Arthur v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Arthur, sought leave to appeal against a decision of a lower court. The respondent was the Crown. The central issue raised by the applicant concerned the conduct of the trial judge during the examination of a key witness, a 10-year-old girl.

The legal question before the Court was whether the trial judge's intervention in the examination of the child witness extended beyond permissible limits, effectively usurping the role of the prosecutor. Specifically, the applicant contended that the judge took on the prosecutor's function of conducting the examination of the witness on the very events upon which the jury was required to deliberate. The applicant argued that this intervention was improper and prejudiced the applicant's case.

The applicant's argument focused on specific exchanges within the trial transcript where the judge intervened to ask questions. These interventions occurred after the prosecutor had attempted to elicit evidence regarding events in a bedroom, including what the applicant said and did. The judge's questions directed the witness to specific details about clothing and physical contact, leading to evidence of the applicant pulling down the witness's and another child's knickers, and subsequent touching. The judge continued to question the witness about the nature and location of this touching, and then about whether the witness touched the applicant. The applicant submitted that this active questioning by the judge, particularly on sensitive and crucial aspects of the alleged offending, constituted an improper assumption of the prosecutor's role.