R v Dann

Case [2000] NSWCCA 185 19 May 2000

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CITATION: R v Dann [2000] NSWCCA 185

FILE NUMBER(S): CCA 60286/99

HEARING DATE(S): 15 May 2000

JUDGMENT DATE:
19 May 2000

PARTIES :

Regina v Nicholas Trevor Dann

JUDGMENT OF: Spigelman CJ at 1; Heydon JA at 2; James J at 46

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/71/0100

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : Crown - L.M.B. Lamprati
Appellant - P.R. Boulten

SOLICITORS: Crown - S.E. O'Connor
Appellant - T.A. Murphy

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995
Criminal Procedure Act 1986

CASES CITED:
R v AH 42 NSWLR 702
R v Beserick (1993) 30 NSWLR 510
Pfennig v R (1995) 182 CLR 461

DECISION: Appeal allowed; convictions quashed; new trial ordered

IN THE COURT OF
CRIMINAL APPEAL

60286/99

SPIGELMAN CJ
HEYDON JA
JAMES J

Friday, 19 May 2000

REGINA v Nicholas Trevor DANN

JUDGMENT

1    SPIGELMAN CJ: I agree with Heydon JA.
2    HEYDON JA

Background
This is an appeal by Nicholas Trevor Dann against his conviction on 5 May 1999 on two counts of homosexual intercourse with his seven year old stepson, contrary to s 78H of the Crimes Act 1900. The trial, before Freeman DCJ and a jury at Albury, took two days. The two incidents, one involving the stepson fellating the accused and the other involving the accused having anal intercourse with the stepson, took place on a single occasion while the stepson was having a bath and the accused a shower. The events took place in the family home at Albury occupied by the accused, his wife, their four children and the stepson. The specific date of the events was not clear: they were alleged to have taken place between 1 January 1997 and 31 March 1997.

3    At the time of the trial the stepson was nine.
4    The accused was not charged in relation to three other incidents occurring later in 1997 after the family moved to Queensland, but the stepson gave evidence about them, over objection. One involved the stepson fellating the accused in the toilet of the family home, one was an incident in a moving car in which the stepson sat on the accused’s penis, and another in a car at a dump involving the accused having anal intercourse and touching the stepson’s penis.
5    There were three grounds of appeal, supported by the spirited submissions of Mr P Boulten (who did not appear at the trial).

The first ground of appeal: Dr Packer’s evidence should have been rejected under the Evidence Act 1995, s 137

6    Dr Packer was community pediatrician for the Australian Capital Territory. She worked in the Child at Risk assessment unit, Canberra Hospital. She examined the stepson on 27 November 1997. At the start of the trial, after the jury was empanelled but before counsel opened, the Crown Prosecutor summarised the evidence he intended to call thus:

“Dr Packer upon examining the child found evidence of dilatation of the anus which could be consistent with either…

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 R v Dann

Details

AGLC: R v Dann [2000] NSWCCA 185
Case: [2000] NSWCCA 185
Decision Date: 19 May 2000

CaseChat Overview and Summary

In the case of R v Dann, the Court of Criminal Appeal considered an appeal by Nicholas Trevor Dann against his conviction on two counts of homosexual intercourse with his seven-year-old stepson. The appeal hinged on three grounds, the first being the admissibility of evidence from a doctor who found anal dilation in the stepson, which could be consistent with either constipation or sexual abuse. The second ground focused on the admissibility of evidence of further alleged sexual abuse incidents that occurred after the charged incidents. The third ground concerned the trial judge's directions to the jury about the reliability of the stepson's evidence.

The Court found that the doctor's evidence should not have been admitted as its probative value was minimal, and its admission risked unfair prejudice to the accused. Regarding the evidence of the subsequent incidents, the Court held that this evidence should have been excluded as its probative value was outweighed by the risk of unfair prejudice to the accused. Lastly, the Court determined that the trial judge's directions to the jury about the reliability of the stepson's evidence were adequate, and no further direction was required.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the convictions, and ordered a new trial.

Orders