Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103 Hearing dates: 26 April 2021 Decision date: 21 May 2021 Before: Hoeben CJ at CL at [1]
N Adams J at [2]
Hidden AJ at [3]Decision: (1) Application for extension of time granted.
(2) Leave to appeal refused.
Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – charges of sexual abuse of children – credibility of prosecution witness who had committed offences of the same kind – claim by witness that he had revealed the whole of his offending – witness subsequently convicted of further offences of the same kind – those convictions relied upon as fresh evidence – whether those convictions could be used as evidence of the witness’s guilt of those additional offences
Legislation Cited: Crimes Act 1900 (NSW), s 474D
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Evidence Act 1995 (NSW), ss 91, 106
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Ainsworth v Burden [2005] NSWCA 174
DAO v R (No2) [2014] NSWCCA 126
Hollington v Hewthorn & Co Ltd [1943] KB 587
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Davidson (No1) [2019] NSWSC 980
Category: Principal judgment Parties: David Anthony O'Hearn (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
D Dalton SC, M Curry (Applicant)
H Roberts (Respondent)
Bannisters Lawyers (Applicant)
Director of Public Prosecutions (Respondent)
File Number(s): 2009/60628; 2012/352940 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Citation:
N/A
- Date of Decision:
- 22 August 2016
- Before:
- Cogswell SC DCJ
- File Number(s):
- 2009/60628; 2012/352940
Judgment
-
HOEBEN CJ at CL: I agree with the orders proposed by Hidden AJ for the reasons provided by his Honour.
-
N ADAMS J: I agree with the orders proposed by Hidden AJ for the reasons provided by his Honour.
-
HIDDEN AJ: The applicant, a Catholic priest, was tried over several years in respect of multiple allegations of historical child sexual abuse. One of those trials, conducted in 2012, involved a number of complainants, including two identified by the initials SM and MB. The applicant was found guilty of all the offences charged, but successfully appealed against those convictions: DAO v R (No 2) [2014] NSWCCA 126. In relation to SM and MB, the Court ordered a new trial.
-
That trial, comprising the offences alleged against SM, MB and another complainant, took place in 2016. The applicant was found guilty of the offences relating to SM and MB, but the jury was unable to agree upon verdicts in respect of the allegations of the third complainant. In these proceedings the applicant seeks leave to appeal, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), against the convictions in respect of SM and MB, but the principal focus of the…
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- Case
- [2021] NSWCCA 103
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the fresh evidence of the witness’s further convictions could be used to corroborate the witness's credibility in the appellant's case. The court needed to determine if such evidence could be admissible and, if so, how it would impact the assessment of the witness's testimony and, consequently, the appellant's conviction. This issue raised complex questions about the rules of evidence, the credibility of witnesses with a history of similar offences, and the potential for prejudicial impact on the appellant.
The Court held that the fresh evidence of the witness's further convictions was not admissible as it could unfairly prejudice the appellant. The Court reasoned that the probative value of the evidence was significantly outweighed by the danger of unfair prejudice. The fresh convictions did not relate directly to the events in question in the appellant’s trial, and the risk of the jury drawing impermissible inferences was too high. Consequently, the court denied the leave to appeal on the basis that the fresh evidence would not have altered the outcome of the trial.
No further orders were made beyond the denial of leave to appeal. The appellant's conviction remained unaffected by the decision of the High Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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