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Court of Criminal Appeal 2 September 2004

Regina v D.R.E

[2004] NSWCCA 305

Sexual offences

Citation: Regina v D.R.E [2004] NSWCCA 305
Court: New South Wales Court of Criminal Appeal
Date: 2 September 2004
Judge(s): Mason P, Sully J, Sperling J

Background

The appellant stood trial in the District Court before Garling DCJ on a five-count indictment involving alleged sexual and physical offences against a child complainant. The complainant was between six and nine years old at the times of the alleged offences, and was the stepson of the appellant. The jury convicted the appellant on all five counts, and substantial sentences of imprisonment followed.

The appellant appealed his convictions on five grounds. The Crown did not formally concede that four of the grounds were made out, but its written submissions and the approach taken by Crown counsel at the hearing were, in substance, to that effect.

  • Whether the trial miscarried by the admission of evidence of sexual activity involving an additional minor (DB)
  • Whether the trial judge's direction permitting the jury to use a finding on one count as evidence of sexual intent in relation to the remaining counts was legally sound
  • Whether the trial judge adequately directed the jury on the significance of delay in complaint
  • Whether remarks by the Crown Prosecutor regarding a witness's motive for disliking the appellant constituted a trial irregularity
  • Whether the jury's verdicts were unreasonable and unsupported by the evidence as a whole

Decision

The Court upheld grounds one through four without detailed analysis of each, given that the Crown effectively did not resist them. Sully J (with whom Mason P and Sperling J agreed) was satisfied that each of those four grounds was well made out, and that the convictions could not stand. The question of what orders to make then turned on whether ground five also succeeded.

On ground five, the Court applied the principles from the High Court's decision in M v The Queen. Under that framework, a Court of Criminal Appeal may only set aside a verdict as unreasonable where, after making full allowance for the jury's advantages in seeing and hearing witnesses, there is a significant possibility that an innocent person has been convicted.

Sully J acknowledged genuine complexity in applying the M test. The complainant's evidence contained several forensic flaws, and the unusual nature of the alleged conduct called for careful scrutiny given the complainant's young age at the relevant time. However, the complainant's evidence was corroborated to a meaningful degree by his sister, and the jury also had the benefit of observing both the complainant and the appellant give evidence.

Ultimately, the Court was not persuaded that the jury ought to have entertained a reasonable doubt. While the jury might reasonably have acquitted, that is not the applicable standard. The distinction, as emphasised by the Court, is between a jury that could have acquitted and one that ought to have acquitted. Ground five therefore failed, meaning the appropriate remedy was a new trial rather than acquittals.

Orders Made

  • Appeals against conviction upheld
  • Current convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed the test from M v The Queen: the question is not whether a jury could have acquitted, but whether it ought to have entertained a reasonable doubt given a proper application of principle to the evidence.
  • A distinction exists between verdicts a jury was entitled to reach and verdicts a jury ought necessarily to have reached differently. These are not the same inquiry, and the difference determines whether a retrial or an acquittal is the appropriate remedy.
  • Where multiple trial errors infect a conviction, the proper outcome may still be a new trial rather than an outright acquittal, provided the evidence was not so insufficient as to require a finding of not guilty.
  • Corroboration from a supporting witness can be a significant factor in an appellate court's assessment of whether a verdict is unreasonable, even where the primary complainant's evidence carries forensic weaknesses.
  • The Court observed that suppression orders covering the identities of the appellant, the complainant, and associated persons remain in force, and any use of the judgment must respect those restrictions.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- R v McKnoulty (1994) 77 A Crim R 333