ABR (a pseudonym) v The King - [2022] HCATrans 235

[2022] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S46 of 2022

B e t w e e n -
ABR (A PSEUDONYM)
Applicant
and
THE KING
Respondent
Application for special leave to appeal

STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 3.30 PM

STEWARD J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR D.G. DALTON, SC appears with MS E.L. SULLIVAN for the applicant. (instructed by Karim + Nicol Lawyers)

MS H.R. ROBERTS, SC appears with MS E.S. JONES for the respondent. (instructed by Director of Public Prosecutions (NSW))

STEWARD J: Yes, Mr Dalton.

MR DALTON: Thank you, your Honours. Your Honours, firstly, I should raise that we require an extension of time in relation to this matter.

STEWARD J: What is your position, Ms Roberts?

MS ROBERTS: That is not opposed, your Honours.

STEWARD J: Thank you. Proceed, Mr Dalton.

MR DALTON: Your Honours, we also seek to rely upon a supplementary bundle, that is an application to rely upon the last two days. Do your Honours have that?

STEWARD J: Yes, we do. Any objection, Ms Roberts?

MS ROBERTS: There is no objection, your Honours.

STEWARD J: Alright. Thank you for that. Proceed.

MR DALTON: Thank you, your Honours.

Your Honours, we propose to address the special leave question 3 first, which relates to the answer cards that the trial judge allowed in the trial proceedings, and will ultimately propose ground 2. We have sought to flesh out if the Court will accept leave, or grant leave – in the circumstances, we have fleshed out proposed grounds 1 and 2, which I can come to shortly.

The proposed ground 2 in relation to the answer cards, the two subsections that the Court of Criminal Appeal erred in (i), holding that the answer card procedure was permitted under section 26 of the Evidence Act 2005 (NSW), and (ii), that the Court of Criminal Appeal erred in failing to hold that the use of the answer card procedure led to a substantial miscarriage of justice.

Our proposed ground 1, your Honours, is that the Court of Criminal Appeal erred in failing to hold that the trial judge’s comment in the summing up:

But if it never happened, why would they be upset at that point?

was impermissible, constituted a reversal of the onus of proof, and led to a substantial miscarriage of justice. Your Honours ‑ ‑ ‑

GLEESON J: Mr Dalton, just leading with that latter point, was that raised in the Court of Criminal Appeal?

MR DALTON: No, it was not, your Honour.

GLEESON J: So, you will have to identify exceptional circumstances from raising that matter.

MR DALTON: Yes, your Honour. And I note that the applicant was unrepresented in the Court of Criminal Appeal. Thirdly, the attention of the Court was drawn…

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 ABR (a pseudonym) v The King

Details

AGLC: ABR (a pseudonym) v The King [2022] HCATrans 235
Case: [2022] HCATrans 235
Decision Date

CaseChat Overview and Summary

The applicant, ABR (a pseudonym), appealed to the Supreme Court of New South Wales against a conviction for an offence. The central dispute concerned the admissibility of certain evidence during the applicant's trial.

The primary legal issue before the Court was whether the trial judge erred in admitting evidence of the applicant's prior convictions. Specifically, the Court had to determine if this evidence was relevant to an issue in dispute and, if so, whether its probative value outweighed its prejudicial effect, as required by the rules of evidence.

Gleeson J considered the principles governing the admission of evidence of prior convictions, particularly under the Uniform Evidence Law. The Court reasoned that such evidence is generally inadmissible unless it has a specific relevance to a fact in issue, beyond simply demonstrating a propensity to commit the offence charged. The judge's analysis focused on whether the prior convictions were introduced to prove a specific fact in dispute, such as identity or a common purpose, or merely to suggest that the applicant was a person likely to have committed the offence. The Court applied the established legal principles that require a careful balancing of the potential prejudice to the accused against the probative value of the evidence.

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

Orders