Ellis v The Queen [2011] HCATrans 64 - [2011] HCATrans 64

[2011] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M160 of 2010

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

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 10.50 AM

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR T. KASSIMATIS, for the appellant. (instructed by Mike Wardell)

MR T. GYORFFY: If it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions)

HEYDON J: Yes, Mr Priest.

MR PRIEST: If the Court pleases. Ordinarily, the character of an utterance as a consciousness of guilt lie, the fact that it is untrue will be shown by independent evidence. An obstacle standing in the way of that bald submission is Woon’s Case, which I will come to a little later, but, ordinarily, to show that a lie, a consciousness of guilt lie, is untrue, independent evidence is required. So let us take an example. Were a body to be found in premises and the accused was asked, “Have you ever been to those premises?” and the accused said, “Never”, yet fingerprints or DNA belonging to the person were found in the premises, that would be, on one view, cogent evidence that his denial of being at the premises was untrue and, subject to a proper Edwards direction being given to a jury, one would say in a case like that a jury would be entitled to use his utterance as a consciousness of guilt lie.

Let us take the situation where there was no fingerprint, no DNA in the premises and in the course of a police interview or in the course of giving evidence in a courtroom the assertion was put, “You have been at those premises, have you not?”, and the accused said, “No, I have never been to those premises”, the denial and its character as a lie, in those circumstances, could not be used, in our submission, as to consciousness of guilt, merely as to credit. The distinction is very important for this reason, that a consciousness of guilt lie can actually be used in support of the prosecution case and in proof of the prosecution case. It adds to the evidentiary pool. It is an implied admission of guilt. On the other hand, a denial which is disbelieved does not add to the evidentiary pool at all. All it is, in that circumstance, on one view, is neutral. So the distinction, in our submission, of course, is a very important one.

The vice of the way the trial judge left lies in this case and, indeed, it was not just lies, it was other conduct, but the vice of the way in which the judge left it in this case…

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: [2011] HCATrans 64
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Ellis, against the decision of the Queensland Court of Appeal. The applicant had been convicted of a number of offences, including armed robbery and unlawful use of a motor vehicle, and sentenced to a term of imprisonment. The core of the dispute revolved around the admissibility of certain evidence during the applicant's trial.

The primary legal issue before the High Court was whether the Queensland Court of Appeal had erred in upholding the trial judge's decision to admit evidence that the applicant argued was unfairly prejudicial and should have been excluded under the common law. Specifically, the applicant contended that the evidence in question, relating to his prior criminal history, was improperly admitted and had a significant negative impact on his ability to receive a fair trial.

In their reasons, Heydon and Bell JJ considered the principles governing the admissibility of evidence of prior criminal conduct. They noted that such evidence is generally inadmissible if its sole purpose is to show that the accused has a propensity to commit the crime charged. However, they also acknowledged that evidence of prior convictions may be admitted if it has a relevant probative value for a purpose other than to establish disposition, such as to prove identity, intent, or a common purpose. The Court ultimately granted special leave to appeal, indicating that there were arguable grounds for review concerning the application of these principles by the lower courts.

Orders