AB (A Pseudonym) v The Queen - [2018] HCATrans 134

[2018] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S186 of 2018

B e t w e e n -
AB (A PSEUDONYM)
Applicant
and
THE QUEEN
Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 25 JULY 2018, AT 9.28 AM

MR M.A. ROBINSON, SC: If the Court pleases, I appear with my learned friend, MS V.M. HEATH, for the applicant. (instructed by Brendon Dunstan, Solicitor)

MR H. BAKER, SC: If the Court pleases, I appear for the respondent with my learned friend, MS B.K. BAKER. (instructed by Office of the Director of Public Prosecutions (NSW))

HIS HONOUR: Mr Robinson.

MR ROBINSON: Your Honour, I move on the summons for a stay that was filed on 20 July this year.

HIS HONOUR: Yes.

MR ROBINSON: In support of the summons I read an affidavit of Mr Brendon Tony Dunstan made 19 July 2018 and filed on 20 July 2018.

HIS HONOUR: Yes, thank you. I have looked at that affidavit. Is there any particular part you wish me to focus on?

MR ROBINSON: I will come to that if I may. Can I also tender the exhibit, BDT‑1, referred to in that affidavit? Does your Honour have the exhibit as well?

HIS HONOUR: You can, but do you need to?

MR ROBINSON: I think I do, your Honour. I need to, even if I only refer to it in reply.

HIS HONOUR: I read the affidavit of Brendon Tony Dunstan sworn 19 July 2018 and I admit as the exhibit bearing that designation exhibit BTD‑1 of that affidavit.

MR ROBINSON: I think I might have got it the other way around, sorry, your Honour ‑ it is BTD. I am happy to take your Honour through the salient parts of this affidavit. If your Honour has read the body of it, what appears at the back of it is an update of the social media, as it were, that appears now on Facebook. These are not private lists, your Honour. These are lists that are made public and, indeed, my instructing solicitor, Mr Dunstan, who swore this affidavit, pulled down this material and printed it and it is presented from – I am sorry, the pages are not numbered, your Honour, but from page 10 onwards this is an indication of what is being said about my client.

Your Honour will see, for example, on what would be page 11 my client is named, after the word “Dubbo” at point 4 on the page. Can your Honour see that? I am reluctant to name it – to say his name publicly.

HIS HONOUR: I am sorry – page?

MR ROBINSON: It would be 11, but after page 10.

HIS HONOUR: Of the affidavit are you speaking of?

MR ROBINSON: Yes, under the heading “The Criminali list”:

Red flag Alert – Red Flag Alert
Dubbo –

and your Honour sees my client’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB (A Pseudonym) v The Queen

Details

AGLC: AB (A Pseudonym) v The Queen [2018] HCATrans 134
Case: [2018] HCATrans 134
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by AB (a pseudonym) against a conviction for a sexual offence. The dispute centred on the admissibility of certain evidence during the trial.

The primary legal issue before the High Court was whether the trial judge erred in admitting evidence of the appellant's prior sexual conduct with the complainant, which had occurred some years before the offence charged. This involved determining whether the evidence was relevant and, if so, whether its probative value outweighed its prejudicial effect, particularly in light of the appellant's defence.

Gageler J, delivering the judgment of the Court, reasoned that the evidence of prior sexual conduct was relevant to establishing the nature of the relationship between the appellant and the complainant and to rebutting the appellant's defence that the sexual activity was consensual. His Honour applied the principles governing the admission of such evidence, emphasising the need for a careful balancing of its potential to prove an element of the offence or rebut a defence against the risk of it unfairly prejudicing the appellant in the eyes of the jury. The Court found that the trial judge had properly conducted this balancing exercise.

The appeal was dismissed.

Orders