DAO v R (No 2) [2014] NSWCCA 126

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DAO v R (No 2) [2014] NSWCCA 126 Hearing dates: 5 December 2013 Decision date: 10 July 2014 Before: Simpson J at [1]; Adams J at [202]; Price J at [203] Decision: (1) The appeal against the conviction is allowed;

(2) The convictions and sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 are quashed, and verdicts of acquittal entered;

(3) The convictions and sentences in respect of counts 9 to 21 inclusive are quashed;

(4) In respect of those counts there be a new trial. Catchwords: CRIMINAL LAW - appeal - conviction - sexual offences - Crimes Act 1900 (NSW) - multiple grounds pleaded - whether primary judge erred by failing to order separate trials for each of four complainants - whether primary judge erred by admitting evidence of tendency with respect to each respective complainant - sections 97 and 101 Evidence Act 1995 (NSW) - no jurisdiction to entertain this ground - issue litigated in DAO v R [2011] NSWCCA 63 - whether verdicts unreasonable and cannot be supported by evidence - jury ought to have entertained a doubt about the allegations made by two complainants - open to jury to be satisfied beyond reasonable doubt of guilt with respect to remaining two complainants - unable to exclude real possibility jury used flawed cases in support of their conclusions on remaining allegations - appeal against convictions allowed - convictions quashed - sentences in respect of counts 1, 2, 3, 5, 7, 8, 22 and 23 quashed and verdicts of acquittal entered - sentences in respect of counts 9 to 21 inclusive quashed and new trials ordered Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3) Evidence Act 1995 (NSW), s 97, s 101 Cases Cited: DAO v R (NSWDC, 4 November 2010, unreported) DAO v R [2011] NSWCCA 63; 81 NSWLR 568 DAO v The Queen [2011] HCA Trans 298 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: DAO (Appellant) Regina (Respondent) Representation: Counsel: D Dalton SC (Appellant) M Cinque (Respondent)