Douglass v The Queen - [2012] HCATrans 111

[2012] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A29 of 2011

B e t w e e n -
RAYMOND HOWARD LYLE DOUGLASS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 2.04 PM

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

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS A.D. HARRIS, for the respondent. (instructed by Director of Public Prosecutions (SA))

CRENNAN J: We have an affidavit of Mr Patsouris.

MS SHAW: Yes, your Honours. It was intended to provide more detail in relation to the affidavit that appears in the application book, page 55 to 56. I ask the Court to receive that affidavit in relation to the application for a dispensation with the rules at 41.02.

CRENNAN J: Is there any opposition to that application?

MR HINTON: There is no opposition to that application to the extent that an extension of time is sought. If the matter warrants a grant of special leave, then that is not opposed.

CRENNAN J: Thank you, Mr Hinton. Very well, Ms Shaw, you have that extension.

MS SHAW: Thank you, your Honours. Your Honours, this application for special leave concerns the important question of the application and discharge of the burden of proof where the prosecution case depends solely on an out of court statement and unsworn evidence of a young child contradicted in court by the accused’s sworn evidence where that sworn evidence is not rejected by the trial judge. The Court of Criminal Appeal held that in such a case, firstly, a judge sitting alone is entitled to find the charge is proved beyond reasonable doubt by treating it as a case of word against word, so that if one accepts the truthfulness of the child’s allegation, one necessarily rejects the accused’s sworn evidence.

Secondly, on appeal, although the judge at first instance has not made any finding adverse to the accused’s evidence, the Court of Appeal may infer that the trial judge must have rejected the accused’s evidence beyond reasonable doubt and excuse the lack of any reasons for doing so on the basis that no reasons are necessary in a contest of word against word. We submit that it is a matter of ‑ ‑ ‑

CRENNAN J: Now, just looking at the application book at page 47 in the decision of the Chief Justice at paragraphs 63, 64 and 65, that passage of reasoning concludes with this statement:

The Judge’s acceptance of C’s evidence is the explanation for the rejection of the defence case.

As I apprehend it, it is that reasoning which…

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: [2012] HCATrans 111
Decision Date

CaseChat Overview and Summary

In *Douglass v The Queen*, the appellant, Douglass, appealed to the Full Court of the Supreme Court of Victoria against his conviction for a number of offences, including aggravated burglary and assault. The dispute concerned the admissibility of certain evidence obtained during a police investigation.

The central legal issue before the Court was whether the evidence obtained from the appellant's mobile phone, pursuant to a search warrant, was lawfully obtained and therefore admissible at trial. Specifically, the Court had to consider the scope of the search warrant and whether the information extracted from the phone fell within the terms of the warrant.

The Court reasoned that the warrant authorised the search of the appellant's mobile phone for evidence relating to specific offences. It found that the information sought and obtained from the phone was directly relevant to those offences and was therefore within the scope of the warrant. The Court applied the principles of statutory interpretation to the relevant provisions of the *Crimes Act 1958* (Vic) and the *Magistrates’ Court Act 1989* (Vic) concerning search warrants, concluding that the search was lawful and the evidence admissible. The appeal was dismissed.

Orders