Atholwood v the Queen P35/2000 - [2000] HCATrans 637

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P35 of 2000

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

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 11.21 AM

MR R. RICHTER, QC: If the Court pleases, I appear for the applicant.. (instructed by Pryles & Defteros)

MR S.P. PALLARAS, QC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

McHUGH J: Yes, Mr Pallaras. Yes, Mr Richter.

MR RICHTER: If the Court pleases, the question that arises from the circumstances in the judgment in this case is whether the applicant lost a reasonable or a sensible opportunity of an acquittal by reason of the directions of the trial judge on the issue of the elements of possession. As the case proceeded and as the evidence unfolded, it was clear that what was in issue was the question of whether or not the applicant had knowledge of the buried drugs. That was only one issue. What was in issue was the question of whether or not the applicant was in possession of the buried drugs, and those are two very, very different things.

In my respectful submission, there is a tendency to confuse those two in cases of this type where, in a direction to the jury, a case in which an accused denies knowledge of the substance is simply left to be resolved on the issue of whether or not he knew the substance and the question of possession then follows accordingly.

McHUGH J: But the trial judge’s directions, read as a whole, went beyond that, did it not?

MR RICHTER: With respect, no, and the reason I submit that it did not is because the whole emphasis was not on the residual question that arises, if there is knowledge. The applicant gave evidence in which he denied knowledge but he also gave other significant evidence of the existence of another gentleman who had keys, who stayed at his place from time to time and who had drugs there.

McHUGH J: I thought that Mr Holmes had given evidence that only your client had the key ‑ ‑ ‑

MR RICHTER: He gave evidence that he gave my client the key but he also gave evidence that on a subsequent occasion when he tried to get into the house the lock had been changed. So one is not in a position to say, on the evidence, that there was only the one key and, even if Mr Holmes had not given the evidence that the lock had, in fact, been changed and he could not open it with his key, there would have still been the obvious possibility of a copy being made of the key and supplied to the other fellow. That is…

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: [2000] HCATrans 637
Decision Date: 27 October 2000

CaseChat Overview and Summary

In *Atholwood v The Queen*, the High Court of Australia considered an appeal by the applicant, Atholwood, 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. Specifically, the court had to determine if this evidence was relevant to proving the applicant's guilt of the murder charge, or if its prejudicial effect outweighed its probative value.

McHugh and Hayne JJ held that the admission of the prior convictions was an error. They reasoned that the evidence of prior convictions was not relevant to any issue in the murder trial and was therefore inadmissible. The court applied the principle that evidence of prior convictions is generally inadmissible unless it has a specific relevance to the charge being tried, such as demonstrating a pattern of conduct or intent. In this instance, the prior convictions did not meet that threshold, and their admission was likely to have unfairly prejudiced the applicant in the eyes of the jury.

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

Orders