CTM v The Queen - [2008] HCATrans 117

[2008] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S591 of 2007

B e t w e e n -
C.T.M.
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 29 FEBRUARY 2008, AT 10.03 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friends, MR A.C. HAESLER, SC and MS J.S. MANUELL. (instructed by Legal Aid Commission of New South Wales)

MR D.C. FREARSON, SC: May it please the Court, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, I wish to make an application to amend the grounds of appeal to include an additional ground. It does not make any difference in substance to the argument. If I just show you this document. The ground is that the Court of Criminal Appeal erred in finding that an offence under section 66C(3) was an offence of absolute liability. The reason that the ground is included is because, on a proper analysis of the provisions, it may be that something other than honest and reasonable mistake of fact is the mental element attaching to ‑ ‑ ‑

GLEESON CJ: Is this opposed, Mr Frearson?

MR FREARSON: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR GAME: May I pass this document in and if we could have leave to file that document in the Registry?

GLEESON CJ: Yes.

HAYNE J: The grant, I thought, Mr Game, of leave was limited, was it not, to this one ground and you are seeking to enlarge the ground, are you not?

MR GAME: Your Honour, the ground that was refused concerned a submission that the verdict was unsafe. This is only about the same question of statutory interpretation and this is only included to cover the possibility that in construction of these provisions you would conclude perhaps that an element of ‑ ‑ ‑

GUMMOW J: Look, the point is, Mr Game, you have to expand your grant of special leave, have you not?

MR GAME: I beg your pardon?

GUMMOW J: You have got to have an expansion of the grant of special leave. You cannot circumvent a limited grant of special leave simply by turning up here and trying to expand a notice of appeal, because the subject matter of the appeal itself has to first be expanded, does it not?

MR GAME: In those circumstances, I ask for an expansion of the grant of special leave, but may I make it plain we are arguing about the same question, which is the proper construction of this statutory provision.

KIRBY J: Can we have a look at the grounds?

MR GAME: Yes, certainly, your Honour.

GLEESON…

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 CTM v The Queen

Details

AGLC: CTM v The Queen [2008] HCATrans 117
Case: [2008] HCATrans 117
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by CTM against his conviction for a sexual offence. The dispute concerned the admissibility of certain evidence during CTM's trial.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of CTM's prior sexual misconduct, which was alleged to be similar to the offence charged. This involved determining whether the evidence was relevant and, if so, whether its probative value outweighed its prejudicial effect, in accordance with the principles governing the admission of such evidence in criminal proceedings.

The High Court, in a joint judgment, held that the evidence of prior sexual misconduct was not admissible. Their Honours reasoned that the similarities between the prior conduct and the offence charged were not sufficiently striking or unique to establish a nexus between them that went beyond mere propensity. The court emphasised that evidence of prior misconduct should only be admitted where its probative value in establishing a fact in issue is substantial and outweighs the risk of unfair prejudice to the accused. In this instance, the similarities were not so distinctive as to warrant departure from the general rule that evidence of bad character or prior misconduct is inadmissible.

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

Orders