Denton v R [2020] NSWCCA 341

Denton v R [2020] NSWCCA 341

Dr Lee's opinion evidence was inadmissible because his qualifications and experience as a general practitioner did not give him specialised knowledge in anatomy or urology sufficient to express an opinion about whether the applicant's penis was abnormal or unusual for the purposes of s 79 of the Evidence Act 1995 (NSW). His evidence gave the prosecution case an unwarranted appearance of science and the jury's note showed it played a significant part in the conviction on count 1, causing a miscarriage of justice. Once Dr Lee's evidence and marking of the photograph were disregarded, the photograph was all but meaningless for comparison with the complainant's drawings, and this Court had...

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal; Appeal Determined
Outcome
Appeal allowed; conviction set aside; verdict of acquittal entered.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'opinion Evidence' 'expert Evidence' 'evidence Act 1995 (nsw) S 79' 'criminal Appeal Rules (nsw) R 4' 'act of Indecency']
['criminal Law' 'evidence' 'criminal Appeals'] ['appeal Against Conviction' 'miscarriage of Justice' 'opinion Evidence' 'expert Evidence' 'evidence Act 1995 (nsw) S 79' 'criminal Appeal Rules (nsw) R 4' 'act of Indecency']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time and Leave to Appeal; Appeal Determined

Legal Issues

  1. 1 ["Whether leave under r 4 of the Criminal Appeal Rules (NSW) should be granted where no objection was taken at trial to the admission of Dr Lee's evidence." "Whether Dr Lee's opinion evidence about an alleged abnormality or unusual feature of the applicant's penis was admissible under s 79 of the Evidence Act 1995 (NSW)." "Whether admission of Dr Lee's evidence caused a miscarriage of justice." "Whether the admission of the photograph and the Crown invitation to compare it with the complainant's drawings caused a miscarriage of justice." 'Whether the applicant should be permitted to rely on new or fresh evidence from Dr Wines.']

Ratio Decidendi

Dr Lee's opinion evidence was inadmissible because his qualifications and experience as a general practitioner did not give him specialised knowledge in anatomy or urology sufficient to express an opinion about whether the applicant's penis was abnormal or unusual for the purposes of s 79 of the Evidence Act 1995 (NSW). His evidence gave the prosecution case an unwarranted appearance of science and the jury's note showed it played a significant part in the conviction on count 1, causing a miscarriage of justice. Once Dr Lee's evidence and marking of the photograph were disregarded, the photograph was all but meaningless for comparison with the complainant's drawings, and this Court had...

Court Disposition

Appeal allowed; conviction set aside; verdict of acquittal entered.

Orders

  • ['The time in which to appeal is extended to 2 December 2020.' 'Leave is granted to appeal against the conviction of 9 July 2018 for the offence of committing an act of indecency.' 'Appeal allowed, conviction set aside.' 'A verdict of acquittal is entered.']