Citation: DAO v R (No 2) [2014] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 10 July 2014
Judge(s): Simpson J (with Adams J and Price J agreeing)
Background
The appellant, a former Catholic priest who had served in the Hunter Valley, was convicted after a six-week District Court trial on 21 primary counts of sexual offences against four male complainants (referred to as DP, SM, MB and JC). The offences were alleged to have occurred between 1982 and 1993, when each complainant was a child and a parishioner in parishes to which the appellant was assigned. The trial judge sentenced the appellant to an overall term of 13 years' imprisonment with a non-parole period of 8 years and 6 months.
The case had a substantial procedural history. An earlier 2010 trial involving some of the same complainants, along with others, generated interlocutory appeals to the Court of Criminal Appeal and an unsuccessful application for special leave to the High Court, all concerning whether the allegations of each complainant could be admitted as tendency evidence in relation to the allegations of the others. By the time of the 2012 trial, the counts concerning complainant DP had been added to the indictment, and the trial judge ruled that the tendency evidence regime applied equally to those counts.
After the verdict in this trial, the appellant was separately tried on counts relating to three other complainants whose cases had been severed at the earlier stage. He was acquitted of all counts in that subsequent trial.
Legal Issues
- Whether the trial judge erred in failing to order separate trials for counts relating to each of the four complainants
- Whether the trial judge erred in admitting tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW) relating to each complainant in respect of the allegations concerning the others
- Whether the verdicts concerning each complainant individually were unreasonable or not supported by the evidence
- Whether a miscarriage of justice resulted from the admission of the tendency evidence across all four complainants' allegations
- Whether fresh evidence from the subsequent trial (resulting in acquittals) should be admitted on appeal
Decision
Grounds 1 and 2: Separate trials and tendency evidence
The Court held it had no jurisdiction to entertain the ground challenging the tendency evidence rulings, because that issue had already been fully litigated and determined against the appellant in DAO v R [2011] NSWCCA 63, a decision upheld on special leave refusal by the High Court. The separate trials ground was similarly foreclosed by that earlier litigation.
Grounds 3 to 6: Unreasonable verdicts
Applying the principles in M v The Queen, MFA v The Queen, and SKA v The Queen, Simpson J assessed the evidence in respect of each complainant. The Crown case concerning MB and SM was found to be strong. By contrast, the cases concerning DP and JC were found to have serious deficiencies, and the Court concluded the jury ought to have entertained a reasonable doubt about those allegations. Verdicts of acquittal were appropriate for the counts relating to DP and JC.
Ground 2A: Miscarriage of justice from tendency evidence
Although the Crown case on the MB and SM counts was itself strong, the Court could not exclude the real possibility that the jury used the flawed DP and JC cases as additional support when evaluating the MB and SM allegations. Because of that possibility, even the MB and SM convictions could not stand. However, since the underlying evidence on those counts was capable of sustaining a conviction, the appropriate remedy was a new trial rather than acquittal.
Ground 7A: Fresh evidence
Because the fresh evidence concerned only the counts relating to DP (for which acquittals were already entered), it was unnecessary to consider that ground further.
Orders Made
- The appeal against conviction was allowed
- Convictions and sentences on counts 1, 2, 3, 5, 7, 8, 22 and 23 (relating to complainants DP and JC) were quashed, with verdicts of acquittal entered
- Convictions and sentences on counts 9 to 21 inclusive (relating to complainants SM and MB) were quashed, and new trials ordered on those counts
Key Takeaways
- Where tendency evidence from multiple complainants is admitted in a joint trial, a finding that some of those complainants' cases were insufficient to support a verdict can infect the convictions on other counts, even where the evidence on those other counts was independently strong.
- The Court of Criminal Appeal confirmed it had no jurisdiction to re-agitate a tendency evidence admissibility question that had already been fully determined in prior appellate proceedings, including a failed High Court special leave application.
- Applying the M v The Queen line of authority, the court found that juries ought to have entertained doubt about allegations that contained serious evidentiary deficiencies, warranting verdicts of acquittal on those counts rather than a retrial.
- A new trial, rather than acquittal, was the appropriate remedy where the underlying evidence on certain counts was independently capable of supporting conviction, but could not be disentangled from the contaminating effect of the flawed counts tried alongside them.
- The subsequent acquittal of the appellant on separate counts in a later trial was noted as relevant context but was addressed only to the extent that the fresh evidence from that trial had been rendered unnecessary by the acquittals already entered.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Evidence Act 1995 (NSW), ss 97, 101
Cases
- DAO v R (NSWDC, 4 November 2010, unreported)
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DAO v The Queen [2011] HCA Trans 298
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400