Denton v R [2020] NSWCCA 341

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Denton v R [2020] NSWCCA 341 Hearing dates: 3 June 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Before: Simpson AJA at [1] Bellew J at [78] Wilson J at [79] Decision: 1. The time in which to appeal is extended to 2 December 2020. 2. Leave is granted to appeal against the conviction of 9 July 2018 for the offence of committing an act of indecency. 3. Appeal allowed, conviction set aside. 4. A verdict of acquittal is entered. Catchwords: CRIME — Appeal — Appeal against conviction — point not raised below – where expert evidence admitted in first trial was ruled inadmissible in second trial – where ruling of trial judge in second trial was upheld in Court of Criminal Appeal – where following second trial the applicant sought leave to appeal against conviction in first trial – where no objection was taken to evidence at first trial – leave granted under r 4 Criminal Appeal Rules (NSW) as admission of the evidence led to a miscarriage of justice CRIME — Appeal — Appeal against conviction — miscarriage of justice — where Crown relied on the complainant's drawing depicting an "abnormal skin flap" on applicant's penis – where Crown adduced expert evidence from a general practitioner that there was no "major abnormality" in the applicant's penis but it was "moderately unusual" – where general practitioner did not have specialised knowledge of anatomy or urology based on relevant training, study or experience – where jury invited to make comparison of drawing and photograph based on expert evidence of abnormality – held, admission of evidence led to miscarriage of justice – appeal allowed, conviction set aside – verdict of acquittal entered Legislation Cited: Crimes Act 1900 (NSW), s 61N(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Crimes (Forensic Procedures) Act 2000 (NSW) Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 5F(3A) Criminal Appeal Rules (NSW), r 4 Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW), ss 76, 79. Cases Cited: Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 R v Denton [2019] NSWCCA 81 R v Thomas Denton, District Court (NSW), 3 April 2019, unrep Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 Category: Principal judgment Parties: Thomas Denton (Applicant) Regina (Respondent) Representation: Counsel: C Smith SC/A Cook (Applicant) M Kumar (Crown)