2.Set aside the order of the Court of Criminal Appeal of New South Wales made on 25 August 2000 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with N Mikhaiel for the appellant (instructed by Henry Davis York)
R D Ellis with L M B Lamprati for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Dyers v The Queen
Criminal law and procedure – Appeal against conviction – Indecent assault of minor – Whether trial judge erred in directions to jury – Failure of defendant to call witnesses – Delay in making complaint – Longman v The Queen (1989) 168 CLR 79 considered – Unreasonable verdict – Unsworn statement by defendant – Order for new trial.
Evidence – Inferences – Criminal trial – Whether inferences open from failure to call witnesses – Application of Jones v Dunkel (1959) 101 CLR 298 to criminal trials.
GAUDRON AND HAYNE JJ. In 1999, the appellant was indicted, in the District Court of New South Wales, on a charge of indecently assaulting a 13 year old girl in 1988 – 11 years earlier. Although the indictment alleged that the offence had occurred between specified dates, by the end of the prosecution case it was clear that it was alleged that the assault had occurred on the morning of 29 July 1988. In an unsworn statement at his trial, the appellant acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. The appellant's appointment diary was tendered in evidence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30 am with two other persons, a meeting between 1.00 pm and 3.00 pm with several other persons, including the complainant's mother, and what was described as a "processing session" with a Ms Tinkler between 9.30 am and 11.30 am in a room called the "energy conversion room". The complainant swore that the appellant had indecently assaulted her in that room at the end of a "processing session" with her in the morning of 29 July 1988.
Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30 am and 1.00 pm gave evidence at the trial. The principal issue in the appeal is this. Did…
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.
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Details
AGLC
Dyers v The Queen [2002] HCA 45
Case
[2002] HCA 45
Decision Date
CaseChat Overview and Summary
The appellant, Dyers, was convicted in the District Court of New South Wales of indecently assaulting a 13-year-old girl in 1988. The alleged offence occurred on the morning of 29 July 1988. The appellant made an unsworn statement admitting to seeing the complainant that morning but claimed it was in the company of her mother and while he was engaged in other meetings. His appointment diary was tendered, showing various appointments, including one with Ms Tinkler for a "processing session" in the "energy conversion room" between 9:30 am and 11:30 am. The complainant testified that the indecent assault occurred in this room at the end of a "processing session" with her that morning. The High Court of Australia heard the appeal against this conviction.
The High Court was required to determine whether the trial judge erred in directions to the jury concerning the failure of the defendant to call witnesses and the implications of the delay in the complainant making her complaint. Additionally, the court considered whether the verdict was unreasonable and whether inferences could be drawn from the appellant's failure to call witnesses in a criminal trial, applying the principles from *Jones v Dunkel*.
The Court, comprising Gaudron and Hayne JJ, noted that the trial judge had directed the jury that they might draw an inference adverse to the appellant from his failure to call certain witnesses, including Ms Tinkler, who was mentioned in his diary. The High Court held that such an inference could not be drawn in a criminal trial, as it would shift the onus of proof from the prosecution to the accused. The Court also considered the direction regarding the delay in the complaint, referencing *Longman v The Queen*, and found that the jury directions were inadequate. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 25 August 2000 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.