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Court of Criminal Appeal 18 December 2020

Denton v R

[2020] NSWCCA 341

Sexual offences
APPEAL ALLOWED, CONVICTION SET ASIDE VERDICT OF ACQUITTAL ENTERED

Citation: Denton v R [2020] NSWCCA 341
Court: NSW Court of Criminal Appeal
Date: 18 December 2020
Judges: Simpson AJA, Bellew J, Wilson J

Background

The applicant was tried in the District Court in mid-2018 on an indictment containing 16 counts of sexual offending against a complainant who was under 16 at the relevant time. The jury convicted him on count 1, an act of indecency under s 61N(1) of the Crimes Act 1900 (NSW), and was unable to reach a verdict on several remaining counts. The count arose from an allegation that the applicant had exposed his penis to the complainant, showing her what she described as an "abnormal" feature on it.

Central to the prosecution case was the complainant's evidence and two drawings she had made during police interviews, each depicting a penis with a marking she labelled "abnormal spot on penis" or "abnormal skin flap." To support this account, the Crown arranged for a general practitioner, Dr Charles Lee, to examine the applicant and provide evidence about whether any abnormality was observable.

This appeal arose in unusual procedural circumstances. The applicant had faced a second trial on the remaining counts, and in those proceedings the trial judge ruled Dr Lee's evidence inadmissible. The Court of Criminal Appeal upheld that ruling on a prosecution appeal. The applicant then sought leave, out of time, to challenge his conviction in the first trial on grounds that had not been raised at that trial.

  • Whether leave should be granted under r 4 of the Criminal Appeal Rules (NSW) to raise grounds not argued at trial
  • Whether Dr Lee's expert opinion evidence was admissible under ss 76 and 79 of the Evidence Act 1995 (NSW), given that he disclosed he had no specialised training in anatomy or urology
  • Whether the admission of Dr Lee's evidence, and the invitation to the jury to compare a police photograph of the applicant's penis with the complainant's drawings, caused a miscarriage of justice
  • Whether, if grounds 1 and 2 succeeded, it was necessary to determine the third ground concerning evidence given by another expert in the second trial

Decision

Ground 1: Admissibility of Dr Lee's evidence. The Court found that Dr Lee did not possess the specialised knowledge required by s 79 of the Evidence Act to give admissible expert opinion about whether any feature of the applicant's penis was abnormal. Dr Lee had himself disclosed in his report that he had no special training in anatomy or urology. His opinions, framed around whether the frenulum was "wider and thicker" or "shorter than usual," exceeded what a general practitioner without relevant specialised training could reliably say. The Court regarded Honeysett v The Queen (2014) 253 CLR 122 as directly applicable. Because no objection had been taken at trial, the Court considered whether to grant leave under r 4 of the Criminal Appeal Rules. It concluded that the admission of the evidence had caused a miscarriage of justice, and leave was granted.

Ground 2: The photograph and the jury comparison. Exhibit 18 was a police photograph of the applicant's penis, marked by Dr Lee to identify the location of the frenulum. The Crown invited the jury to compare that marked photograph with the complainant's drawings and draw an inference that both depicted the same feature. Once Dr Lee's evidence was held inadmissible, his marking on the photograph lost any evidentiary foundation, leaving the photograph effectively meaningless for comparison purposes. The Court also noted that in the second trial proceedings, the Court of Criminal Appeal had already ruled the photograph inadmissible and saw no reason to depart from that conclusion. The invitation to the jury to make the comparison caused a miscarriage of justice, and this ground was upheld.

Ground 3: Evidence from the second trial. Simpson AJA found it unnecessary to resolve this ground. The success of grounds 1 and 2 was sufficient to warrant allowing the appeal. The Court declined to determine whether evidence given by a different expert in the second trial would have altered the outcome of the first.

Because the conviction was tainted by the inadmissible evidence and the resulting miscarriage of justice, the Court did not order a retrial. A verdict of acquittal was entered.

Orders Made

  • The time in which to appeal was extended to 2 December 2019
  • Leave was granted to appeal against the conviction of 9 July 2018 for the offence of committing an act of indecency
  • The appeal was allowed and the conviction was set aside
  • A verdict of acquittal was entered

Key Takeaways

  • Under s 79 of the Evidence Act 1995 (NSW), an opinion is only admissible as expert evidence if it is wholly or substantially based on specialised knowledge derived from relevant training, study or experience. A general practitioner who expressly disclaimed any specialised knowledge in anatomy or urology could not satisfy that threshold when opining on anatomical abnormality.

  • Leave to raise a ground not argued at trial may be granted under r 4 of the Criminal Appeal Rules where the admission of the evidence in question produced a miscarriage of justice, even without an objection at trial.

  • Comparison evidence inviting the jury to match a photograph with a complainant's drawings depended entirely on the validity of the expert's markings. Once the expert's evidence was found inadmissible, the evidentiary basis for the comparison collapsed with it.

  • A prior ruling by the Court of Criminal Appeal on the admissibility of the same evidence in related proceedings carried considerable weight. The Court saw no basis to depart from its earlier conclusion that the photograph was inadmissible.

  • Where grounds succeed and a conviction is set aside for miscarriage of justice, an acquittal rather than a retrial may be the appropriate order, depending on the circumstances of the case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61N(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5F(3A)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 76, 79

Cases
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- R v Denton [2019] NSWCCA 81
- R v Thomas Denton, District Court (NSW), 3 April 2019, unrep
- Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402