Dries v R [2022] NSWCCA 33

Dries v R [2022] NSWCCA 33

Although the Crown Prosecutor overstepped by referring to the complainant's lack of sexual experience, the prosecutor promptly and expressly withdrew the submission and corrected the record, and the trial judge gave clear, strongly worded directions that there was no evidence of the complainant's sexual experience, inexperience, exposure to sexual matters or prior sexual abuse and that the jury must not speculate. In the circumstances, including the trial judge's assessment of the jury and the timing of the retraction and directions, any prejudice was overcome and the applicant suffered no practical injustice or miscarriage of justice. The other criticisms of the Crown address did not...

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction Following Refusal of Application to Discharge Jury
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'discharge of Jury' "prosecutor's Closing Address" 'sexual Offence Against Child' "complainant's Sexual Experience" 'criminal Procedure Act 1986 (nsw), S 293' 'miscarriage of Justice' 'judicial Directions']
['criminal Law' 'criminal Procedure' 'evidence'] ['appeal Against Conviction' 'discharge of Jury' "prosecutor's Closing Address" 'sexual Offence Against Child' "complainant's Sexual Experience" 'criminal Procedure Act 1986 (nsw), S 293' 'miscarriage of Justice' 'judicial Directions']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction Following Refusal of Application to Discharge Jury

Legal Issues

  1. 1 ["Whether a miscarriage of justice was occasioned by the trial judge's failure to discharge the jury after the Crown Prosecutor referred in closing address to the complainant's lack of sexual experience." "Whether the Crown's retractions and the trial judge's directions were sufficient to overcome any prejudice arising from impermissible references in the Crown closing address." "Whether other criticisms of the Crown closing address, including references to context evidence, a pack of lies, misquoting evidence and matters not put in cross-examination, assisted the applicant's case."]

Ratio Decidendi

Although the Crown Prosecutor overstepped by referring to the complainant's lack of sexual experience, the prosecutor promptly and expressly withdrew the submission and corrected the record, and the trial judge gave clear, strongly worded directions that there was no evidence of the complainant's sexual experience, inexperience, exposure to sexual matters or prior sexual abuse and that the jury must not speculate. In the circumstances, including the trial judge's assessment of the jury and the timing of the retraction and directions, any prejudice was overcome and the applicant suffered no practical injustice or miscarriage of justice. The other criticisms of the Crown address did not...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']