Braysich v The Queen - [2010] HCATrans 268

[2010] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P32 of 2010

B e t w e e n -
JEFFREY JOSEPH BRAYSICH
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 19 OCTOBER 2010, AT 12.28 PM

MR M.J. McCUSKER, QC: May it please, your Honours, I appear with my learned friend, MR S.J. LEMONIS, for the appellant. (instructed by Ainslie van Onselen)

MR W.B. ZICHY‑WOINARSKI, QC: If your Honours please, I appear on behalf of the respondent with my learned friend, MS W.F. GILLAN. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Thank you. We will sit through to 1 o’clock, Mr McCusker.

MR McCUSKER: Thank you, your Honour. May it please your Honour, this is an appeal brought pursuant to special leave granted on 30 July this year. The notice of appeal and grounds of appeal are in volume 3 of the appeal books at pages 1504 to 1505. My instructing solicitor, by letter of 13 October, did advise the Registry – I do not know if it was brought to your Honours’ attention yet – that ground 3 contains a typographical omission and that is the first line should read “further erred in law in not holding” rather than “in holding”. So I would move to amend that ground so as to include the word “not”.

FRENCH CJ: Yes, I do not think there is much room for misunderstanding there. Thank you.

MR McCUSKER: I do not think so, your Honours. Your Honours, the question raised by this appeal, if I could put it shortly, is whether it is a breach of the appellant’s right to a fair trial by jury for the trial judge to have refused to allow him to call two witnesses whose evidence, as the defence contended, would have been relevant to the statutory defence available for charges laid under section 998(1) of the Code and further, whether it was a breach of his right to a fair trial to refuse to allow defence counsel to invite the jury, in closing, to consider whether that defence had been established and further, whether it was a breach of that right to a fair trial that his Honour the trial judge refused to direct the jury to consider that defence.

The appellant, as your Honours will see, was charged with creating a false and misleading appearance of active trading in shares in a company called Intrepid, which is an offence under section 998(1) of the Corporations Law. I said Code – it is the law. That legislation appears in tab 4 of the appellant’s bundle of authorities. In section 998(5) there is a deeming provision, that is, “a false or misleading appearance” is deemed to be created if a transaction:

does not involve any change in the beneficial ownership –

The Crown…

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: [2010] HCATrans 268
Decision Date

CaseChat Overview and Summary

Braysich v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Braysich, had been found guilty of murder by a jury in the Supreme Court of South Australia and subsequently appealed to the Court of Criminal Appeal of South Australia, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence during the trial.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior convictions and prior bad character, which had been admitted under s 102 of the *Evidence Act 1929* (SA) as evidence of a tendency to commit the offence charged. The Court also considered whether the admission of this evidence, if it was wrongly admitted, had caused a substantial miscarriage of justice, thereby requiring the quashing of the conviction.

The High Court held that the evidence of prior convictions and bad character was wrongly admitted under s 102 of the *Evidence Act 1929* (SA). The Court reasoned that the tendency evidence did not establish a sufficient degree of relevance to the offence charged to warrant its admission. Furthermore, the Court found that the admission of this prejudicial evidence had resulted in a substantial miscarriage of justice, as it was likely to have unfairly influenced the jury's verdict. Consequently, the High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of South Australia for a retrial.

Orders