BQ v The King - [2024] HCATrans 35

[2024] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S173 of 2023

B e t w e e n -
BQ
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 MAY 2024, AT 10.00 AM

MS G.A. BASHIR, SC: May it please the Court, I appear with MS G.E.L. HUXLEY and MS N.A. WOOTTON for the appellant. (instructed by Legal Aid NSW)

MS H.R. ROBERTS, SC: May it please the Court, I appear with MS M.L. MILLWARD for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ: Thank you, Ms Roberts. Ms Bashir.

MS BASHIR: Your Honours, this appeal concerns expert evidence admitted to serve an educative function and the exception to the opinion rule insofar as expertise is based in particular on study. Your Honours, if I could take the Court immediately to both section 79 and the Australian Law Reform Commission, Uniform Evidence Law (Report No 102), which is a joint report also of the New South Wales Law Reform Commission (Report No 112) and the Victorian Law Reform Commission Final Report. It is found at volume 5, tab 27, in the joint appeal books at 635.

If I could take the Court to page 641, this is, in particular, in relation to the amendment of section 79 to introduce subsection (2) as a clarificatory position. Your Honours, what the Commission found was that:

opinion evidence on child development and behaviour (including the effects of sexual abuse on the development and behaviour of children) can . . . be important evidence in assisting the tribunal of fact to assess other evidence or to prevent –

and we particularly rely on this passage:

inappropriate reasoning processes based on misconceived notions about children and their behaviour.

That is at paragraph 9.155, and at 9.156 we would just read that also. In particular, the purpose was in acknowledgement that:

Australian courts continue to demonstrate a reluctance to admit such evidence under s 79.

This, of course, is speaking in 2005, and:

that s 79 should be amended to clarify the position.

The recommendation was not any major departure. I will come back to the remainder of the policy position. But we then see, in the decision of the New South Wales Court of Criminal Appeal in Aziz v The Queen (2022) 110 NSWLR 317, which is volume 4, tab 19, page 326. Paragraph 52 is where her Honour Justice Simpson starts to trace the legislative history of section 79.

STEWARD J: I am sorry, I missed the page number.

MS BASHIR: It is page 326, in book 4.

STEWARD J: Thank you very much.

JAGOT J: The acoustics are not great at my end, could I just get you to repeat ‑ ‑ ‑

MS BASHIR: Sorry.

JAGOT J: No, that is fine. Thank you.

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 BQ v The King

Details

AGLC: BQ v The King [2024] HCATrans 35
Case: [2024] HCATrans 35
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in the matter of *BQ v The King*. The appellant, BQ, sought to challenge a decision of the Court of Criminal Appeal of New South Wales. The core of the dispute concerned the admissibility of certain evidence during BQ's trial for serious criminal offences.

The High Court was required to determine whether the evidence in question, which was obtained following an alleged breach of the appellant's rights, should have been admitted into evidence at trial. Specifically, the Court considered the application of the exclusionary rule and the principles governing the admission of evidence obtained in contravention of an accused's rights, particularly in light of the *Crimes Act 1900* (NSW).

The Court's reasoning focused on the balance between the need to admit relevant evidence and the protection of individual rights. It applied established principles of evidence law, considering the nature of the alleged contravention, the probative value of the evidence, and the potential prejudice to the appellant. The Court affirmed that the admissibility of such evidence is a discretionary matter for the trial judge, guided by considerations of fairness and the proper administration of justice.

The High Court dismissed the appeal, upholding the decision of the Court of Criminal Appeal.

Orders