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

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…

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

Case: [2021] NSWCCA 103
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the High Court of Australia, O’Hearn, formerly DAO, was convicted of sexual abuse of children. The appellant applied for leave to appeal against the conviction, focusing on the credibility of a prosecution witness who had also committed offences of the same kind. The witness had claimed to have revealed all of his offending. However, after the appellant's trial, the witness was convicted of further offences of the same kind. These new convictions were considered as fresh evidence, raising questions about whether they could be used to substantiate the witness’s guilt of those additional offences.

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