Abbott v The Queen - [2015] HCATrans 265

[2015] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S93 of 2015

B e t w e e n -
STEPHEN ZADE ABBOTT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 11.36 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS J.L. ROY. (instructed by Nadia’s Law)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases, we need an extension of time.

FRENCH CJ: Is that objected to?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR GAME: Thank you, your Honour. Could I take your Honours to the application book at page 68? That is an extract in our submissions but you will see at 66 and 67 we set out that those witnesses – O’Dea, the host - Mr Balchin, and Mr Tucker – none of them could give an actual account, or gave an actual account of the assault although on Mr Tucker’s account the applicant was the assailant, and the applicant gave evidence. Then it was Mr Webb who gave evidence about what he said was the intoxication of the applicant. Now, we turn to page 68, and this is part of the prosecutor’s address, but properly understood it is really the central part of his address. There is just this and a submission about, shall I say, the circumstantial facts.

FRENCH CJ: Well, there is a key question in this case, is there not, as to whether or not accepting that some of what the prosecutor said, if it had been in a direction, would have constituted an error on the part of the judge, whether having regard to the judge’s direction there was a miscarriage.

MR GAME: Yes, your Honour, but I am going to submit in a moment that there are much deeper problems with this passage than the Court appreciated. But all the judge said about the addresses appears at page 4 of the application book:

You will give counsel’s addresses such weight as you think appropriate –

So there are no words said to detract from this and what I put is that the direction about motive concerning the accused puts him at a disadvantage from which he cannot recover. There is nothing that can be said to meet that submission. Now, I want though first to just extract what I say is the meaning of this address. If you go to the top of page ‑ ‑ ‑

FRENCH CJ: Does that mean the jury should have been discharged?

MR GAME: Yes, the judge should have stopped the trial at that moment.

GAGELER J: Nobody asked for that to occur.

MR GAME: Nobody did, but nobody understood what…

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 Abbott v The Queen

Details

AGLC: Abbott v The Queen [2015] HCATrans 265
Case: [2015] HCATrans 265
Decision Date

CaseChat Overview and Summary

In *Abbott v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr. Abbott, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This involved determining whether the probative value of this evidence outweighed its prejudicial effect, and whether it was relevant to an issue in dispute in the trial, rather than merely going to the applicant's propensity to commit crime.

The High Court, comprising French CJ and Gageler J, analysed the principles governing the admission of such evidence under the Uniform Evidence Law. Their Honours found that the evidence of prior convictions and bad character was not relevant to any issue in dispute in the murder trial and was therefore inadmissible. The prejudicial effect of this evidence was substantial, as it risked leading the jury to infer guilt based on the applicant's past conduct rather than on the evidence relating to the offence charged. Consequently, the admission of this evidence constituted a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders