REGINA v Daniel Thomas Davis - [2004] NSWCCA 298

CITATION: REGINA v Daniel Thomas DAVIS [2004] NSWCCA 298

HEARING DATE(S): 19/8/04

JUDGMENT DATE:
3 September 2004

JUDGMENT OF: Wood CJ at CL at 1; Hulme J at 2; Bell J at 3

DECISION: Appeal dismissed

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Dhanhoa v R [2003] HCA 40; 77 ALJR 1433
Edwards v R (1993) 178 CLR 193
Papakosmas v R (1999) 196 CLR 297
Zoneff v R [2000] HCA 28; 200 CLR 234

PARTIES :
REGINA
Daniel Thomas DAVIS (Appellant)

FILE NUMBER(S): CCA 2004/1908 (formerly 60174/04)

COUNSEL: S Corrish (Appellant)
P Power SC (Crown)

SOLICITORS: S O'Connor
S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0101

LOWER COURT
JUDICIAL OFFICER : Phelan DCJ

2004/1908 CCAP (formerly 60174/04)

WOOD CJ at CL
HULME J
BELL J
Friday 3 September, 2004

REGINA v Daniel Trevor DAVIS

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Bell J. I agree with the orders proposed, and with the reasons of her Honour.

2 HULME J: I agree with Bell J.

3 BELL J: Daniel Trevor Davis, the appellant, appeals against his conviction on two counts of having sexual intercourse with RC without the consent of RC, knowing that she was not consenting thereto. The offences are each alleged to have occurred on the evening of 30 January 2002.

4 The appellant was tried before his Honour Judge Phelan (the Judge) and a jury in the District Court at Wollongong. The trial commenced on 17 February 2003. On 20 February 2003 the jury returned verdicts of guilty on each count.

5 The appellant was sentenced to a term of five years’ imprisonment, commencing on 20 February 2003. A non-parole period of three years was specified.

The C

own case

6 The complainant, RC, was aged sixteen years at the date of these events. On 30 January 2002, she and her boyfriend together with a number of others, including the appellant, were at her sister MK’s house. They were all drinking alcohol. By the early evening both the appellant and RC were significantly affected by alcohol.

7 RC was wearing jeans and a red singlet top.

8 By sunset RC was feeling very drunk and unwell. She went to the bathroom and vomited. On her return she saw that most of the guests, including her boyfriend, had left. Only MK and MK’s children remained.

9 RC went outside to confront a young woman named Lisa who had been at the premises earlier and with whom she had an ongoing dispute. The two engaged in a physical fight in the street. They traded punches and RC sustained a black eye. She ended up pinning Lisa to the ground by kneeling over her. She acknowledged in evidence that she may have grazed her knees in the course of this confrontation.

10 After the fight RC returned to the living room. MK and the children were in another room. After a little time…

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 REGINA v Daniel Thomas Davis

Details

AGLC: REGINA v Daniel Thomas Davis [2004] NSWCCA 298
Case: [2004] NSWCCA 298
Decision Date: 3 September 2004

CaseChat Overview and Summary

In Regina v Daniel Thomas Davis, the appellant, Daniel Thomas Davis, appealed against his conviction on two counts of having sexual intercourse with RC without her consent. The trial, held in the District Court at Wollongong, resulted in a guilty verdict on both counts. Davis was sentenced to five years' imprisonment, with a non-parole period of three years. The appeal was heard and dismissed by the NSW Court of Criminal Appeal on 3 September 2004.

The primary legal issue was whether the trial miscarried due to the admission of certain evidence and whether the trial judge erred in his directions to the jury regarding the appellant's lies told during the police interview. The first ground of appeal concerned the admissibility of Dr Ellacott's opinion that it was highly probable that sexual assault had occurred. Davis argued that this opinion was inadmissible and prejudicial, potentially causing a miscarriage of justice. The court found that while the opinion was indeed inadmissible, the prejudicial effect was neutralised by other evidence presented, and therefore, the trial did not miscarry.

The second ground of appeal related to the trial judge's direction to the jury on the issue of the appellant's lies during the police interview. Davis argued that the judge should not have given an Edwards direction because the Crown had not relied on the lies as evidence of his consciousness of guilt. The court held that it was open to the judge to give such a direction to prevent the jury from potentially misunderstanding the significance of the lies, even though the Crown had not explicitly argued this point. The judge's direction was extensive and emphatic, and no application was made to withdraw or redirect it.

Ultimately, the NSW Court of Criminal Appeal dismissed the appeal, upholding Davis's conviction and sentence.

Orders