Citation: O'Hearn (formerly DAO (No 4)) v R [2021] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 21 May 2021
Judge(s): Hoeben CJ at CL, N Adams J, Hidden AJ (judgment by Hidden AJ, others agreeing)
Background
The applicant, a Catholic priest, was convicted in a 2016 retrial of child sexual offences against two complainants, identified as SM and MB. Those convictions followed an earlier 2012 trial, in which the applicant had also been convicted but had successfully appealed, resulting in a retrial being ordered.
A central issue at the retrial concerned the case of MB, who alleged abuse during 1990 to 1991 when the applicant was assistant priest at Cessnock. Another priest, Vincent Ryan, was the parish priest there at the same time. The defence raised the possibility that MB had mistaken Ryan for the applicant as his abuser. Ryan gave evidence for the Crown at the retrial, asserting he had previously confessed the entirety of his offending to police and that MB was not among his victims. At the time of giving that evidence, Ryan was facing further charges of child sexual abuse, which he denied.
In 2019, Ryan was tried and convicted on several of those additional charges, including offences involving a complainant who had been an altar boy at Cessnock during a period overlapping with the allegations made by MB. The applicant then sought leave to appeal his 2016 convictions, relying on Ryan's 2019 convictions as fresh evidence.
Legal Issues
- Whether Ryan's 2019 convictions constituted fresh evidence capable of supporting a grant of leave to appeal the applicant's 2016 convictions.
- Whether those convictions were admissible, at a notional retrial, as evidence that Ryan had actually committed the additional offences (and thus potentially was also responsible for the offences against MB).
- Whether the absence of that evidence at the original trial gave rise to a miscarriage of justice.
- The proper scope and application of s 91 of the Evidence Act 1995 (NSW), which limits the use of a prior conviction as proof of the facts underlying it.
Decision
Hidden AJ accepted that Ryan's 2019 convictions were fresh evidence in the relevant sense: they did not exist at the time of the applicant's trial and could not have been obtained with reasonable diligence. The application was also out of time, but the Crown appropriately conceded that the extension question should turn on the merits of the application itself.
The core problem with the applicant's case, however, was the operation of s 91 of the Evidence Act. That provision prevents a party from relying on a judgment or conviction as proof of the facts on which it was based. Ryan's 2019 convictions could therefore not be used to prove that Ryan had actually committed those additional offences. Without being able to establish that Ryan committed those acts, the fresh evidence could not support the hypothesis that Ryan, rather than the applicant, had abused MB.
At a notional retrial, Ryan's additional convictions could be placed before the court, but only for the purpose of assessing his credibility as a witness. The jury at the original trial had already been told that Ryan had been convicted of offences involving some 27 boys. Hidden AJ concluded it was difficult to see that evidence of two further convictions of the same kind would have had any significant additional impact on the jury's assessment of Ryan's credibility.
The Court therefore held that there was no significant possibility that the jury, acting reasonably, would have acquitted the applicant if the fresh evidence had been available. The application lacked sufficient merit to warrant leave to appeal. The Court granted the extension of time but refused leave to appeal.
Orders Made
- Extension of time to apply for leave to appeal granted.
- Leave to appeal refused.
Key Takeaways
- Under s 91 of the Evidence Act 1995 (NSW), a prior conviction cannot be used as evidence of the facts underlying it. A conviction obtained against a third-party witness after the trial under challenge cannot therefore be relied upon to prove that the witness, rather than the accused, committed the relevant offences.
- Fresh evidence that post-dates a trial will not support leave to appeal unless there is a significant possibility that its availability would have led a reasonable jury to acquit. Evidence going only to a witness's general credibility may fall short of that threshold, particularly where the jury already knew of extensive prior convictions of the same kind.
- Where the sole basis for a fresh evidence argument is a witness's subsequent convictions, the admissible use of that evidence at a notional retrial is confined to credit. The court will assess whether, so limited, the evidence could have made a material difference to the verdict.
- Refusing leave to appeal, the Court of Criminal Appeal confirmed that the miscarriage of justice question must be answered by reference to what the fresh evidence could actually establish within the rules of evidence, not what counsel might wish it could prove.
- An application that is out of time but raises a fresh evidence ground will have its extension question assessed on the merits of the underlying ground, a position accepted by the Crown in this case and consistent with established practice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 474D
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), ss 91, 106
- Vexatious Proceedings Act 2008 (NSW)
Cases
- Ainsworth v Burden [2005] NSWCA 174
- DAO v R (No 2) [2014] NSWCCA 126
- Hollington v Hewthorn & Co Ltd [1943] KB 587
- MRW v R [2011] NSWCCA 260
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Davidson (No 1) [2019] NSWSC 980
- R v Heuston [2003] NSWCCA 172; 140 A Crim R 422