DL v The Queen - [2017] HCATrans 215

[2017] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A45 of 2016

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

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON TUESDAY, 24 OCTOBER 2017, AT 9.32 AM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (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 Director of Public Prosecutions (SA))

NETTLE J: We have had the argument in this previously and the matter was stood over pending the decisions in Chiro and Hamra. It was hoped at the time, I think, that those judgments, whichever way they went, would resolve this matter but it appears not to be the case. We wanted to ascertain that it is the position that there is only one ground of appeal, namely, ground 1, that the Court of Criminal Appeal erred in failing to hold that the judge’s reasons were inadequate in not identifying the underlying acts of sexual exploitation.

MS SHAW: We confirm that, your Honour.

NETTLE J: Thus, 1(b) and 1(c) are really particulars of or submissions in support of 1(a).

MS SHAW: That is correct.

NETTLE J: Thank you. Perhaps I could hear from Mr Bleby. Mr Bleby, in view of the decisions in Chiro and Hamra, is it still the Crown’s contention that the reasons in this matter given by the trial judge were adequate?

MR BLEBY: Yes, your Honour, it is.

NETTLE J: Thus, the matter will have to proceed to an appeal – to hearing?

MR BLEBY: Not, your Honour, if my submission that the matter does not raise a question of general importance is accepted.

NETTLE J: Yes. Perhaps we had better hear it, please.

MR BLEBY: Your Honours will recall on the previous occasion your Honour Justice Nettle asked my learned friend that what would be – that whether or not this matter would be dealt with by the result in Chiro and my friend said – and in Hamra – this is the transcript [2017] HCATrans 77, page 3 from line 31. My friend answered your Honour and said:

Yes, because DL is the same issue in Hamra. In Hamra his Honour holds you do not have to differentiate between two occasions, you can simply allege generalised illegitimate sexual conduct. In DL that is what the judge did and the Court of Appeal upheld it.

Your Honour then asked:

If we were to grant special leave in Hamra, there would be no need to grant special leave, at least for the time being, in DL,…

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: [2017] HCATrans 215
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, DL, sought to appeal a decision of the Court of Criminal Appeal of South Australia. The central dispute concerned the adequacy of the trial judge's reasons for conviction, specifically whether the judge had adequately identified the underlying acts of sexual exploitation that formed the basis of the conviction.

The legal issue before the High Court was whether the Court of Criminal Appeal erred in failing to hold that the trial judge's reasons were inadequate because they did not identify the specific underlying acts of sexual exploitation. The applicant contended that the judge's reasons were insufficient to establish the actus reus of the offences, particularly in light of recent High Court decisions in *Chiro* and *Hamra*, which emphasised the need for proof of discrete sexual offences. The respondent argued that the trial judge's reasons were adequate, and that the decisions in *Hamra* and *Chiro* supported the conclusion that a generalised acceptance of core allegations, where those allegations were sufficiently particularised, was sufficient.

The High Court considered the trial judge's reasons, which indicated a general acceptance of the complainant as a "reliable witness" regarding the "core allegations" of sexual assault. The judge had noted some unreliability in the complainant's estimates of age and dates, but ultimately rejected the applicant's evidence denying the alleged sexual conduct, finding that the applicant had sexually assaulted the complainant on numerous occasions over several years, primarily in the form of indecent assaults and mutual oral sexual intercourse. The respondent submitted that these findings, read in conjunction with the particularised allegations in the information, were sufficient to satisfy the requirements of *Hamra* and *Chiro*, and that the applicant's complaint was merely one of adequacy of reasons, which had been dealt with by the Court of Criminal Appeal. The applicant countered that the trial judge had not identified the specific actus reus, and that the decisions in *Chiro* and *Hamra* required proof of at least two discrete sexual offences, which the judge's reasons failed to establish.

Orders