Regina v D W H [1999] NSWCCA 255

Regina v D W H [1999] NSWCCA 255

The complaint evidence was admitted and used for credibility without the necessary inquiry into its admissibility under the Evidence Act 1995, without consideration of leave under s.108(3)(b), and without analysis of its relationship to the separate counts. Much of it was not shown to be fresh under s.66, and the Crown's alternative bases did not cure the procedural miscarriage. Because the case turned on the complainant's credibility and the complaint evidence was significant, the proviso to s.6(1) of the Criminal Appeal Act 1912 was not applicable. The appeal was upheld and a new trial ordered.

Jurisdiction
Australia
Judgment Date
24 August 1999
Procedural Posture
Criminal Appeal / Appeal Against Convictions After District Court Trial
Outcome
Appeal upheld; new trial ordered.
Legal Topics
['sexual Offences' 'complaint Evidence' 'prior Consistent Statements' 'hearsay' 'credibility Evidence' 'leave Under Evidence Act 1995' 'proviso Under Criminal Appeal Act 1912' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Offences' 'complaint Evidence' 'prior Consistent Statements' 'hearsay' 'credibility Evidence' 'leave Under Evidence Act 1995' 'proviso Under Criminal Appeal Act 1912' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Convictions After District Court Trial

Legal Issues

  1. 1 ["Whether the trial judge erred by failing to consider whether leave should be granted under s.108(3) of the Evidence Act 1995 before admitting complaint evidence in relation to counts one to four and directing that it could be used to bolster the complainant's credibility." 'Whether complaint evidence concerning earlier events was admissible as fresh in the memory under s.66 of the Evidence Act 1995 or as contemporaneous representations under s.72.' 'Whether the absence of objection at trial prevented the appellant from raising the complaint evidence issue on appeal.' 'Whether the proviso to s.6(1) of the Criminal Appeal Act 1912 should be applied on the basis that no substantial miscarriage of justice occurred.']

Ratio Decidendi

The complaint evidence was admitted and used for credibility without the necessary inquiry into its admissibility under the Evidence Act 1995, without consideration of leave under s.108(3)(b), and without analysis of its relationship to the separate counts. Much of it was not shown to be fresh under s.66, and the Crown's alternative bases did not cure the procedural miscarriage. Because the case turned on the complainant's credibility and the complaint evidence was significant, the proviso to s.6(1) of the Criminal Appeal Act 1912 was not applicable. The appeal was upheld and a new trial ordered.

Court Disposition

Appeal upheld; new trial ordered.

Orders

  • ['Appeal upheld' 'New trial ordered']