O'Hearn (formerly DAO (No 4)) v The Queen

[2021] NSWCCA 103

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

MRW v R [2011] NSWCCA 260

R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417

R v Davidson (No1) [2019] NSWSC 980

R v Heuston [2003] NSWCCA 172; 140 A Crim R 422

Category:

Principal judgment

Parties:

David Anthony O'Hearn (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Dalton SC, M Curry (Applicant)
H Roberts (Respondent)

Solicitors:
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

1. HOEBEN CJ at CL: I agree with the orders proposed by Hidden AJ for the reasons provided by his Honour.

2. N ADAMS J: I agree with the orders proposed by Hidden AJ for the reasons provided by his Honour.

3. 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.

4. 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 argument was the case relating to MB.

5. As will be seen, the sole ground of the application is founded upon what is said to be fresh evidence arising from the trial of another Catholic priest, Vincent Ryan, which took place in 2019. Allowing for that later development, the application is still out of time for the reasons set out in an affidavit of the applicant’s solicitor. However, appropriately, the Crown prosecutor in this Court accepted that the question of leave to extend time should turn on the merit of the application.

The evidence

6. Given the limited issue raised by this application, the relevant evidence at the trial can be summarised briefly. At the retrial the evidence of both complainants was presented by playing the recording of their evidence at the original trial.

7. SM was born in 1973 and lived in Muswelbrook. In 1987, when he was 13 years old, the applicant was appointed assistant parish priest there. At that time SM was attending the local Catholic high school and was an altar boy at the church.

8. The applicant conducted a youth group, of which SM was a member. One of the activities of the group was wrestling. SM was having a difficult time at home and at school, and the applicant invited him to come to the presbytery “to have a chat”. It was there that the sexual abuse is alleged to have taken place. The details of the allegations need not be set out. It is sufficient to say that on three occasions at the presbytery, the applicant is alleged to have had sexual contact with the boy while in the course of wrestling with him.

9. MB was born in 1980. The offences relating to him were alleged to have been committed between 1990 and 1991. In 1990, the applicant was appointed assistant priest at Cessnock, where Vincent Ryan was the Parish priest. Here also, the applicant was running the church’s youth group. MB also was displaying behavioural difficulties at home, and the applicant was giving him personal attention beyond involvement in that group.

10. With the permission of MB’s parents, the applicant began to attend the Police Citizens Youth Club, where they played squash. Once or twice a week, the applicant would pick him up from his home and drive him to the squash courts. After a period of time the applicant would take him to a park called Kitchener Park, instead of the squash courts. There the applicant talked to MB about his behaviour.

11. It is at Kitchener Park that the sexual abuse is alleged to have begun. Here also, there is no need to recite the detail of that abuse. It is sufficient to convey that it gave rise to a number of counts of indecent assault or sexual intercourse without consent comprising indecent touching and fellatio. The offences were said to have occurred at Kitchener Park or the presbytery.

12. The applicant gave evidence denying all the offences. As to SM, he said that he had never invited him to the presbytery unless it was as one of the youth group at some activity. As to MB, he denied ever having taken him to Kitchener Park or to the presbytery. Indeed, he denied ever having been to Kitchener Park during that period.

13. MB’s evidence was that the applicant would pick him up in a white car, which he thought was either a Holden or a Toyota Camry. At the relevant time Vincent Ryan drove a white Holden Commodore. The applicant gave evidence that at that time he was driving a red Camry, which he had bought in 1989 until shortly before he left the Cessnock parish in May 1991. He then purchased a White Camry. Evidence was called in the defence case supporting his assertion of his ownership and use of the red car and Vincent Ryan’s use of a white sedan.

14. MB made no complaint about this abuse until 2008, when he was in his later 20’s. He was an altar boy at Cessnock at the relevant time, and his evidence was that altar boys were the responsibility of Vincent Ryan. He gave a description of the applicant which was inconsistent with other evidence in the Crown case. The evidence conveyed that it was more consistent with the appearance of Vincent Ryan. It was put to MB in cross-examination that he may have mistaken Vincent Ryan for the applicant as his abuser. This he firmly denied.

15. Vincent Ryan was called in the Crown case. He had been convicted of numerous charges of sexual abuse of boys over a period of many years. He had pleaded guilty to these charges and had served lengthy terms of imprisonment. He gave evidence that in the mid-1990s he had confessed to police the whole of his offending and identified all of the victims, including 18 boys who were not then known to police. This amounted to some 27 boys in all.

16. His evidence was that he was certain that MB was not one of those boys. He said that he had no recollection of MB, he did not know MB’s family and had never been to their home, that he never played squash and had never been to the Cessnock PCYC.

17. At the time Vincent Ryan gave evidence, he had been charged with further offences of sexual abuse of boys involving two additional complainants. He denied these allegations and was awaiting trial in respect of them. The charges in relation to one of those complainants alleged sexual interference at Cessnock between 1987 and 1991, when he was an altar boy at the same church. The sexual conduct alleged in relation to that complainant was similar to that alleged by MB in the present case. It was put to Mr Ryan in cross-examination that he had been charged with further offences of a sexual nature against boys while he was a priest, although the nature and circumstances of the conduct alleged was not put. He agreed that he had been charged with such offences but said that he denied them “absolutely”.

The application

18. The present application, focussing on the convictions relating to MB, is brought on the following ground:

The absence of fresh evidence in the trial has led to a miscarriage of justice.

19. The trial of Vincent Ryan for the charges in relation to the two additional complainants to which I have referred took place before Yehia SC DCJ, sitting without a jury, in early 2019. There were five counts: four relating to the complainant at Cessnock, and one relating to the other complainant (at an earlier time in a different location). Her Honour found him guilty of all counts but the fifth (which related to the Cessnock complainant). It is those convictions which constitute the fresh evidence relied upon here.

20. In this Court the applicant was represented by Mr Dalton SC with Ms Curry (neither of whom had appeared at the trial). In written submissions they characterised as fresh evidence “Mr Ryan’s subsequent convictions after trial for offences he never admitted, committed against two additional victims that he never disclosed”. This was argued to be “very important as to the jury’s proper consideration of the defence case at trial, in particular whether the Crown had excluded the reasonable hypothesis that Father Ryan had committed the offences against MB”.

21. The fresh evidence was also argued to be “directly relevant to the jury’s proper consideration of the credibility and reliability of Mr Ryan’s evidence”, tending to prove that he “was either deliberately lying in his evidence or he was mistaken in his otherwise compelling evidence that he recalled each and every one of his victims”. Although the submissions refer to the convictions as the fresh evidence, it is implicit in them that what is relied upon is not simply the bare fact of the convictions but, particularly as far as the Cessnock complainant is concerned, the details of the offences which were found to have been proved.

22. Reliance was placed on the decision of this Court in R v Heuston [2003] NSWCCA 172; 140 A Crim R 422. That was a reference to the Court following a review under s 474D of the Crimes Act 1900 (NSW), in which the Court allowed fresh evidence, being evidence given at the Police Royal Commission of a pattern of corrupt conduct on the part of police officers involved in the investigation of the offence alleged against the appellant. This evidence would have enabled a strong attack upon the credibility of those officers, and the Court allowed the appeal and directed a new trial.

23. The familiar principles governing this Court’s reception of fresh evidence were summarised comprehensively by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63] (427-8). More recently, they were expressed succinctly by Bathurst CJ (with whom James and Johnson JJ agreed) in MRW v R [2011] NSWCCA 260 at [46], as follows:

“In circumstances where what is sought is that the conviction be quashed and a new trial ordered, there are three questions that need to be considered. First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial:…; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant….”

24. The effect of the written submissions is that those criteria are clearly met by the fresh evidence relied upon in the present case. It was further submitted (and the Crown prosecutor did not dispute) that if the convictions relating to MB were set aside, so also would be those relating to SM because at the trial MB’s allegations were admitted as tendency evidence in the Crown case in relation to SM.

25. In response to this, the Crown prosecutor relied upon s 91 of the Evidence Act 1995 (NSW), which provides:

Exclusion of evidence of judgments and convictions

(1)  Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2)  Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

26. In written submissions the Crown prosecutor noted that this section reflects the common law position established in Hollington v Hewthorn & Co Ltd [1943] KB 587, in which it was held that evidence of a magistrate’s conviction of a driver of careless driving was inadmissible in a subsequent action for damages for negligence.

27. By way of example of the application of s 91, the Crown prosecutor cited the decision of Davies J in R v Davidson (No 1) [2019] NSWSC 980, where the Crown had sought to lead evidence of the accused’s tendency to inflict violence in a particular manner through the tender of agreed facts in a previous prosecution in the District Court and the reasons for sentence of the judge in that matter. Davies J held, at [38], that that evidence was precluded by s 91.

28. In Attorney General of New South Wales v Martin [2015] NSWSC 1372, Simpson J (as she then was) had occasion to consider s 91 in the context of the tender of certain decisions and judgments in proceedings under the Vexatious Proceedings Act 2008 (NSW). Her Honour explained the approach to such an issue at [13] in this way:

“Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things - (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments - that is, what facts she seeks to prove by their use.”

29. Applying that analysis to the present case, the Crown prosecutor argued that the facts in issue at Judge Yehia’s trial were whether Vincent Ryan had sexually abused the two additional complainants, and her Honour found that he had. As the Crown prosecutor put it, the inference from the convictions was that her Honour had “rejected Ryan’s evidence and found that the offences had occurred as alleged by the complainants”. (The fact that he was acquitted of one count in respect of the Cessnock complainant is immaterial for present purposes.)

30. The Crown prosecutor noted the reliance placed on the convictions to prove that Mr Ryan was either deliberately lying or was mistaken in his evidence that he recalled each and every one of his victims, thereby relying upon Judge Yehia’s findings “as to Ryan’s credibility and reliability to prove that he is a witness lacking in credibility in the applicant’s trial, via a finding that he committed offences against two complainants unrelated to the applicant’s trial proceedings”. This, she argued, was precluded by s 91.

31. As to Heuston, the Crown prosecutor pointed out that it was the evidence given at the Police Royal Commission, not the findings of the Commission about it, which was received as fresh evidence: see the leading judgment of Hodgson JA at [28]-[35].

32. In written submissions in reply by counsel for the applicant, developed orally by Mr Dalton, this issue was sought to be addressed by a somewhat different approach. It was said that reliance was not being placed upon Judge Yehia’s reasons, or her findings as to Mr Ryan’s credibility and reliability, to prove that he was a witness lacking in credibility in the applicant’s trial. It was simply the fact of Mr Ryan’s convictions by Judge Yehia which was relied upon. Noting that at the applicant’s trial Mr Ryan had denied committing the offences relating to the additional complainants, it was submitted that the convictions would be admissible pursuant to s 106 of the Evidence Act.

33. That section, of course, is in Division 1 of Part 3.7, dealing with the credibility rule. Relevantly for present purposes, s 106 provides:

106 Exception: rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if-

(a) in cross-examination of the witness-

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness-

…

(b) has been convicted of an offence, including an offence against the law of a foreign country, or

…

34. It was submitted that at a retrial the convictions would be relevant to Mr Ryan’s credibility and would be admissible, without the leave of the Court, by virtue of s 106(2)(b). Accordingly, they would be “relevant for another purpose” within the meaning of s 91(2). However, although they logically conveyed the findings of fact adverse to the applicant’s credibility upon which they were based, they could not conformably with the subsection be used to establish those facts.

35. Reference was made to the consideration of s 91(2) in Ainsworth v Burden [2005] NSWCA 174. Put shortly, these were defamation proceedings based upon allegations made by the defendant (respondent) imputing that the plaintiff (appellant) was not a fit and proper person to hold a gaming licence (or to be associated with the holder of such a licence). The appeal related to the trial judge’s rejection of the plaintiff’s tender of some judgments of the Licensing Court accepting that he was a fit and proper person. The plaintiff’s case was that they demonstrated malice on the part of the defendant by his persistence in asserting the truth of his allegations in the face of the findings to the contrary by the Licensing Court.

36. The trial judge had rejected the evidence on a basis which is of no present relevance, and the Court of Appeal held that he was in error in doing so. However, at [108]-[109] Hunt AJA (with whom Handley and McColl JJA agreed) considered the application to the evidence of s 91. After noting at [108] that the trial judge had acknowledged that s 91(2) would have permitted their admission where they were not tendered to prove the facts found in the judgments, his Honour continued at [109]:

“It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose - as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false - they may not then be used to prove the existence of those facts….”

37. It was submitted that at any notional retrial of the applicant, Mr Ryan’s credibility could be tested by cross-examination “on the basis of all the evidence led in his 2019 trial from complainants and other witnesses….” It was acknowledged that “any such decisions in this regard would be a matter for the trial judge should this Court order a retrial”.

38. Fleshing this out in oral evidence, Mr Dalton said that at a retrial not only would Mr Ryan’s convictions be admissible under s 106, but he could also be cross-examined about the details of those offences. If he maintained his denial of them, the two additional complainants could be called to give that evidence. In that event, he acknowledged, it would be a matter for the jury to assess their evidence but, because of s 91(2), the jury would have to be directed to disregard the convictions in that assessment. This process would effectively involve a trial within a trial, and that direction might not be an easy one for the jury to grasp.

37. Mr Dalton accepted that, while the convictions amount to fresh evidence, the evidence at Mr Ryan’s trial upon which they were based is not. It was presumably available at the time of the applicant’s trial (although Mr Dalton questioned whether the trial judge would have allowed the complainants to give evidence when Mr Ryan’s trial was still pending).

38. As the Crown prosecutor pointed out, at a notional retrial Mr Ryan’s convictions would not be admissible under s 106 simply because he had denied the offences when giving evidence in the trial presently under consideration. Section 106 is directed to the denial of convictions, not the conduct upon which they were based. However, at any retrial they could be put to him in cross-examination and, in the unlikely event that he denied them, they could be proved. One way or the other the convictions could be in evidence.

39. The question, however, is the purpose for which they would be in evidence. No doubt, while acknowledging the fact of the convictions, Mr Ryan would continue to protest his innocence of the offences. Nevertheless, it is only the fact of the convictions which would be admissible and their significance would be limited to his credibility generally. At the applicant’s trial the jury were made aware that Mr Ryan had been convicted of numerous offences of sexual abuse involving 27 boys. It is difficult to see that evidence of his convictions for sexual abuse of two more boys would have had any significant impact upon the jury’s assessment of his credibility. It cannot be said that without that additional evidence there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant.

40. The fundamental question is whether the absence of the fresh evidence at the applicant’s trial has led to a miscarriage of justice. The fresh evidence is Mr Ryan’s 2019 convictions. There could be such a miscarriage only if those convictions would have been available in the applicant’s trial as evidence that Mr Ryan had indeed committed those additional offences. By virtue of s 91 they are not available for that purpose.

41. Accordingly, I have concluded that the present application has insufficient merit to warrant the grant of leave to appeal. I would grant the application for extension of time but would refuse leave to appeal.

**********

Amendments

03 June 2021 - Title amended 3 June 2021 to update judgment number to (No 4). DAO v R (No 3) was handed down and published in 2016 as [2016] NSWCCA 282.

03 June 2021 - Anonymisation of applicant's name lifted at request of parties; case name and parties amended to reflect change.

Decision last updated: 03 June 2021