R v BDF [1999] NSWCCA 98

R v BDF [1999] NSWCCA 98

The complainant's evidence contained significant discrepancies between her statements and trial evidence, including changes from allegations of penetration to evidence of attempted penetration and implausible or convenient explanations for inconsistencies. Those deficiencies ought to have raised a reasonable doubt, and it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The convictions were therefore unsafe and had to be quashed, with verdicts of acquittal entered rather than a new trial ordered.

Jurisdiction
Australia
Judgment Date
06 May 1999
Procedural Posture
Criminal Appeal Against Conviction / Court of Criminal Appeal
Outcome
Appeal allowed; convictions quashed; order for a new trial vacated; judgment and verdict of acquittal directed on each count.
Legal Topics
['unsafe and Unsatisfactory Verdict' 'sexual Offences Against a Child' 'cross Examination of Unfavourable Witness' 'complaint Evidence' 'delay in Complaint' 'admissibility of Medical Evidence' 'jury Directions']
['criminal Law' 'evidence' 'criminal Procedure'] ['unsafe and Unsatisfactory Verdict' 'sexual Offences Against a Child' 'cross Examination of Unfavourable Witness' 'complaint Evidence' 'delay in Complaint' 'admissibility of Medical Evidence' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the convictions were unsafe and unsatisfactory.' "Whether the trial judge erred in granting leave to the Crown under s38 of the Evidence Act 1995 (NSW) to cross-examine the complainant's mother." "Whether evidence of the complainant's mother's suspicions and of the appellant walking around the house naked was wrongly admitted." 'Whether the evidence of Dr Gardner concerning possible pre-pubertal penile penetration was wrongly admitted.' 'Whether evidence of Gaynor concerning a conversation with the appellant on 20 August 1996 was wrongly admitted.' "Whether the trial judge's directions concerning delay in complaint were inadequate." 'Whether complaint evidence should have been limited pursuant to s136 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The complainant's evidence contained significant discrepancies between her statements and trial evidence, including changes from allegations of penetration to evidence of attempted penetration and implausible or convenient explanations for inconsistencies. Those deficiencies ought to have raised a reasonable doubt, and it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The convictions were therefore unsafe and had to be quashed, with verdicts of acquittal entered rather than a new trial ordered.

Court Disposition

Appeal allowed; convictions quashed; order for a new trial vacated; judgment and verdict of acquittal directed on each count.

Orders

  • ['The appeal is allowed.' 'The convictions are quashed.' 'The order that a new trial be ordered is vacated.' 'A judgment and verdict of acquittal is to be entered on each count.']