Agnew v The Queen

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.