R v Dann [2000] NSWCCA 185

New South Wales Court of Criminal Appeal

CITATION : R v Dann [2000] NSWCCA 185 FILE NUMBER(S) : CCA 60286/99 HEARING DATE(S) : 15 May 2000 JUDGMENT DATE : 19 May 2000

PARTIES : Regina v Nicholas Trevor Dann JUDGMENT OF : Spigelman CJ at 1; Heydon JA at 2; James J at 46

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0100 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : Crown - L.M.B. Lamprati Appellant - P.R. Boulten SOLICITORS : Crown - S.E. O'Connor Appellant - T.A. Murphy

Crimes Act 1900 LEGISLATION CITED : Evidence Act 1995 Criminal Procedure Act 1986 R v AH 42 NSWLR 702 CASES CITED: R v Beserick (1993) 30 NSWLR 510 Pfennig v R (1995) 182 CLR 461 DECISION : Appeal allowed; convictions quashed; new trial ordered

IN THE COURT OF CRIMINAL APPEAL

60286/99

SPIGELMAN CJ HEYDON JA JAMES J

Friday, 19 May 2000

REGINA v Nicholas Trevor DANN JUDGMENT

1 SPIGELMAN CJ: I agree with Heydon JA. 2 HEYDON JA

Background

This is an appeal by Nicholas Trevor Dann against his conviction on 5 May 1999 on two counts of homosexual intercourse with his seven year old stepson, contrary to s 78H of the Crimes Act 1900. The trial, before Freeman DCJ and a jury at Albury, took two days. The two incidents, one involving the stepson fellating the accused and the other involving the accused having anal intercourse with the stepson, took place on a single occasion while the stepson was having a bath and the accused a shower. The events took place in the family home at Albury occupied by the accused, his wife, their four children and the stepson. The specific date of the events was not clear: they were alleged to have taken place between 1 January 1997 and 31 March 1997. 3 At the time of the trial the stepson was nine. 4 The accused was not charged in relation to three other incidents occurring later in 1997 after the family moved to Queensland, but the stepson gave evidence about them, over objection. One involved the stepson fellating the accused in the toilet of the family home, one was an incident in a moving car in which the stepson sat on the accused's penis, and another in a car at a dump involving the accused having anal intercourse and touching the stepson's penis. 5 There were three grounds of appeal, supported by the spirited submissions of Mr P Boulten (who did not appear at the trial).