Dansie v The Queen - [2022] HCATrans 14

[2022] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A16 of 2021

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

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 18 FEBRUARY 2022, AT 12.07 PM

KIEFEL CJ: I will announce the appearances of the parties.

MR T.A. GAME, SC appears with MR K.G. HANDSHIN, QC for the applicant. (instructed by Nathan White Lawyers)

MR D. PETRACCARO, SC appears with MS I.M. KIMBER for the respondent. (instructed by the Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. We need an extension of time. The substance of that application is in an affidavit at page 319 of the application book.

KIEFEL CJ: Is there any objection to that course, Mr Petraccaro?

MR PETRACCARO: No, your Honour.

MR GAME: Thank you, your Honour. Your Honours, this obviously enough was and is quite a complicated circumstantial evidence case, and if we seek a grant of leave and succeed, we would be seeking an order remitting the matter to the Court of Criminal Appeal rather than have the Court deal with the ultimate evidentiary issues involved in the application. Which brings me to the direct issue, which is, does this case raise a question of principle?

The position we put is this, that the different approaches taken by Justice Livesey and Justice Nicholson in the Full Court in South Australia is not explained by just a difference of opinion about the weight of the evidence, it is driven by a question of principle, that is to say, a wrong application of principle by Justice Livesey that was joined in by Justice Parker. And I will seek to explain that, briefly, if I can. So if I take your Honours to – and it runs deep, in our respectful submission, as to how his Honour deals with factual findings made by the trial judge.

So if I take your Honours to page 494 – sorry, page 298 of the application book, this is the end of his judgment, paragraph 494, his Honour says that, talking about the finding of inferences:

it is not suggested by the appellant that the various inferences tending towards guilt were not open or could not be drawn . . . He contends for different inferences. The potential for argument about inferences does not necessarily generate a basis for concluding that the trier of fact must, as distinct from may –

Now, those words, “must”, appear quite a number of times in Justice Livesey’s judgment, and what that suggests is some kind of higher test than that applied in M v The Queen, and that subject was effectively, in our respectful submission, put to bed by your Honour’s judgment in Pell. And in fact, the very paragraph of…

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 Dansie v The Queen

Details

AGLC: Dansie v The Queen [2022] HCATrans 14
Case: [2022] HCATrans 14
Decision Date

CaseChat Overview and Summary

In *Dansie v The Queen*, the High Court of Australia considered an appeal from a conviction for a sexual offence. The appellant, Dansie, had been found guilty by a jury and subsequently appealed to the Court of Criminal Appeal of South Australia, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the issue of consent, specifically in relation to the appellant's belief that the complainant had consented. The appeal also raised questions concerning the proper application of the *Criminal Law Consolidation Act 1935* (SA) and the common law principles governing the defence of honest and reasonable belief in consent.

The High Court held that the trial judge's directions to the jury on the issue of consent were insufficient. Their Honours explained that a direction on the defence of honest and reasonable belief in consent must clearly convey to the jury that they must acquit the accused if they are satisfied that the accused honestly believed the complainant consented, even if that belief was unreasonable. However, the reasonableness of the belief is a relevant factor for the jury to consider when assessing whether the belief was honestly held. The Court emphasised that the ultimate question for the jury is whether the accused genuinely believed that the complainant consented, and the reasonableness of that belief is evidence going to the honesty of the belief.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Court of Criminal Appeal of South Australia for a re-hearing.

Orders