R v Denton - [2019] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Denton [2019] NSWCCA 81
Hearing dates: 8 April 2019
Date of orders: 08 April 2019
Decision date: 16 April 2019
Before: Hoeben CJ at CL at [1];
R A Hulme J at [9];
Hamill J at [10]
Decision:
Prosecution appeal under s 5F(3A) dismissed.

Catchwords: CRIMINAL LAW – evidence – interlocutory appeal against ruling on evidence – sexual assault – pictures of penis – where complainant draws picture of respondent’s penis – frenulum – “abnormal skin flap” – where trial Judge excludes police photographs of penis – whether admissible – expert evidence – where no evidence that frenulum abnormal – relevance – probative value – unfair prejudice – trial Judge correct
Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2) and 66C(3)
Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), ss 55, 56 and 137
Cases Cited: Korgbara v The Queen [2007] NSWCCA 84; (2007) 170 A Crim R 568
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Category: Principal judgment
Parties: Regina
Thomas Denton
Representation:
Counsel:
H Roberts; M Kumar (Regina)
G Gillett (Denton)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Macedone Legal (Denton)

File Number(s): 2017/00069651
Publication restriction: No publication until the conclusion of the trial.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

4 April 2019

Before:

Sweeney DCJ

File Number(s):

2017/00069651

Judgment

HOEBEN CJ AT CL: On 8 April 2019 the Court made an order dismissing a prosecution appeal against a ruling on evidence made by Sweeney DCJ in trial proceedings in relation to the above matter. The following briefly sets out my reasons for joining in that order.
Before setting out those reasons, I fully accept as accurate the review of the facts by Hamill J in his judgment.
I agree with Hamill J that if the forensic photographs were relevant, their probative value was so low that their tender should have been rejected because of the danger of unfair prejudice to the respondent (s 137 of the Evidence Act 1995 (NSW)).
Unfortunately, where I differ from Hamill J is on the question of the relevance of the forensic photographs.
As Hamill J has set out, the basis upon which the prosecution sought to tender the photographs was to invite the jury to make their own comparison between them and the diagrams made by the complainant. The jury was to do this unguided by any expert opinion as to whether there was anything unusual, abnormal or distinctive about the respondent’s penis.
On that state of the evidence, a finding by the jury to the effect that there was some similarity between the diagrams drawn by the complainant and the photographs proved nothing. Most particularly, the photographs did not advance the prosecution’s fundamental proposition that such a similarity supported the complainant’s testimony that the respondent had exposed his penis to her prior to the offending with which he had…

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 Denton

Details

AGLC: R v Denton [2019] NSWCCA 81
Case: [2019] NSWCCA 81
Decision Date: 16 April 2019

CaseChat Overview and Summary

The case of R v Denton involves an appeal against the decision of a trial Judge to exclude certain photographic evidence in a criminal trial for sexual assault. The respondent was accused of committing an indecent act by exposing his penis to the complainant, a young girl. The complainant testified that she had drawn a picture of the respondent’s penis and described it as having a “frenulum” or “abnormal skin flap.” The trial Judge ruled that police photographs of the respondent’s penis, which were offered as evidence, were inadmissible. The respondent sought an interlocutory appeal against this ruling, arguing that the photographs were relevant and probative of the case, and that their exclusion was unfair.

The legal issues before the court were whether the photographs were admissible as evidence and, if so, whether their exclusion was unfair to the respondent. The court considered the relevance and probative value of the photographs, and whether their admission would result in unfair prejudice to the respondent. The court also considered the expert evidence provided regarding the anatomical features of the penis, including the frenulum. The court concluded that the trial Judge was correct in excluding the photographs, as there was no evidence that the respondent’s frenulum was abnormal, and the probative value of the photographs was outweighed by the potential for unfair prejudice.

The court held that the trial Judge had properly exercised their discretion in excluding the photographs. The court noted that the probative value of the photographs was limited, as there was no evidence that the respondent’s frenulum was abnormal. The court also found that the potential for unfair prejudice to the respondent was significant, as the photographs could have been seen as an invasion of the respondent’s privacy and dignity. The court held that the trial Judge had correctly balanced the probative value of the photographs against the potential for unfair prejudice, and had made a reasonable decision in excluding the photographs from evidence. The appeal was dismissed.

Orders