R v Dann

Citation: R v Dann [2000] NSWCCA 185
Court: New South Wales 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 section 78H of the Crimes Act 1900. Both offences arose from a single occasion in early 1997 when the child and the accused were bathing in the family home.

The stepson, aged nine at the time of trial, also gave evidence of three further alleged incidents occurring in Queensland later in 1997, after the family had relocated. The appellant was not charged in relation to those Queensland incidents. Their admission at trial became central to the appeal.

The appellant challenged his convictions on three grounds: the admission of paediatric medical evidence, the admission of the Queensland uncharged conduct evidence, and the adequacy of the trial judge's directions about the reliability of the child's evidence.

Legal Issues

• Whether the paediatric evidence of anal dilation, which the doctor herself described as carrying little weight and not diagnostic of abuse, should have been excluded under section 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice.
• Whether evidence of the three uncharged Queensland incidents was admissible as "relationship evidence" providing context for the charged Albury conduct, and whether it should have been excluded under section 409B(3) of the Crimes Act 1900 or section 137 of the Evidence Act 1995.
• Whether the trial judge's directions to the jury about the potential unreliability of the child complainant's evidence were adequate under section 165 of the Evidence Act 1995.

Decision

Ground 1: Medical evidence of anal dilation

The Court found that the paediatric evidence from Dr Packer was properly admitted at the outset of the trial. At that stage, it was relevant and did not carry unfair prejudice beyond its probative value, so section 137 of the Evidence Act 1995 had no operation. Once the evidence was given, however, its probative value for the Crown fell sharply. Dr Packer acknowledged that the anal dilation was not diagnostic of abuse, that the most common cause was constipation, and that she could not say medically that there was evidence of sexual abuse. Nevertheless, the Court accepted that the trial judge's summing-up adequately addressed these limitations, and the evidence ultimately carried some mild utility for the defence. Ground 1 failed.

The Court also made an observation directed at the broader practice of calling neutral medical examination evidence. Where such evidence is known to be inconclusive, the Court noted that practitioners might consider agreeing not to call it, accompanied by a joint request for a jury direction that no adverse inference should be drawn from its absence. This was offered as a practical suggestion rather than a binding ruling.

Ground 2: Uncharged Queensland conduct

The Court allowed the appeal on this ground. Heydon JA declined to resolve the broader admissibility questions about "relationship evidence" and the interaction of section 409B(3)(b) with section 97 of the Evidence Act, choosing instead to decide the case on the narrowest available basis.

Applying the balancing tailpiece in section 409B(3), the Court found that the probative value of the Queensland evidence did not outweigh the distress, humiliation, or embarrassment the child complainant might suffer from its admission. The evidence was subsequent in time to the charged conduct, a factor that the Court noted (following R v Beserick) generally reduces the weight to be given to such material. The particulars of the first and second Queensland incidents were vague, internally inconsistent, and at times bizarre, contrasting sharply with the child's more detailed account of the Albury incidents. The Court also excluded the evidence under section 137, finding that the multiplication of loosely established discreditable instances created unfair prejudice exceeding the evidence's low probative value. The jury's difficulty in distinguishing "relationship evidence" from tendency or propensity evidence compounded the risk.

Ground 3: Jury directions on reliability of child evidence

Leave to rely on this ground was refused. Trial counsel had specifically sought a section 165 warning, engaged with the trial judge in formulating it, and made no complaint about the terms of the warning after the summing-up concluded. None of the three specific reliability factors advanced on appeal had been raised at trial, and the suggestion of improper influence by the child's mother had not been put to the relevant witnesses. The Court found that no substantial injustice arose from the directions as given, and that the failure to complain at trial was a significant indicator that the direction was adequate in context.

Orders Made

• Appeal allowed.
• Convictions quashed.
• New trial ordered.

Key Takeaways

• Under the balancing tailpiece in section 409B(3) of the Crimes Act 1900, evidence of a complainant's uncharged sexual experiences may be excluded where its probative value does not outweigh the distress, humiliation, or embarrassment its admission might cause, even when that provision is invoked by an accused rather than a complainant.
• Subsequent uncharged sexual conduct generally carries less probative weight than prior conduct as "relationship evidence." Following R v Beserick, courts are more readily justified in limiting or excluding such evidence, particularly where only a single incident is charged.
• Section 137 of the Evidence Act 1995 provides an independent basis to exclude evidence where its probative value is outweighed by unfair prejudice. Vague, inconsistent, and multiply-alleged discreditable conduct can satisfy that test even where the jury is directed to treat the evidence as context rather than tendency.
• Neutral or inconclusive medical examination evidence does not automatically breach section 137 at the point of admission. Its character may shift during the trial, and the trial judge's summing-up can remedy any residual risk of prejudice.
• An appellant who obtains the jury direction sought at trial and raises no complaint about it in the summing-up faces a high threshold in seeking leave under rule 4 of the Criminal Appeal Rules to challenge its adequacy on appeal.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated