Citation: Donohoe v R [2017] NSWCCA 174
Court: Court of Criminal Appeal, New South Wales
Date: 21 July 2017
Judges: Hoeben CJ at CL, Fullerton J, Garling J
Background
The appellant was convicted of five counts of sexual offences against two cognitively impaired complainants (referred to as Complainant A and Complainant B) following a jury trial in the District Court. The charges were brought under two provisions of the Crimes Act 1900 (NSW): section 66F(3), which targets sexual intercourse where a person takes advantage of another's cognitive impairment, and section 61J(1), which concerns aggravated sexual intercourse without consent where the aggravating circumstance is the complainant's cognitive impairment.
Three complainants were involved at trial. All were young men with intellectual disabilities living in the Taree area, each of whom had developed a friendship with the appellant, partly through the State Emergency Service. The jury acquitted the appellant of all counts relating to a third complainant (Complainant C), directed verdicts of not guilty were entered on two counts relating to Complainant B, and convictions were returned on the remaining five counts. An aggregate sentence of 5 years and 6 months with a non-parole period of 3 years was imposed.
The appellant, who represented himself on appeal, challenged his convictions on multiple grounds. He did not appeal the sentence.
Legal Issues
- Whether the evidence given by the cognitively impaired complainants was too unreliable to support the convictions
- Whether the conduct of the trial was unfair in the circumstances
- Whether tendency evidence was wrongly admitted or applied
- Whether a post-arrest statement made by the appellant to Detective Deas in the police cells constituted an "implied admission" and whether it was admissible
- Whether the guilty verdicts were inconsistent with the acquittals on the counts relating to Complainant C
Decision
Reliability of complainant evidence. The Court found no error in the trial judge's assessment of the complainants' evidence. Although all three complainants were cognitively impaired, the trial judge carefully evaluated the reliability of each complainant's account, and the Court of Criminal Appeal found that analysis to be sound. The convictions rested on evidence that the trial judge was entitled to accept.
Conduct of the trial. The Court found no basis for concluding the trial was conducted unfairly. The appellant had been represented by counsel at trial, the trial judge gave appropriate directions to the jury, and no procedural irregularity was identified that would warrant intervention.
Tendency evidence. The Court considered the admissibility and use of tendency evidence in the context of multiple complainants and found no error in the way that evidence was dealt with at trial.
Admissibility of the post-arrest statement. After his arrest, and having declined to participate in a formal electronically recorded interview, the appellant made a statement to Detective Deas in the police cells. When informed of the charges, including that the law prohibited taking advantage of intellectually impaired people to have sex with them, the appellant responded: "Well how was I supposed to know that. I didn't know there was a law against that." The trial judge admitted this as an implied admission, finding the detective's remarks were advisory in purpose rather than investigatory, and that the conversation did not constitute "official questioning" under section 281 of the Criminal Procedure Act 1986. The Court of Criminal Appeal agreed. The detective was performing the same advisory role as the custody manager in Bryant v R, the right to silence was not undermined, and there was no unfair prejudice warranting exclusion under section 90 or section 137 of the Evidence Act 1995.
Inconsistent verdicts. The Court rejected the submission that the guilty verdicts involving Complainants A and B were inconsistent with the acquittals on counts relating to Complainant C. The evidence relating to each complainant was assessed separately, and the differences in outcome reflected the distinct evidence presented on each set of counts.
Orders Made
- Leave to appeal against conviction on all grounds except Ground 1 (in part) granted.
- The appeal is dismissed.
Key Takeaways
- A post-arrest statement made by an accused to an investigating officer who is performing an advisory function, rather than conducting an investigation, does not necessarily constitute "official questioning" under section 281 of the Criminal Procedure Act 1986, and may be admissible as an implied admission.
- The Court of Criminal Appeal confirmed that acquittals on some counts in a multi-complainant trial do not automatically render guilty verdicts on other counts inconsistent, where the evidence relating to each complainant is assessed separately and distinct.
- Under section 66F(3) of the Crimes Act 1900, the Crown must prove both that the complainant was cognitively impaired and that the accused knew of and intended to take advantage of that impairment; proof of lack of consent is not required.
- No error was established in the trial judge's analysis of the reliability of evidence given by cognitively impaired complainants, and the Court of Criminal Appeal found the convictions were properly supported.
- In dismissing the appeal, the Court affirmed that the high probative value of an implied admission can outweigh any prejudicial effect, and that section 137 of the Evidence Act 1995 did not require its exclusion on the facts of this case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 66F(3)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 90, 137
Cases
- Bryant v R [2011] NSWCCA 26
- CR v R [2017] NSWCCA 29
- DJW v R [2015] NSWCCA 164
- Hughes v R [2017] HCA 20
- Kelly v R (2004) 218 CLR 216; [2004] HCA 12
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- McIntosh v R [2015] NSWCCA 184
- Nguyen v R [2017] NSWCCA 145