Agnew v The Queen - [2022] HCATrans 138

[2022] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B78 of 2021

B e t w e e n -
PETER JAMES AGNEW
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 AUGUST 2022, AT 11.30 AM

KEANE J: As the Court is sitting remotely, I will announce the appearances for the parties.

MR S.C. HOLT, QC appears with MS Z.G. BRERETON for the applicant. (instructed by Phillips Crawford Lawyers)

MR T.A. FULLER, QC appears with MR S.J. BAIN for the respondent. (instructed by the Office of the Director of Public Prosecutions (QLD))

KEANE J: Yes, Mr Holt.

MR HOLT: Yes, may it please the Court. We require an extension of time. I am authorised by Mr Fuller to say that that is now not opposed, if the Court pleased.

KEANE J: Thanks. You have your extension.

MR HOLT: May it please the Court. This application deals with the unreasonable verdict ground that was taken below. Could I ask the Court immediately to go to application book 49 and paragraph [54] of Justice Flanagan’s reasons writing for the court? As his Honour, with respect, accurately puts it, the way in which the unreasonable verdict ground was put below was on the basis of:

a single matter which is said to render the guilty verdict unreasonable.

That matter was the profound unreliability said to exist by virtue of the fact that the complainant purported to have a recovered memory of the rape that was the subject of that ground of appeal 35 years after it occurred, having previously repressed it.

Having acknowledged, as his Honour did, that the unreasonable verdict ground was put on the basis of a single matter, that is, almost a Monsignor Portelli‑type point – an intellectual roadblock, as we put it – to the acceptance of the complainant’s evidence beyond reasonable doubt, regrettably and, with respect, what the Court of Appeal then did was fail to grapple with that aspect of the appeal – that singular ground – at all. That sits, in our submission, at the heart of this application, in the sense that Mr Agnew was in truth denied an appeal in the Queensland Court of Appeal on the ground of appeal as he put it below and was squarely acknowledged by the court at paragraph [54].

What the Court then does, because paragraph 54 sits under the heading “Submissions on Ground 1” – and so again, in context of summarising the submission, sets out the evidence at paragraphs 56 and 57, which I will come back to if I need to. Then, at paragraphs 58 and 59, summarise respectively the appellant’s position and the Crown’s position on that recovered or triggered memory point which was at the heart of the appeal. The difficulty then occurs, in our submission, because from paragraphs 60 and following…

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.

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Details

Case: [2022] HCATrans 138
Decision Date

CaseChat Overview and Summary

This matter comes before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Agnew, seeks to challenge a decision of the Queensland Court of Appeal. The core of Mr Agnew's argument is that the Court of Appeal failed to adequately consider a ground of appeal alleging that the guilty verdict returned at trial was unreasonable. This ground was advanced on the singular basis that the complainant purported to have a recovered memory of the alleged rape, which occurred 35 years prior, after having previously repressed it.

The legal issue before the High Court is whether the Queensland Court of Appeal properly grappled with the ground of appeal concerning the alleged unreliability of the complainant's evidence due to a recovered memory. Mr Agnew submits that the Court of Appeal, in its consideration of this ground, did not squarely address the issue of the recovered memory, which he contends was the central and singular basis for the unreasonableness claim. He argues that the Court of Appeal's reasoning, particularly from paragraph 60 onwards, did not engage with this specific point of alleged unreliability, thereby denying him a proper appeal on that ground.

The applicant's argument is not that recovered memories are inherently unreliable in all cases, but rather that in the specific circumstances of this case, the nature of the recovered memory gave rise to a "profound concern about reliability." Mr Agnew contends that the Court of Appeal was obliged, under the principles established in *M v The Queen*, to analyse the record, including other evidence, to determine if the trial judge could still have been satisfied of guilt beyond reasonable doubt. He submits that the Court of Appeal's judgment did not demonstrate this necessary analysis, instead providing a conclusion that was not sufficiently supported by engagement with the core issue of the recovered memory. The Court of Appeal's reasoning, particularly paragraph 67, is argued to be a conclusion premised on *M v The Queen* without the requisite analysis of the specific ground of appeal as presented.

Orders