R v Dwyer [1999] NSWCCA 47

R v Dwyer [1999] NSWCCA 47

The jury directions on competing versions, read as a whole, adequately conveyed the Crown's burden and the need to scrutinise the complainant's evidence, so those grounds failed. However, the complaint evidence was hearsay, was not fresh for s 66 of the Evidence Act 1995, and no leave under s 108(3) had been sought or obtained. Although no objection was taken at trial, leave to argue the point was granted because the trial preceded Graham v The Queen and the approach in R v Gillard was followed. The inadmissible complaint evidence required the appeal to be upheld, but a new trial rather than acquittals was ordered because a properly instructed reasonable jury could be satisfied beyond...

Jurisdiction
Australia
Judgment Date
25 March 1999
Procedural Posture
Criminal Appeal Against Convictions and Sentences / Appeal to the New South Wales Court of Criminal Appeal From District Court Jury Trial Convictions
Outcome
Appeal upheld; convictions and sentences quashed; new trial ordered.
Legal Topics
['sexual Assault Against a Person Under Sixteen' 'indecent Assault Against a Person Under Sixteen' 'complaint Evidence' 'fresh Complaint' 'hearsay' 'jury Directions on Burden of Proof' 'summing Up' 'unreasonable Verdict' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Assault Against a Person Under Sixteen' 'indecent Assault Against a Person Under Sixteen' 'complaint Evidence' 'fresh Complaint' 'hearsay' 'jury Directions on Burden of Proof' 'summing Up' 'unreasonable Verdict' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Sentences / Appeal to the New South Wales Court of Criminal Appeal From District Court Jury Trial Convictions

Legal Issues

  1. 1 ["Whether the trial judge erred by directing the jury that its fundamental task was to choose between the complainant's and appellant's competing versions." "Whether the jury had to be directed that they needed to be satisfied beyond reasonable doubt of the complainant's account." "Whether evidence of the complainant's complaints, which were not fresh, was admissible." 'Whether leave should be granted to argue inadmissibility of complaint evidence despite no objection at trial.' 'Whether the appeal should result in acquittals or a new trial.']

Ratio Decidendi

The jury directions on competing versions, read as a whole, adequately conveyed the Crown's burden and the need to scrutinise the complainant's evidence, so those grounds failed. However, the complaint evidence was hearsay, was not fresh for s 66 of the Evidence Act 1995, and no leave under s 108(3) had been sought or obtained. Although no objection was taken at trial, leave to argue the point was granted because the trial preceded Graham v The Queen and the approach in R v Gillard was followed. The inadmissible complaint evidence required the appeal to be upheld, but a new trial rather than acquittals was ordered because a properly instructed reasonable jury could be satisfied beyond...

Court Disposition

Appeal upheld; convictions and sentences quashed; new trial ordered.

Orders

  • ['Appeal upheld' 'Convictions and sentences quashed' 'New trial ordered']