DS v R

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.