Baini v The Queen [2012] HCATrans 197 - [2012] HCATrans 197

[2012] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M145 of 2011

B e t w e e n -
MICHEL BAINI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 11.27 AM

MR P.F. TEHAN, QC: If the Court pleases, I appear for the applicant in this matter. (instructed by Defteros Lawyers)

MR T. GYORFFY, SC, May it please the Court, I appear with my learned friend, MS D. KARAMICOV, for the respondent. (instructed by Director of Public Prosecutions (VIC))

GUMMOW J: Yes, Mr Tehan.

MR TEHAN: Your Honours, this is a case where there should be a grant of special leave because of the general importance of the issue and that issue is when it can be said that there is a substantial miscarriage of justice where criminal charges are improperly joined. The issue arises in the context of the application of a new provision dealing with the determination of criminal appeals in this State, that is section 276 of the Criminal Procedure Act 2009. That gives rise to the question as to whether this new provision indicates any substantive change to the test or to the approach to be taken by the appellate court as dictated by this Court in Weiss v The Queen (2005) 224 CLR 300.

GUMMOW J: Now, is there much debate about section 276 in the Court of Appeal here, in this case?

MR TEHAN: It is not completely apparent that the Court applied 276 for two reasons, your Honour. If I could take the Court to application book page 157.

GUMMOW J: This is in a setting where there is to be a new trial on count 50 is it, but not them all?

MR TEHAN: Yes, and what we sought was a retrial on all counts. One sees that the Court set out three matters commencing at paragraph 63 which had changed since Demirok’s Case. The third of those matters, of course, was that section 568 had been replaced by section 276 of the Criminal Procedure Act:

The proviso has gone. In terms, an applicant must satisfy the Court, where one or other of paragraphs (b) and (c) applies, that ‘there has been a substantial miscarriage of justice’ . . .
The first two developments are of present relevance, as is the fourth; but not the third.

Interestingly, over the page at application book 159 in footnote 51 the court states:

It will be the same if s 276(1)(b) or (c) of the Criminal Procedure Act 2009 is in point: Sibanda v The Queen –

But accepting the proposition that the court did in fact apply 276, in our submission, the question which was raised in the application of Sibanda earlier this morning arises in this case and we seek to litigate the same point. So…

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: [2012] HCATrans 197
Decision Date

CaseChat Overview and Summary

In *Baini v The Queen*, the High Court of Australia considered an appeal from a decision of the Supreme Court of Queensland. The appellant, Mr. Baini, had been convicted of murder and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence during his trial.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the appellant's prior convictions. Specifically, the court had to determine if this evidence was improperly used to suggest that the appellant had a propensity to commit criminal acts, thereby prejudicing the jury against him.

Gummow and Hayne JJ found that the evidence of prior convictions was indeed improperly admitted. Their Honours reasoned that the evidence did not fall within any of the exceptions to the general rule against admitting evidence of prior convictions to prove propensity. The admission of this evidence was considered to have created a real risk of unfair prejudice, as it invited the jury to infer guilt based on the appellant's past criminal behaviour rather than on the evidence relating to the offence charged. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders