DL v The Queen - [2018] HCATrans 83

[2018] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S309 of 2017

B e t w e e n -
DL
Appellant
and
THE QUEEN
Respondent

BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 MAY 2018, AT 10.02 AM

MS G.A. BASHIR, SC: May it please the Court, I appear with my learned friend, MS G.E.L. HUXLEY, for the appellant. (instructed by Matouk Joyner Solicitors)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MS T.L. SMITH for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Ms Bashir.

MS BASHIR: Your Honours, we have provided the Court with our oral outline. Would the Court like to wait ‑ ‑ ‑

BELL J: Yes, perhaps if you just give us a moment. Yes, Ms Bashir.

MS BASHIR: Your Honours, sections 5(1) and 6(3) of the Criminal Appeal Act 1912 (NSW), which is found in the joint authorities book No 1, section 6(3) being a common form sentencing appeal provision, have not extinguished or limited by express words or otherwise the obligation to afford procedural fairness to an offender on his or her appeal. The authority to determine an offender’s appeal may be lawfully exercised only if procedural fairness is extended, and that has been affirmed recently by Chief Justice Bathurst’s decision in Lehn v The Queen (2016). It is at tab 11 of the second joint authorities book.

BELL J: I think, Ms Bashir, the respondent accepts that procedural fairness applies.

MS BASHIR: Your Honour, it was paragraph 65 of that judgment.

BELL J: Yes.

MS BASHIR: It is the content of the obligation on an offender’s severity appeal that appears to be in issue on ground 1 of the appeal. Your Honours, in our submission, the first applicable principle as set out in our written submission is that a person is entitled to have adequate notice and opportunity to be heard before any judicial order is pronounced against him or her, which includes the opportunity to put his or her case and to meet the case that is put against him or her.

The second applicable principle is that a court is to give notice of an intention to consider evidence which supports an adverse or aggravated finding on sentence where no such finding is sought by the Crown and to provide an opportunity to an offender to be heard on it.

A useful summary of the leading authorities is found, and I need not trouble the Court by taking them to it, but is found in the decision of President Buss of the Western Australian Court of Appeal in Suleiman v State of Western Australia which is at tab 16 of our appeal book. I am happy to take the Court to Pantorno, Parker and the like, but one of the –…

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 DL v The Queen

Details

AGLC: DL v The Queen [2018] HCATrans 83
Case: [2018] HCATrans 83
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by DL against a conviction for a sexual offence. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge erred in admitting evidence of the appellant's prior sexual conduct with the complainant, and whether the trial judge's directions to the jury regarding this evidence were adequate. The Court also considered whether the cumulative effect of any errors rendered the trial unfair.

The High Court held that the admission of the prior sexual conduct evidence was permissible under the relevant evidence legislation, as it was capable of having a bearing on the question of whether the complainant consented to the sexual activity in question. However, the Court found that the trial judge's directions to the jury on the use of this evidence were insufficient, failing to adequately explain the limited purpose for which it could be considered and the potential for prejudice. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders