that this failure deprived him of a fair trial. The appellant submitted that the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) should be applied, which provides that an appeal against conviction shall not be allowed unless the court is of the opinion that a miscarriage of justice has actually occurred or that the appellant was deprived of a fair trial. The Crown submitted that the trial judge’s failure to give a direction on the uncharged incidents did not amount to a miscarriage of justice, and that the appellant was not deprived of a fair trial.

The court held that the trial judge’s failure to direct the jury that the uncharged incidents had to be proved beyond reasonable doubt was an error, but it did not amount to a miscarriage of justice. The court held that the error did not deprive the appellant of a fair trial, as the jury would have been aware that the uncharged incidents had to be proved beyond reasonable doubt, and the appellant did not submit that any prejudice arose from the trial judge’s failure to give the direction. The court held that the evidence of the complainant was clear, cogent and compelling, and that the jury had been properly directed on the principles of corroboration and on the need to be satisfied beyond reasonable doubt of the appellant’s guilt. The court held that the error was not so fundamental as to deprive the appellant of a trial according to law.

The court dismissed the appeal.