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Dries v R

Dries v R

Case [2022] NSWCCA 33 23 February 2022

Appeal

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Constitutional Validity

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dries v R [2022] NSWCCA 33
Hearing dates: 12 November 2021
Date of orders: 23 February 2022
Decision date: 23 February 2022
Before: Macfarlan JA at [1];
Rothman J at [71];
Dhanji J at [75]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against convictions following refusal of application to discharge jury – references in prosecutor’s address to complainant’s lack of sexual experience – s 293 Criminal Procedure Act – retractions by Crown and trial judge’s directions to jury overcame prejudice – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 66A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), s 293

Cases Cited:
Browne v Dunn (1893) 6 R 67
Caleo v R [2021] NSWCCA 179
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808
Greenaway v R [2021] NSWCCA 253
Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Maric v The Queen (1978) 52 ALJR 631
Medich v R [2021] NSWCCA 36
Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
Munn v Regina; Miller v Regina [2006] NSWCCA 61
Orreal v The Queen [2021] HCA 44
Rogerson v R [2021] NSWCCA 160
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Y v Regina [2009] NSWCCA 287

Category: Principal judgment
Parties: Mr Rodney Stephen Dries (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Robinson (Applicant)
C Curtis (Respondent)
Solicitors:
T&S Law Firm (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/224976
Publication restriction: Statutory non-publication order on the identity of the complainant under s 578A Crimes Act 1900 (NSW) and on the identities of her half-siblings under s 15A Children (Criminal Proceedings) Act 1987 (NSW). An order was made by the District Court on 27 July 2020 that the non-publication orders extend to the names of the complainant’s mother and maternal grandfather.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 November 2020

Before:

Beckett DCJ

File Number(s):

2019/224976

Judgment

MACFARLAN JA: On 27 July 2020 the applicant was arraigned in the District Court before a judge and a jury panel on an indictment charging him with having had sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). After the applicant pleaded not guilty, a jury was empanelled and the trial proceeded, culminating in the jury returning a unanimous verdict of guilty on 11 August 2020. The applicant seeks leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on the following ground:

“A miscarriage of justice was occasioned as a result of the trial judge’s failure to discharge the jury”.

The indictment…

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 Dries v R

Details

AGLC: Dries v R [2022] NSWCCA 33
Case: [2022] NSWCCA 33
Decision Date: 23 February 2022

CaseChat Overview and Summary

In Dries v R, the appellant was convicted of sexual offences following a trial at which the jury heard the prosecutor make comments about the complainant's lack of sexual experience. The appellant appealed against his convictions, arguing that the remarks were a breach of section 293 of the Criminal Procedure Act, which provides that no comment is to be made in any court on the credit of a witness that is likely to injure that witness in the estimation of the court or jury. The respondent submitted that the remarks did not constitute a breach of section 293 and, in any event, any prejudice was cured by the Crown's retraction and the trial judge's directions to the jury.

The court was required to decide whether the prosecutor's comments breached section 293 of the Criminal Procedure Act and, if so, whether the breach was cured by the Crown's retraction and the trial judge's directions to the jury. The court considered that the prosecutor's remarks were not a breach of section 293 as they did not comment on the complainant's credit in the sense of her honesty or veracity. However, the court found that the remarks were likely to injure the complainant in the estimation of the jury. The court also considered whether the Crown's retraction and the trial judge's directions to the jury overcame any prejudice caused by the remarks. The court found that the retraction and directions were sufficient to cure any prejudice caused by the remarks.

The court dismissed the appeal against conviction. The court found that the prosecutor's remarks, while not a breach of section 293, were likely to injure the complainant in the estimation of the jury. However, the court found that the Crown's retraction and the trial judge's directions to the jury overcame any prejudice caused by the remarks. The court found that the trial judge's directions to the jury were clear and sufficient to ensure that the jury did not give undue weight to the remarks. The court also found that the Crown's retraction was sufficient to cure any prejudice caused by the remarks. The appeal against conviction was dismissed.

Orders