Regina v Barton [2004] NSWCCA 229

Regina v Barton [2004] NSWCCA 229

The appeal was allowed because the trial miscarried. The trial judge failed adequately to discriminate between allegations of lesser and greater seriousness when permitting tendency and coincidence reasoning and at least the trial concerning Anthony and Anton should have been separated from the trial concerning the other complainants. Evidence from Kelly and Jesse was used as tendency and coincidence evidence without statutory notice and without the necessary discrimination. Opie's evidence about shaving a detainee before surgery was irrelevant. The coincidence direction wrongly implied absence of concoction or contamination was accepted. In addition, defence counsel's erroneous...

Jurisdiction
Australia
Judgment Date
08 July 2004
Procedural Posture
Criminal Appeal Against Conviction / Appeal From Convictions After Jury Trial in the District Court; Alternative Application for Leave to Appeal Against Sentence Not Dealt With Because the Conviction Appeal Was Allowed
Outcome
Appeal against conviction allowed; convictions and sentences quashed; new trial ordered.
Legal Topics
['charges of Sexual Assault Involving Multiple Complainants' 'tendency Evidence' 'coincidence Evidence' 'separate Trials' 'relationship Evidence' 'jury Directions' 'fresh or New Evidence Not Called at Trial' 'conduct of Trial by Legal Representatives' 'good Character Evidence' 'miscarriage of Justice']
['criminal Law and Procedure' 'evidence' 'sexual Offences'] ['charges of Sexual Assault Involving Multiple Complainants' 'tendency Evidence' 'coincidence Evidence' 'separate Trials' 'relationship Evidence' 'jury Directions' 'fresh or New Evidence Not Called at Trial' 'conduct of Trial by Legal Representatives' 'good Character Evidence' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal From Convictions After Jury Trial in the District Court; Alternative Application for Leave to Appeal Against Sentence Not Dealt With Because the Conviction Appeal Was Allowed

Legal Issues

  1. 1 ['Whether the joint trial of counts concerning multiple complainants caused a miscarriage of justice, including because allegations of lesser seriousness were used as tendency or coincidence evidence in relation to more serious allegations.' 'Whether evidence of uncharged acts concerning Kelly and Jesse was wrongly admitted or used as tendency, coincidence or relationship evidence without statutory notice and without necessary discrimination.' "Whether evidence from Deborah Opie about the appellant shaving a detainee's pubic area before surgery was relevant or admissible." 'Whether evidence not led at trial concerning possible contamination, credibility and Keelong policies caused or contributed to a miscarriage of justice.' "Whether the trial judge's directions on tendency evidence, relationship evidence and coincidence evidence were erroneous." "Whether the appellant's failure to give evidence and the failure to call available good character evidence, in circumstances affected by defence counsel's erroneous understanding of surveillance material, caused a miscarriage of justice."]

Ratio Decidendi

The appeal was allowed because the trial miscarried. The trial judge failed adequately to discriminate between allegations of lesser and greater seriousness when permitting tendency and coincidence reasoning and at least the trial concerning Anthony and Anton should have been separated from the trial concerning the other complainants. Evidence from Kelly and Jesse was used as tendency and coincidence evidence without statutory notice and without the necessary discrimination. Opie's evidence about shaving a detainee before surgery was irrelevant. The coincidence direction wrongly implied absence of concoction or contamination was accepted. In addition, defence counsel's erroneous...

Court Disposition

Appeal against conviction allowed; convictions and sentences quashed; new trial ordered.

Orders

  • ['Appeal against conviction allowed.' 'Convictions and sentences in the District Court quashed.' 'New trial ordered upon the counts of the indictment upon which the appellant was convicted.']