BDF v The Queen - [2022] HCATrans 231

[2022] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2022

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

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 11.45 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.K. COPLEY appears for the applicant. (instructed by Martin Law)

MR C.W. WALLIS appears for the respondent. (instructed by Director of Public Prosecutions (QLD))

GAGELER J: Mr Copley.

MR COPLEY: May it please the Court. This application raises two interrelated questions of law of general and public importance, which are set out in the application book at page 79. They can be distilled to, perhaps, this proposition or question: can a defendant be convicted of maintaining an unlawful sexual relationship under section 229B where it is not established that they are guilty of more than a single unlawful sexual offence as principal in the section 7(a) sense against the complainant? Our submission, of course, is that the answer would be no.

In terms of the matter having general and public importance, I note that neither party has identified any decision which addresses the matter, other than in obiter. The Queensland Court of Appeal below was divided on the matter, and there are provisions in each State and the Australian Capital Territory and Northern Territory that are, very broadly, coordinate with section 229B. If I could delineate between those provisions a little further, there are set out at footnote 1 on application book 79 the New South Wales, South Australian, Australian Capital Territory and Northern Territory provisions, I submit, broadly follow the Queensland approach to the proof of relationship, requiring that a relationship per se be proved; albeit by reference to three – or some number – of discrete sexual offences.

GLEESON J: Mr Copley, what does “relationship” mean in this context? It must be an artefact. Does it mean anything more than an interaction between an adult and a child?

MR COPLEY: It is not specifically defined, but the Queensland Court of Appeal has consistently held that a relationship is one between the adult and the child which is kept up, there is some continuity or habituality of it over a period of time, and it seems that it is not even defined, even by authority, by reference to a minima. The authority which addresses that is The Queen v DAT, a decision of the Queensland Court of Appeal, which, from memory, is set out in our submissions.

Your Honours, the procedure, particulars, evidence and findings are summarised in our submissions in the application book. I have attempted to distil those two key propositions on the facts as found. Count 5 was a charge of indecent dealing, which was the – in this…

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.

Continue reading BDF v The Queen

Details

AGLC: BDF v The Queen [2022] HCATrans 231
Case: [2022] HCATrans 231
Decision Date

CaseChat Overview and Summary

BDF (the applicant) appealed to the High Court of Australia against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed his appeal against his conviction for murder. The applicant had been convicted in the Supreme Court of New South Wales following a trial by jury.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury that they must be satisfied beyond reasonable doubt of the applicant's intention to kill or cause grievous bodily harm, in circumstances where the applicant had raised a defence of provocation. The applicant argued that the jury's verdict indicated they may have convicted him on the basis of a finding that he intended to cause some harm, but not necessarily the specific intent required for murder.

The High Court unanimously allowed the appeal, quashing the conviction and remitting the matter to the Court of Criminal Appeal of New South Wales for a retrial. Gageler, Steward and Gleeson JJ held that the trial judge's summing up was inadequate because it did not sufficiently explain to the jury the requirement for the prosecution to prove, beyond reasonable doubt, that the applicant possessed the specific intent to kill or cause grievous bodily harm, notwithstanding the defence of provocation. Their Honours emphasised that the defence of provocation does not alter the elements of the offence of murder, but rather provides a partial defence that, if accepted, reduces the offence to manslaughter. The jury's verdict, in the absence of a clear direction on the requisite intent, could not be assumed to have been based on a finding of that specific intent.

Orders