Citation: REGINA v Daniel Thomas DAVIS [2004] NSWCCA 298
Court: New South Wales Court of Criminal Appeal
Date: 3 September 2004
Judge(s): Wood CJ at CL, Hulme J, Bell J
Background
The appellant was convicted in the District Court at Wollongong on two counts of sexual intercourse without consent, both anal and vaginal, alleged to have occurred on the evening of 30 January 2002. The complainant was sixteen years old at the time. The events took place after a gathering at a private residence where both parties had consumed significant quantities of alcohol.
The Crown case was that the appellant followed the complainant as she walked home, directed her into a paddock, and sexually assaulted her despite her repeated verbal refusals. The complainant was examined at Wollongong Hospital that evening, where injuries and DNA evidence consistent with the appellant's profile were found.
At trial, the appellant admitted to having sexual intercourse with the complainant but maintained it was consensual. He also conceded that he had lied to police during his initial interview by denying any intercourse occurred, explaining that he feared his pregnant girlfriend would leave him. The jury convicted him on both counts, and he was sentenced to five years' imprisonment with a three-year non-parole period.
Legal Issues
- Whether the trial miscarried because the examining doctor was permitted to give opinion evidence that it was "highly probable" that both anal and vaginal sexual assault had occurred
- Whether the trial judge erred by giving, without prior consultation with counsel, a direction to the jury on the use of the appellant's admitted lies to police (commonly called an Edwards direction)
Decision
Ground 1: Dr Ellacott's expert opinion evidence
The Court considered whether Dr Ellacott, a medical practitioner with five years' experience examining sexual assault complainants, was qualified to express the opinion that sexual assault was "highly probable." The Court, applying Papakosmas v R, confirmed that such evidence from a suitably experienced doctor is admissible under the Evidence Act 1995 where it is based on physical findings and a clinical history. The Court was satisfied that Dr Ellacott's qualifications and experience provided a sufficient foundation for her opinion evidence, and that the evidence did not impermissibly invade the province of the jury.
The Court also noted that the physical findings, including injuries to the complainant's buttocks that the doctor considered inconsistent with her having worn jeans, supported the basis for the opinion. Ground 1 was rejected.
Ground 2: The Edwards lies direction
The appellant argued that the trial judge erred by giving a direction about the use of the appellant's lies without first consulting with defence counsel. The Court acknowledged that it would have been preferable for the judge to raise the question of any such direction with counsel before the summing-up began, consistent with the approach in R v Ray.
However, the Court found that the risk of the jury improperly reasoning from the appellant's admitted lies directly to guilt was obvious and real. The direction the judge gave was described as extensive and emphatic. Significantly, defence counsel had not sought to withdraw or redirect the jury following the direction. The Court refused leave under rule 4 of the Criminal Appeal Rules to rely on this ground, and the appeal was dismissed.
Orders Made
- Appeal dismissed
Key Takeaways
- A medical practitioner with appropriate experience in examining sexual assault complainants may give opinion evidence about the likelihood that a sexual assault occurred, provided the opinion is grounded in physical findings and clinical history, and does not simply assert the complainant's account is truthful.
- Under the Edwards direction principle, where a defendant's admitted lies to police relate to a material issue, there exists a real risk that a jury may reason directly from the lies to guilt without considering alternative explanations, which can warrant a specific jury direction.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that while prior consultation with counsel before giving an Edwards direction is preferable, failure to do so does not automatically constitute a miscarriage of justice, particularly where the direction was extensive and no redirection was sought.
- Refusing leave under rule 4 of the Criminal Appeal Rules requires the court to be satisfied that no substantial miscarriage of justice occurred despite any procedural shortcoming.
- No error was established in the admission of the DNA evidence or the doctor's injury findings, both of which formed part of the evidentiary foundation supporting the Crown's case at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules (NSW), rule 4
Cases:
- 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
- R v Ray [2003] NSWCCA 227