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Court of Criminal Appeal 29 January 2008

Jeffrey Wayne DAVIE v R

[2008] NSWCCA 2

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION OBJECTIONS NOT TAKEN AT TRIAL EVIDENCE OF COMPLAINT MISCARRIAGE OF JUSTICE DNA EVIDENCE

Citation: Jeffrey Wayne Davie v R [2008] NSWCCA 2
Court: New South Wales Court of Criminal Appeal
Date: 29 January 2008
Judge(s): Grove J, Simpson J, Barr J (Barr J delivering the leading judgment)

Background

The appellant was convicted by a jury in the District Court of three offences against a nine-year-old boy: an act of fellatio, an indecent assault (pushing back the boy's foreskin), and an act of indecency (exposing himself to the boy). The offending was alleged to have occurred on 25 May 2005 at premises in a Newcastle suburb, in the men's toilets, after the appellant lured the boy away from his mother on the pretence of telling him a secret.

The prosecution case rested on several pillars. The complainant identified the appellant from a photo array. DNA analysis of the complainant's underpants matched the appellant's profile, with a frequency of fewer than one in ten billion in the general population. Evidence of the appellant's prior sexual offending against young boys was also admitted, as were three witnesses who gave evidence of the complainant's complaints made shortly after the events.

The appellant was convicted on all three counts and appealed to the Court of Criminal Appeal. All three grounds of appeal involved objections that had not been raised at trial, requiring the appellant to seek leave to argue them on appeal.

  • Whether a miscarriage of justice arose from the trial judge's directions to the jury about the use of complaint evidence
  • Whether the trial judge erred in admitting or directing the jury on DNA evidence
  • Whether the trial judge gave inadequate directions in response to a jury note asking whether a finding of guilt on one count could inform a finding of guilt on another count

Decision

The Court dismissed the appeal on all three grounds, refusing leave on each. The central obstacle for the appellant was that none of the objections had been raised at trial. The Court reaffirmed the principle from R v Abusafiah (1991) 24 NSWLR 531 that the requirement to object at trial is not a mere technicality. Its purpose is to ensure the trial judge has the opportunity to correct any error before it affects the outcome, and the Criminal Appeal Act 1912 does not exist to allow an accused to have a retrial on entirely new issues that could and should have been raised the first time.

On the complaint evidence ground, the Court found no basis for a grant of leave, particularly given the objection had not been taken and no sufficient case of miscarriage was made out. Similarly, on the DNA evidence ground, no leave was granted.

On the jury note ground, the appellant argued the trial judge should have directed the jury that it was impermissible to use a finding of guilt on one count to support a finding of guilt on another. However, before delivering the direction now challenged, the trial judge had discussed the proposed direction with counsel, and defence counsel had expressed satisfaction with it. The Court noted there were good tactical reasons why defence counsel may have chosen not to seek a stricter direction, given all three counts depended on the same complainant's evidence and no differential verdicts had been pressed. Leave was refused on this ground as well.

The Court was not satisfied on any of the three grounds that a miscarriage of justice had occurred warranting intervention.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • An accused who fails to object to a direction (or non-direction) at trial faces a significant hurdle in raising that objection for the first time on appeal, because leave is required and the Court of Criminal Appeal will scrutinise whether the error, if any, could have been cured at trial had attention been drawn to it.
  • In dismissing the appeal, the Court confirmed the long-standing principle from R v Abusafiah that the Criminal Appeal Act 1912 is not a vehicle for obtaining a new trial on issues that were available but not raised at first instance.
  • Where a jury asks whether a finding of guilt on one count can inform a finding of guilt on another, the adequacy of the trial judge's direction will be assessed in the full context of the trial, including what defence counsel accepted or did not contest.
  • Defence counsel's express satisfaction with a proposed direction at trial weighs against a later appellate complaint that the direction was inadequate.
  • No miscarriage of justice was established on the complaint evidence, DNA evidence, or jury direction grounds, and the convictions were upheld.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases
- R v Abusafiah (1991) 24 NSWLR 531
- Papakosmas v The Queen (1999) 196 CLR 297
- Domican v The Queen (1992) 173 CLR 555
- R v TJF [2001] NSWCCA 127
- R v GK (2001) 125 A Crim R 351
- R v Markulevski (2001) 52 NSWLR 82