DJV v R

Case [2008] NSWCCA 272


Reported Decision: 200 A Crim R 206

New South Wales


Court of Criminal Appeal

CITATION: DJV v R [2008] NSWCCA 272
HEARING DATE(S): 29 July 2008
 
JUDGMENT DATE: 

19 November 2008
JUDGMENT OF: 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
LEGISLATION CITED: Evidence Act 1995
Crime (Sexual Assault) Amendment Act 1981
CATEGORY: Principal judgment
CASES CITED: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
HML v R [2008] HCA 16; (2008) 245 ALR 204
MM [2000] NSWCCA 78; (2000) 112 A Crim R 519
Pfennig [1995] HCA 7; (1995) 182 CLR 461
Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v AH (1997) 42 NSWLR 702
R v Beserick (1993) 30 NSWLR 510
R v Ellis (2003) 58 NSWLR 700
R v Fraser (NSWCCA, unreported, 10 August 1998
R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138
R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73
R v RNM [2005] NSWCCA 396
R v TAB [2002] NSWCCA 274
Toki [2000] NSWSC 999; (2000) 116 A Crim R 536
TEXTS CITED: 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 COURT JUDICIAL 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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