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DL v The Queen

DL v The Queen

Case [2017] NSWCCA 57 13 April 2017

Appeal

Expert Evidence

Procedural Fairness

Substantial Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: DL v R [2017] NSWCCA 57
Hearing dates: 7, 8, 9, 10 November 2016
Decision date: 13 April 2017
Before: Leeming JA; Rothman J; Wilson J
Decision:
1. Extend time and grant leave to appeal in relation to proposed grounds 1(a), 1(c) and 3.
2. Otherwise refuse leave.
3. Appeal against conviction dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - operation of proviso - murder - Crown case included expert blood spatter evidence - expert performed further experiments based on defence case during trial - Crown advised of those experiments and how expert would respond if cross-examined on defence case - no report provided - denial of procedural fairness - fresh evidence adduced on appeal established material error in expert's evidence at trial - whether substantial miscarriage of justice actually occurred - Crown case at trial aside from blood spatter evidence established guilt beyond reasonable doubt - further evidence available on appeal strengthened Crown case - proviso applied and appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B-15F
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules, r 4
Cases Cited: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Castle v The Queen; Bucca v The Queen [2016] HCA 46; (2016) 91 ALJR 93
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Giourtalis v R [2013] NSWCCA 216
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lindsay v The Queen (2015) 155 CLR 272; [2015] HCA 16
Lundy v The Queen (New Zealand) [2013] UKPC 28
Mortada v R [2014] NSWCCA 36
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Petersen v State of Western Australia (2016) 50 WAR 45; [2016] WASCA 66
R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373
R v Maybir (No 8) [2016] NSWSC 166
Stafford v The State [1999] 1 WLR 2026
The Queen v Baden-Clay [2016] HCA 35; (2015) 90 ALJR 1013
Tongahai v R [2014] NSWCCA 81; (2014) 241 A Crim R 217
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21
Category: Principal judgment
Parties: DL (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Bashir SC, D Barrow (Applicant)
N Adams (Crown)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2006/2875
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2008] NSWSC 1199

Date of Decision:

14 November 2008

Before:

RS Hulme J

File Number(s):

2006/2875

Judgment

THE COURT: DL stood trial before…

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 DL v The Queen

Details

AGLC: DL v The Queen [2017] NSWCCA 57
Case: [2017] NSWCCA 57
Decision Date: 13 April 2017

CaseChat Overview and Summary

The appellant, DL, was convicted of murder and sought to appeal the conviction on the basis that the Crown failed to provide a report of additional experiments conducted by a blood spatter expert during the trial. The appeal was heard in the High Court of Australia. The central issue in this appeal was whether the appellant was denied procedural fairness by the Crown's failure to provide a report of the additional experiments conducted by the expert witness, and if such denial constituted a substantial miscarriage of justice. The court also needed to determine if the Crown's case, excluding the contested expert evidence, was sufficient to establish the appellant's guilt beyond reasonable doubt, and whether any additional evidence presented on appeal sufficiently strengthened the Crown's case.

The High Court held that the Crown's failure to provide a report of the additional experiments did amount to a breach of procedural fairness. However, the court found that this breach did not result in a substantial miscarriage of justice. The reasoning was that the evidence presented during the trial, excluding the contested expert evidence, was sufficient to establish the appellant's guilt beyond reasonable doubt. Furthermore, the additional evidence brought forward during the appeal only served to strengthen the Crown's case rather than undermine it. Given these considerations, the proviso was applied, and the appeal was dismissed. The court concluded that the error did not materially affect the outcome of the trial and that the appellant's conviction was secure.

Orders