AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 19 May 2000

R v Dann

[2000] NSWCCA 185

Sexual offences

Citation: R v Dann [2000] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 19 May 2000
Judge(s): Spigelman CJ, Heydon JA, James J

Background

The appellant was convicted in the District Court at Albury on two counts of homosexual intercourse with his seven-year-old stepson, contrary to s 78H of the Crimes Act 1900. The alleged offences involved two incidents occurring during a single bathing occasion at the family home between January and March 1997. The jury convicted after a two-day trial before Freeman DCJ.

The appeal raised three grounds: the admission of a paediatrician's medical evidence, the admission of evidence concerning three uncharged acts alleged to have occurred after the family moved to Queensland, and the adequacy of the trial judge's warning to the jury about the reliability of child complainant evidence.

  • Whether the paediatrician's evidence about anal dilation should have been excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether evidence of three uncharged acts was properly admitted as similar fact evidence, applying the principles in Pfennig v R (1995) 182 CLR 461
  • Whether the trial judge gave an adequate warning under s 165 of the Evidence Act 1995 about the potential unreliability of the child complainant's evidence

Decision

Medical evidence (Ground 1): The Court found no error in admitting the paediatrician's evidence at the outset of the trial. At that point the evidence was relevant and the foundation for its admission appeared sound: the Crown proposed to exclude one of the two possible causes of anal dilation through the mother's evidence. However, the anticipated evidentiary foundation was never established at trial. The doctor's evidence ultimately showed no signs of irritation that would support sexual abuse as a cause, and the constipation explanation was not firmly excluded. The Court concluded that, while the admission was not itself an error, the evidence as it emerged carried minimal probative value, and the direction given by the trial judge in summing up was sufficient to address any residual risk of prejudice.

Similar fact evidence (Ground 2): This ground succeeded. The Court held that the evidence of the three uncharged Queensland incidents was admitted without satisfying the stringent test in Pfennig v R. That test requires that, when weighing the probative value of similar fact evidence against its prejudicial effect, there be no rational view of the evidence consistent with the innocence of the accused. The trial judge had not applied this test correctly, and the evidence of the uncharged acts carried substantial prejudicial effect. The Court found that the admission of this evidence constituted a significant error that warranted the convictions being quashed and a new trial ordered.

Reliability warning (Ground 3): Leave to argue this ground was required under r 4 of the Criminal Appeal Rules because the point had not been pressed at trial. The Court refused leave. Trial counsel had actively engaged with the trial judge in formulating the terms of the s 165 warning and made no complaint at the close of the summing up. The specific concerns raised on appeal, including potential influence on the child by his mother and the child's cognitive development, had not been put to the relevant witnesses at trial. The Court declined to interfere.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Pfennig v R test governs the admission of similar fact evidence in criminal trials in NSW: the evidence must be such that there is no rational view of it consistent with the accused's innocence, and the test must be applied rigorously before such evidence is received.
  • Where evidence is admitted on an anticipated foundation that is never established at trial, the question of whether exclusion or discharge is required will depend on what probative value and prejudice the evidence carried once actually given. Here, the evidence ultimately provided little assistance to either side.
  • Under s 137 of the Evidence Act 1995, the court must weigh probative value against the danger of unfair prejudice to the accused. The timing of the assessment matters: the calculation may shift significantly between the point of admission and the close of evidence.
  • A failure by trial counsel to complain about a jury direction at the close of the summing up will ordinarily weigh heavily against the grant of leave to raise the adequacy of that direction on appeal, particularly where counsel actively participated in settling its terms.
  • Appellate courts recognise that trial counsel are better placed than appellate counsel to assess whether a jury direction adequately meets the circumstances of the particular trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 78H
- Evidence Act 1995 (NSW), ss 137, 164(3), 165
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules, r 4

Cases:
- Pfennig v R (1995) 182 CLR 461
- R v AH (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 510