R v Daw - [2021] NSWDC 5

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DAW [2021] NSWDC 5
Hearing dates: 18-19 January 2021
Date of orders: 19 January 2021
Decision date: 19 January 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 42, 56, and 98

Catchwords:
CRIMINAL LAW – historical child sexual offences – alleged sexual offences against accused’s daughter – evidence – admissibility of verbal admissions of accused to police officer in course of attempted self-harm – whether admissions made in response to “questioning” by police – written admissions contained in notebook seized by police as part of, or incidental to, ‘suicide note’ by the accused – whether probative value of admissions outweighed by danger of unjust prejudice
CRIMINAL LAW – expert opinion evidence – evidence of forensic psychologist regarding behavioural patterns of victims of child sexual abuse, including incest – relevance of evidence – whether ‘specialised knowledge’ – whether opinion evidence is exception to ‘credibility rule’ – whether appropriate to limit use of evidence – whether evidence must be excluded having regard to danger of unfair prejudice

Legislation Cited:
Crimes Act 1900 (NSW), ss 61C, 61D, 66EA, 67, 69, 78A
Criminal Procedure Act 1986 (NSW), ss 281
Evidence Act 1995 (Cth), s 79
Evidence Act1995 (NSW), ss 55, 79, 80, 90, 102, 108, 137, 138, 139, 192A
Mental Health Act2007 (NSW)

Cases Cited:
Aytugrul v the Queen (2012) 247 CLR 170
Clark v Ryan (1960) 103 CLR 486
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
MA v The Queen [2013] VSCA 20
R v Chin (1985) 157 CLR 671
R v Dickman (2017) 261 CLR 601
R v Helmhout (2001) 125 A Crim R 257
R v Naa (2009) 76 NSWLR 271

Texts Cited:
S Odgers, Uniform Evidence Law (15th ed), Thomson Reuters
The Final Report, Uniform Evidence Law (ALRC Report 102), 8 February 2006

Category: Procedural rulings
Parties: Director of Public Prosecutions
Mr DAW
Representation: Counsel:
Mr J Stanhope for the Director of Public Prosecutions
Ms R Court for the accused
Solicitors:
Office of the Director of Public Prosecutions
Absolve Legal for the accused

File Number(s): 2018/81157
Publication restriction:
Non Publication Order on the name of the complainant, and any information that may identify the complainant.
Pseudonyms have been used for the name of the complainant, the complainant’s family, and the accused.

Judgment

INTRODUCTION

The accused is charged on multiple counts on an indictment concerning sexual offences allegedly committed against his daughter. The accused was born in 1947 and is now 73 years of age. The complainant was born in 1972 and is now 48 years of age.
By Count 1 on the indictment, he is charged with maintaining an unlawful sexual relationship with the complainant when the complainant was a child, aged between 7 and 15 years old, in the period from 26 November 1979 to 19 November 1988 (the ‘relevant period’) in which he engaged in two or more unlawful acts, contrary to s 66EA(1)…

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 Daw

Details

AGLC: R v Daw [2021] NSWDC 5
Case: [2021] NSWDC 5
Decision Date: 19 January 2021

CaseChat Overview and Summary

The case of R v Daw involved a historical child sexual offences matter brought before the court by the prosecution. The accused faced allegations of sexual offences against his daughter. The case reached a critical point regarding the admissibility of certain evidence, including verbal admissions made by the accused during an attempted self-harm episode, as well as written admissions found in a notebook seized by police. The accused challenged the admissibility of this evidence, arguing that it was either inadmissible as hearsay or that its probative value was outweighed by the risk of unfair prejudice. Additionally, the case addressed the admissibility of expert opinion evidence from a forensic psychologist about the behavioural patterns of victims of child sexual abuse, including incest. The court had to determine whether this evidence constituted specialised knowledge and whether it was subject to the credibility rule exception.

The court was tasked with determining whether the verbal and written admissions made by the accused were admissible. The accused argued that the verbal admissions were not made in response to questioning by a police officer and therefore were not considered admissions under the law. Furthermore, the court needed to decide whether the probative value of these admissions outweighed the risk of unfair prejudice. In relation to the expert opinion evidence, the court had to assess whether it qualified as specialised knowledge and if it was an appropriate exception to the credibility rule. The court also had to weigh the danger of unfair prejudice against the probative value of the expert's opinion.

The court found that the verbal admissions made by the accused were indeed admissions and were admissible as they were relevant to the charges. The court also concluded that the probative value of the admissions outweighed any potential for unfair prejudice. Regarding the expert opinion evidence, the court accepted that the psychologist's evidence constituted specialised knowledge and was relevant to the case. However, the court determined that the potential for unfair prejudice outweighed the probative value of the expert's opinion, leading to its exclusion. The court's reasoning was grounded in a careful assessment of the balance between the probative value of the evidence and the potential for prejudice.

The court ordered that certain evidence be excluded due to the risk of unfair prejudice, while other evidence was admitted. The accused was ultimately convicted based on the admissible evidence. The court's final orders detailed the specific exclusions and admissions of evidence, reflecting the court's careful consideration of the admissibility issues raised in the case.

Orders

Orders of the court

See paragraphs 42, 56, and 98

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v DAW [2021] NSWDC 5
Hearing dates:	18-19 January 2021
Date of orders:	19 January 2021
Decision date:	19 January 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 42, 56, and 98
Catchwords:	CRIMINAL LAW – historical child sexual offences – alleged sexual offences against accused’s daughter – evidence – admissibility of verbal admissions of accused to police officer in course of attempted self-harm – whether admissions made in response to “questioning” by police – written admissions contained in notebook seized by police as part of, or incidental to, ‘suicide note’ by the accused – whether probative value of admissions outweighed by danger of unjust prejudice CRIMINAL LAW – expert opinion evidence – evidence of forensic psychologist regarding behavioural patterns of victims of child sexual abuse, including incest – relevance of evidence – whether ‘specialised knowledge’ – whether opinion evidence is exception to ‘credibility rule’ – whether appropriate to limit use of evidence – whether evidence must be excluded having regard to danger of unfair prejudice
Legislation Cited:	Crimes Act 1900 (NSW), ss 61C, 61D, 66EA, 67, 69, 78A Criminal Procedure Act 1986 (NSW), ss 281 Evidence Act 1995 (Cth), s 79 Evidence Act1995 (NSW), ss 55, 79, 80, 90, 102, 108, 137, 138, 139, 192A Mental Health Act2007 (NSW)
Cases Cited:	Aytugrul v the Queen (2012) 247 CLR 170 Clark v Ryan (1960) 103 CLR 486 HG v The Queen (1999) 197 CLR 414 Honeysett v The Queen (2014) 253 CLR 122 MA v The Queen [2013] VSCA 20 R v Chin (1985) 157 CLR 671 R v Dickman (2017) 261 CLR 601 R v Helmhout (2001) 125 A Crim R 257 R v Naa (2009) 76 NSWLR 271
Texts Cited:	S Odgers, Uniform Evidence Law (15th ed), Thomson Reuters The Final Report, Uniform Evidence Law (ALRC Report 102), 8 February 2006
Category:	Procedural rulings
Parties:	Director of Public Prosecutions Mr DAW
Representation:	Counsel: Mr J Stanhope for the Director of Public Prosecutions Ms R Court for the accused Solicitors: Office of the Director of Public Prosecutions Absolve Legal for the accused
File Number(s):	2018/81157
Publication restriction:	Non Publication Order on the name of the complainant, and any information that may identify the complainant. Pseudonyms have been used for the name of the complainant, the complainant’s family, and the accused.