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Court of Criminal Appeal 24 November 2023

DI v R

[2023] NSWCCA 293

Sexual offences

Citation: DI v R [2023] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 24 November 2023
Judges: Ward P, Fagan J, Sweeney J

Background

The applicant had been found unfit to stand trial on charges of sexual offending alleged to have occurred in 1996 against his then partner's daughter. Because he was unfit to stand trial, the matter proceeded by way of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). A special hearing is a modified form of trial that proceeds on the "limited evidence available" when an accused person cannot be tried in the ordinary way.

The special hearing was conducted by a judge alone in the District Court. The trial judge found that the applicant had committed the offences charged in three of the nine counts (counts 1, 4, and 7), each involving sexual intercourse without consent. The applicant was found not guilty of three further counts (counts 3, 6, and 9), and no findings were made on the alternative counts (2, 5, and 8). A total limiting term of 10 years was imposed.

The applicant sought leave to appeal to the Court of Criminal Appeal. The complainant's mother, who faced related charges arising from the same alleged events, had already been acquitted by the Court of Criminal Appeal in separate proceedings.

  • Whether the findings that the applicant committed the offences in counts 1, 4, and 7 were unreasonable and not supported by the evidence
  • Whether the trial judge erred in her treatment of complaint evidence and failed to comply with the requirement under s 21B of the Act to state the principles of law applied and findings of fact relied upon
  • Whether the trial judge erred in her treatment of forensic disadvantage and similarly failed to comply with s 21B of the Act

Decision

The Court granted leave to appeal and allowed the appeal on the first ground, making it unnecessary to consider grounds 2 and 3. Each of the three judges independently reviewed the whole of the evidence before the trial judge, applying the principles governing unreasonable verdict appeals as set out in M v The Queen (1994) 181 CLR 487 and more recently summarised in Slattery v R [2023] NSWCCA 117. That approach requires the appellate court to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt about guilt, while making due allowance for the trial judge's advantage in seeing and hearing witnesses.

All three judges reached the same conclusion: the complainant's evidence, which was critical to proof of the charges, was undermined by significant inconsistencies, improbabilities, and material contradictions from other witnesses. Sweeney J delivered the principal reasons, with Ward P and Fagan J each independently confirming the same finding. None of the judges considered that the trial judge's advantage in observing the witnesses firsthand was capable of resolving the doubts that arose from the evidence as a whole.

The Court found that the verdicts on counts 1, 4, and 7 were unreasonable. Because the alternative counts 2, 5, and 8 were based on the same alleged acts and the same evidence, the same conclusion applied to those counts. The Court further observed that, upon the charges being dismissed, the applicant would cease to be a forensic patient by operation of s 52(4) of the Act, and gave the parties liberty to apply for any further orders regarding the applicant's placement.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The trial judge's findings dated 19 February 2021 that on the limited evidence available the applicant committed the offences the subject of counts 1, 4, and 7 are quashed
  • Verdicts of acquittal entered in respect of counts 1, 2, 4, 5, 7, and 8

Key Takeaways

  • On an unreasonable verdict ground arising from a special hearing, the Court of Criminal Appeal must independently assess the totality of the evidence and determine whether any reasonable doubt exists, rather than simply reviewing the trial judge for error in factual findings.
  • Significant inconsistencies and improbabilities in a complainant's evidence, compounded by material contradictions from other witnesses, can render findings made after a special hearing unreasonable even where the trial judge had the benefit of seeing and hearing the witnesses.
  • Where an appeal succeeds on an unreasonableness ground, the same conclusion extends to any alternative counts that rest on the same alleged acts and evidence, even if no formal findings were made on those counts at first instance.
  • Under s 52(4) of the Mental Health (Forensic Provisions) Act 1990 (NSW), a person ceases to be a forensic patient when the relevant charges against them are dismissed, which may follow directly from the Court of Criminal Appeal entering acquittals.
  • The acquittal of a co-accused in related proceedings does not automatically determine the outcome of a separate appeal by another accused, but both cases here produced the same result after independent appellate review of the evidence.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 21A, 21B, 21(3), 22, 22(3)(c), 27, 42, 52(4)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SC v R [2023] NSWCCA 60
- Slattery v R [2023] NSWCCA 117