DL v The Queen - [2018] HCATrans 22

[2018] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A38 of 2017

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

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 FEBRUARY 2018, AT 10.00 AM

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the appellant. (instructed by Town & Country Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR B. LODGE, for the respondent. (instructed by the Director of Public Prosecutions, (SA))

KIEFEL CJ: Yes, Mrs Shaw.

MS SHAW: If the Court pleases. We have provided to the Court an oral outline of our submissions.

KIEFEL CJ: Yes, Mrs Shaw.

MS SHAW: If the Court pleases, the appellant was tried before a judge sitting alone with the offence of persistent sexual exploitation of the complainant, MGF, over a period which spanned about 10 years. The particulars and the complainant’s evidence at trial involved allegations of different acts of sexual exploitation. The respondent accepts that the reasons for verdict had to make apparent the acts of sexual exploitation, amounting to sexual offences found proved beyond reasonable doubt. That is the actus reus of the section 50 offence of the Criminal Law ConsolidationAct (SA).

Although the reasons for verdict do not in terms identify, by reference to allegations made by the complainant, two or more sexual offences found proved the respondent contends that read holistically and fairly the reasons should be understood as constituting a finding beyond reasonable doubt that each sexual offence alleged occurred – albeit with a rejection or non‑acceptance of particular details surrounding those allegations such as time or place.

In our submission, the reasons cannot and should not be understood in that way because, as we will develop, firstly, the judge directed himself that he did not need to find all acts proved and stated a conclusion that he accepted the complainant reliable as to the core allegations. Secondly, the trial judge never identified the elements of sexual offences nor explained how, in relation to particular offences, the relevant evidence was such as to permit a finding beyond reasonable doubt, notwithstanding the accepted inconsistencies and improbabilities in the complainant’s account and the appellant’s sworn denials.

Indeed, we submit that the trial judge’s reasons suggest that he did not make findings as to particular allegations, but made an overall generalised finding to the effect that the complainant was reliable as to an unidentified core of his account. This was not a case where the judge could readily or at least without a fuller explanation, have acknowledged the apparent inaccuracies or implausibility of aspects of the complainant’s account relating to timing and circumstances but still have been satisfied beyond reasonable doubt that…

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: [2018] HCATrans 22
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 issue before the High Court was whether the trial judge erred in admitting evidence of the complainant's prior sexual history, which the appellant argued was irrelevant and prejudicial. The Court also considered whether the cumulative effect of certain directions given by the trial judge to the jury, particularly concerning the assessment of the complainant's evidence and the appellant's character, rendered the trial unfair.

The High Court held that the admission of the evidence of prior sexual history was an error, as it did not meet the threshold for relevance and was likely to have unfairly prejudiced the jury against the appellant. Furthermore, the Court found that the cumulative effect of the judge's directions, when viewed in light of the improperly admitted evidence, created a substantial risk that the jury's verdict was not based on a proper consideration of the evidence. The Court applied principles of evidence law concerning relevance and prejudice, as well as the overarching principle of a fair trial.

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

Orders