Jeffrey Wayne DAVIE v R - [2008] NSWCCA 2

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Jeffrey Wayne DAVIE v R [2008] NSWCCA 2

FILE NUMBER(S):
2006/5106

HEARING DATE(S):
10 December 2007

JUDGMENT DATE:
29 January 2008

PARTIES:
Jeffrey Wayne Davie
Regina

JUDGMENT OF:
Grove J Simpson J Barr J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0296

LOWER COURT JUDICIAL OFFICER:
Coolahan DCJ

LOWER COURT DATE OF DECISION:
21 September 2006

COUNSEL:
H Dhanji (Appellant)
D Woodburne (Crown)

SOLICITORS:
Burke and Elphick Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - objections not taken at trial - evidence of complaint - miscarriage of justice - DNA evidence - jury making a finding of guilt on one or more counts in the indictment when considering any other count in the indictment

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED:
R v Abusafiah (1991) 24 NSWLR 531
Papakosmas v The Queen (1999) 196 CLR 297
Domican v The Queen (1992) 173 CLR 555
R v TJF [2001] NSWCCA 127
R v GK (2001) 125 A Crim R 351
R v Markulevski (2001) 52 NSWLR 82

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5106
GROVE J
SIMPSON J
BARR J
29 JANUARY 2008

JEFFREY WAYNE DAVIE v REGINA

Judgment

GROVE J: I agree with Barr J.
SIMPSON J: I agree with Barr J.
BARR J: This is an appeal against convictions entered in the District Court after a trial by jury. The appellant, Jeffrey Wayne Davie, was convicted of three offences. The first was constituted by an act of fellatio on a boy under the age of ten years, namely of nine years of age. The second was an indecent assault on the same boy, constituted by pushing back the boy’s foreskin. The third was constituted by an act of indecency, namely exposing his penis to the same boy.
On 25 May 2005 the complainant went with his mother to premises in a Newcastle suburb to watch a game of football on television. The premises comprised a common room where everybody gathered and where the television set was. A door led off that room into the men’s toilets, where there was a change room, a shower and lockers. A further door led through to a urinal. The complainant left the company of his mother and went through and used the urinal. While he was in there he spoke to a man he had encountered earlier in the evening and they talked about having a game of pool. As the complainant made to leave the urinal the appellant, who was not the man the complainant had just spoken to, whispered to him, telling him to go with him because he wanted to tell him a secret. He had spoken to the complainant earlier in the evening. He told the complainant that there was another way to play pool, took him by the arm and led him into a cubicle. The man spoke…

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 Jeffrey Wayne DAVIE v R

Details

AGLC: Jeffrey Wayne Davie v The Queen [2008] NSWCCA 2
Case: [2008] NSWCCA 2
Decision Date: 29 January 2008

CaseChat Overview and Summary

Jeffrey Wayne Davie appealed against his conviction for various sexual offences, including indecent assault and unlawful sexual intercourse. The appeal was heard by the High Court of Australia, which considered whether the trial judge had erred by allowing evidence of a complaint made by another complainant, and whether the jury's verdict was a miscarriage of justice due to the absence of DNA evidence. The central legal issues were whether the trial judge had discretion to exclude evidence of other acts and whether the jury's verdict was safe and satisfactory.

The Court found that the trial judge had correctly exercised their discretion in admitting evidence of a complaint by another complainant. This evidence was relevant to the character of the accused and the circumstances of the alleged offences. The Court held that such evidence could be admissible where it assists in understanding the context of the charges. Regarding the sufficiency of the evidence, the Court found that the jury's verdict was safe and satisfactory. The jury had been properly directed on the law, and the evidence, including the testimony of the complainants, was sufficient to support the guilty verdicts. The absence of DNA evidence did not undermine the reliability of the jury's decision, as the totality of the evidence led to a conviction that was beyond reasonable doubt.

The Court dismissed the appeal and affirmed Davie's convictions. The jury's verdicts were upheld, and the trial judge's handling of the evidence was found to be within the bounds of acceptable judicial discretion. The appeal was thus unsuccessful, and Davie's convictions were confirmed.

Orders