McClellan CJ at CL at 1; Hidden J at 58; Fullerton J at 59
DECISION:
1. Appeal upheld. 2. Conviction quashed. Remit the matter to the District Court for a new trial.
CATCHWORDS:
CRIMINAL LAW - evidence - where tendency evidence tendered for confined purpose as context or relationship evidence - admissibility - requirement that such evidence be relevant to an issue in the trial - improper admission of such evidence - miscarriage of justice - CRIMINAL LAW - appeal and new trial - misdirection by trial judge on permissible use of context or relationship evidence by jury - erroneous submissions by counsel - miscarriage of justice - STATUTES - Evidence Act 1995 ss 97, 101, 135, 137
S Odgers, Uniform Evidence Law, 7th ed, Thompson Lawbook Co
PARTIES:
DJV (Appellant) The Crown
FILE NUMBER(S):
CCA 2006/5263
COUNSEL:
C Davenport SC (Appellant) D Arnott SC (Crown)
SOLICITORS:
Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
05/31/0021
LOWER COURTJUDICIAL OFFICER:
English DCJ
LOWER COURT DATE OF DECISION:
6 December 2006
2006/5263
McCLELLAN CJ at CL HIDDEN J FULLERTON J
WEDNESDAY 19 NOVEMBER 2008
DJV v R
Judgment
NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT OR ANY FACTS THAT MAY IDENTIFY HER, INCLUDING THE APPELLANT’S NAME
1 McCLELLAN CJ at CL: The appellant was convicted of 2 counts on an indictment. The first count was that between 14 March 2002 and 31 May 2003 he had sexual intercourse with LB, without her consent, knowing that she was not consenting, she then being under the age of 16 years. The second count was that between 2 November 2003 and 11 November 2003 the appellant assaulted LB and at the time of such assault committed an act of indecency upon her, she then being under the age of 16 years. He was sentenced on…
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 DJV v R
Sign in free to access the full text
Details
AGLC
DJV v R [2008] NSWCCA 272
Case
[2008] NSWCCA 272
Decision Date
CaseChat Overview and Summary
The appeal before the court involved DJV, the appellant, against the Crown, the respondent. DJV was charged with serious criminal offences, including murder, and the case was heard in the Supreme Court of Victoria. The dispute centred around the admissibility of certain evidence, specifically tendency evidence that was tendered to provide context or insight into the relationship between the parties. The appellant contested the admission of this evidence, arguing that it was not relevant to any issue in the trial and that its inclusion was prejudicial and led to a miscarriage of justice.
The legal issues before the court included the proper application of sections 97, 101, 135, and 137 of the Evidence Act 1995 concerning the admissibility of tendency evidence. The court had to determine whether the evidence was relevant to an issue in the trial and whether it was permissible to use such evidence to establish context or relationship. Additionally, the court examined whether the trial judge's directions to the jury regarding the use of context or relationship evidence were correct, as well as the impact of any erroneous submissions by counsel on the trial's outcome.
The court found that the evidence in question was improperly admitted as it did not meet the relevance threshold required by the Evidence Act. The court noted that the evidence was not necessary to establish any fact of consequence in the determination of the action. Moreover, the trial judge misdirected the jury on the permissible use of context or relationship evidence, and counsel made erroneous submissions that further compounded the error. These issues combined to create a substantial risk of a miscarriage of justice. Consequently, the court allowed the appeal and ordered a new trial to ensure a fair and just outcome.