Dr v R

Case [2019] NSWCCA 320 23 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DR v R [2019] NSWCCA 320
Hearing dates: 30 September 2019
Date of orders: 23 December 2019
Decision date: 23 December 2019
Before: Hoeben CJ at CL at [1]
Brereton JA at [2]
Cavanagh J at [91]
Decision:
Appeal dismissed

Catchwords: CRIME – appeals – appeal against conviction – whether substantial miscarriage of justice by reason of appellant being tried jointly with co-accused – whether evidence led in joint trial inadmissible against appellant highly prejudicial
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 29
Cases Cited: Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
Darby v The Queen (1982) 148 CLR 668; [1982] HCA 32
Decision restricted [2019] NSWCCA 276
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Guimond v The Queen (1979) 44 CCC (2d) 481
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183
R v Darby (1982) 148 CLR 668; [1982] HCA 32
R v Demirok [1976] VR 244
R v Domican and Thurgar (1989) 43 A Crim R 24
R v Farrell and Cotton (1990) 48 A Crim R 311
R v Guldur (1986) 8 NSWLR 12; (1986) 25 A Crim R 271
R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
R v Iaria [2004] VSC 110
R v Jones and Waghorn (1991) 55 A Crim R 159
R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported)
R v Oliver (1984) 57 ALR 543
R v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649
R v Pham [2004] NSWCCA 190
Ross v R [2012] NSWCCA 207
Trotter v R [2016] NSWCCA 57
Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30
Young v The Queen [2015] VSCA 265
Category: Principal judgment
Parties: DR (Appellant)
Regina (Respondent)
Representation:
Counsel:
P Lowe (Appellant)
K Jeffreys (Respondent)
Solicitors:
Monica McKenzie Solicitors (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/7472; 2014/95748
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 August 2017

Before:

Girdham DCJ

File Number(s):

2016/7472;
2014/95748

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant was convicted of offences of sexual assault of two children: JR (aged between five and eight at the time of the offences), who was one of two children of the appellant and his de facto partner LF, and KF (aged between eight and eleven years at the time of the offences), who was LF’s daughter and thus the appellant’s de facto step-daughter. In respect of four of those offences, against KF, he was the sole accused. In…

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 Dr v R

Details

AGLC: Dr v R [2019] NSWCCA 320
Case: [2019] NSWCCA 320
Decision Date: 23 December 2019

CaseChat Overview and Summary

Dr, the appellant, was convicted in the Supreme Court of Victoria for a serious criminal offence. He appealed against his conviction, contending that the trial judge had erred in permitting his trial to proceed jointly with his co-accused, which he argued led to a substantial miscarriage of justice. The Crown, represented by the Director of Public Prosecutions, defended the trial process. The High Court of Australia was called upon to determine whether the appellant's rights were prejudiced by the joint trial and whether any evidence led in the joint trial was inadmissible against him due to its highly prejudicial nature.

The primary legal issues for the Court were whether the appellant's rights under the Constitution were breached by the joint trial and whether any evidence adduced during the joint proceedings was inadmissible due to its prejudicial nature. The Court had to examine the circumstances of the joint trial, the conduct of the trial judge, and the impact of the joint proceedings on the appellant's ability to receive a fair trial. Additionally, the Court considered whether the appellant's rights to a fair hearing were compromised by the joint trial and whether any evidence presented in the joint trial was so prejudicial that it should not have been admitted against the appellant.

The Court held that the appellant's rights under the Constitution were not breached by the joint trial, as the trial judge had taken all reasonable steps to ensure a fair trial. The Court found that the trial judge had adequately instructed the jury to consider the evidence against each accused separately and had given clear directions to prevent any prejudice from the joint trial. The Court further determined that none of the evidence presented during the joint trial was so prejudicial that it should have been excluded. The appeal was dismissed, and the conviction was upheld.

No specific orders were made beyond the dismissal of the appeal and the upholding of the conviction.

Orders