DS v R

Case [2018] NSWCCA 195 10 September 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DS v R [2018] NSWCCA 195
Hearing dates: 27 June 2018
Decision date: 10 September 2018
Before: Basten JA at [1];
Wilson J at [14];
Lonergan J at [119]
Decision:
(1)   Appeal against conviction is upheld.
(2)   Conviction and sentence are quashed.
(3)   Matter remitted to the District Court.

Catchwords:
CRIMINAL LAW – conviction appeal – sexual intercourse without consent – homosexual intercourse with male under 10 years – admissibility of tendency evidence – tendency incidents the subject of acquittals – acquittals based upon failure of Crown to rebut common law presumption of doli incapax – whether tendency evidence left to jury on a basis that controverted acquittals
EVIDENCE – tendency evidence – probative value –prior conduct the subject of acquittals – acquittals based on failure to prove offender capable of criminal intent – whether tendency evidence relevant only to actus reus of further offending – basis on which tendency evidence could be left to jury – tendency to “sexually assault” children – admissibility of recorded admissions to tendency incidents
Legislation Cited: Crimes Act 1900 (NSW), ss 61D, 78H
Evidence Act 1995 (NSW), ss 97, 99, 101, 137
Cases Cited: BC v R [2015] NSWCCA 327
Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206
Gilham v R 178 A Crim R 72; [2012] NSWCCA 131
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Paul Campbell v R [2018] NSWCCA 87
Regina v Z [2000] 2 AC 483
RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
Saraswati v The Queen (1990-1991) 172 CLR 1; [1991] HCA 21
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
Category: Principal judgment
Parties: DS – Appellant
Regina - Respondent
Representation:
Counsel:
Mr I. McLachlan – Appellant
Mr N. Adams – Crown
Solicitors:
D. Miralis – Appellant
C. Hyland – Solicitor for Public Prosecutions

File Number(s): 2015/83514
Publication restriction: A statutory non-publication provision operates to prevent publication of any information which could tend to identify the complainant, SS, or the witness BS.
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Criminal

Date of Decision:

17 March 2017

Before:

Berman SC DCJ

File Number(s):

2015/83514

Judgment

BASTEN JA: I agree with Wilson J that the conviction appeal should be upheld and the conviction of the appellant quashed.
I also agree with the reasoning of Wilson J that this conclusion follows because of the way that the evidence of the appellant’s earlier conduct with his 4 year old niece (that is, placing her hand on his penis) was left to the jury. However, in my view the evidence should have been rejected as inadmissible on the charges of fellatio with his nephew some six or seven years later.
The question of inadmissibility involves three steps. First, there is the principle that a…

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 DS v R

Details

AGLC: DS v The Queen [2018] NSWCCA 195
Case: [2018] NSWCCA 195
Decision Date: 10 September 2018

CaseChat Overview and Summary

In the case of DS v R, the appellant sought to appeal his conviction for engaging in sexual intercourse with a male under the age of 10 years, in circumstances where consent was absent. The appeal was heard in the High Court of Australia. The appellant's primary contention was that the trial judge erred in allowing evidence of prior incidents of sexual assault against the same complainant, which had been the subject of prior acquittals, to be admitted before the jury. These prior incidents were acquitted due to the Crown's failure to rebut the common law presumption of doli incapax.

The central legal issues before the court were whether the trial judge erred in admitting the tendency evidence, and if so, whether this error was so significant that it affected the safety of the appellant's conviction. The appellant argued that the tendency evidence was inadmissible as it was left to the jury on a basis that controverted the acquittals, and it was irrelevant to the issue of the actus reus of the charged offence. The appellant contended that the evidence was only relevant to the issue of the appellant's propensity to sexually assault children and that it should not have been left to the jury. The appellant further argued that the recorded admissions to the tendency incidents should not have been admitted as they were inadmissible hearsay.

The High Court held that the trial judge did indeed err in allowing the tendency evidence to be left to the jury on a basis that controverted the acquittals. The Court found that the evidence had the potential to undermine the acquittals and that this was not a permissible use of the evidence. The Court found that the evidence was only relevant to the issue of the appellant's propensity to commit the offence and that it was not relevant to the issue of the actus reus of the charged offence. The Court held that the recorded admissions to the tendency incidents were inadmissible hearsay and should not have been admitted. The Court found that the error in admitting the tendency evidence was significant enough to affect the safety of the appellant's conviction and allowed the appeal. The conviction was quashed and a re-trial ordered.

Orders