DS v R [2018] NSWCCA 195

DS v R [2018] NSWCCA 195

The appeal was allowed because the evidence concerning BS, whose allegations had earlier resulted in acquittals based on the Crown's failure to rebut doli incapax, was left to the jury as evidence of a tendency to sexually assault young relatives. That use impermissibly treated conduct not proved to be criminal as establishing a tendency to commit sexual crimes, created unfair prejudice, and controverted the basis of the earlier acquittals. Although the evidence could have been used only to support a tendency to have a sexual interest in young children of siblings and to engage sexually with them, it could not support a tendency to sexually assault. Basten JA also held that the evidence...

Jurisdiction
Australia
Judgment Date
10 September 2018
Procedural Posture
Criminal Conviction Appeal / Appeal to the Court of Criminal Appeal From Conviction and Sentence in the District Court of New South Wales
Outcome
Appeal against conviction upheld; conviction and sentence quashed; matter remitted to the District Court.
Legal Topics
['sexual Intercourse Without Consent' 'homosexual Intercourse With Male Under 10 Years' 'tendency Evidence' 'doli Incapax' 'prior Acquittals' 'probative Value and Unfair Prejudice' 'recorded Admissions' 'unreasonable Verdict']
['criminal Law' 'evidence Law'] ['sexual Intercourse Without Consent' 'homosexual Intercourse With Male Under 10 Years' 'tendency Evidence' 'doli Incapax' 'prior Acquittals' 'probative Value and Unfair Prejudice' 'recorded Admissions' 'unreasonable Verdict']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Conviction Appeal / Appeal to the Court of Criminal Appeal From Conviction and Sentence in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether evidence of the appellant's earlier conduct with his niece, which had been the subject of Local Court acquittals based on failure to rebut doli incapax, was admissible as tendency evidence in the trial concerning alleged sexual offences against his nephew." 'Whether the tendency evidence was impermissibly left to the jury as showing a tendency to sexually assault young relatives, thereby controverting the earlier acquittals.' 'Whether the recorded pretext telephone call admissions were admissible and how they could be used.' "Whether the guilty verdict on count 3 was unreasonable having regard to the evidence and the jury's failure to agree on counts 1 and 2." 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The appeal was allowed because the evidence concerning BS, whose allegations had earlier resulted in acquittals based on the Crown's failure to rebut doli incapax, was left to the jury as evidence of a tendency to sexually assault young relatives. That use impermissibly treated conduct not proved to be criminal as establishing a tendency to commit sexual crimes, created unfair prejudice, and controverted the basis of the earlier acquittals. Although the evidence could have been used only to support a tendency to have a sexual interest in young children of siblings and to engage sexually with them, it could not support a tendency to sexually assault. Basten JA also held that the evidence...

Court Disposition

Appeal against conviction upheld; conviction and sentence quashed; matter remitted to the District Court.

Orders

  • ['Appeal against conviction is upheld.' 'Conviction and sentence are quashed.' 'Matter is remitted to the District Court.']