Legal Research
Cases
Donohoe v The Queen

Donohoe v The Queen

Case [2017] NSWCCA 174 21 July 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donohoe v R [2017] NSWCCA 174
Hearing dates: 30 June 2017
Decision date: 21 July 2017
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Garling J at [108]
Decision:
1. Leave to appeal against the conviction on all grounds except Ground 1 (in part) granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against conviction – sexual offences against three cognitively impaired complainants – thirteen counts – whether evidence of complainants was unreliable - whether conduct of trial was unfair – tendency evidence – implied admission - no error in trial judge’s analysis of the evidence, findings of fact or application of the law – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Bryant v R [2011] NSWCCA 26
CR v R [2017] NSWCCA 29
DJW v R [2015] NSWCCA 164
Hughes v R [2017] HCA 20
Kelly v R (2004) 218 CLR 216; [2004] HCA 12
Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
Mcintosh v R [2015] NSWCCA 184
Nguyen V R [2017] NSWCCA 145
Category: Principal judgment
Parties: Robert Donohoe (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Hughes (Crown)
Solicitors:
In person (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/273144
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 November 2015

Before:

Williams ADCJ

File Number(s):

2014/273144

Judgment

HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.
FULLERTON J: On 9 November 2015 the applicant pleaded not guilty to an indictment containing thirteen counts variously laid contrary to s 66F(3) and s 61J(1) of the Crimes Act 1900 (NSW). Twelve of the thirteen counts concerned two male complainants, referred to hereinafter as Complainant B and Complainant C. The thirteenth count concerned another male complainant, hereinafter referred to as Complainant A.
Five of the thirteen counts alleged that the applicant took advantage of Complainant B by reason of his cognitive impairment, intending to have sexual intercourse with him contrary to ss 66F(3) of the Crimes Act. A further five counts alleged sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act, the circumstance of aggravation being Complainant B’s cognitive impairment. The charges under s 61J(1) were laid in the alternative to the charges under s 66F(3).
One of the thirteen counts on the indictment, also laid contrary to ss 66F(3) of the Crimes Act, alleged sexual intercourse where advantage was taken of Complainant C by reason of his cognitive impairment, with an alternative count laid contrary to s 61J(1) alleging sexual intercourse without his consent in circumstances of aggravation.
The last of the thirteen counts concerned Complainant A. It was laid contrary to s 66F(3) of the Crimes Act. No alternative count was laid in respect of that complainant.
The…

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 Donohoe v The Queen

Details

AGLC: Donohoe v The Queen [2017] NSWCCA 174
Case: [2017] NSWCCA 174
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case of Donohoe v The Queen involved the appellant, Donohoe, who was convicted by the Supreme Court of Victoria on thirteen counts related to sexual offences against three cognitively impaired complainants. The decision was appealed to the High Court of Australia, where the appellant contended that the evidence presented by the complainants was unreliable, the trial conduct was unfair, and that the trial judge erred in his analysis of the evidence and application of the law.

The High Court examined whether the trial judge had erred in his analysis of the evidence, particularly the reliability of the complainants' testimonies, and if the trial was conducted in a manner that could be considered unfair. The court also assessed whether the trial judge had correctly applied the law, including the use of tendency evidence and implied admissions. The appellant argued that the evidence was unreliable due to the cognitive impairments of the complainants and that the trial was unfair due to the handling of the evidence.

The High Court found that there was no error in the trial judge’s analysis of the evidence, findings of fact, or application of the law. The court held that the trial judge had appropriately assessed the reliability of the evidence and the cognitive impairments of the complainants did not render their testimonies unreliable. The court also found that the trial was conducted fairly and that the trial judge had correctly admitted and considered the tendency evidence and implied admissions. Consequently, the appeal was dismissed, affirming the conviction of Donohoe on all thirteen counts.

Orders