Foster v The King

The appellant, Foster, appealed his conviction for an indecent assault on an 11-year-old complainant. The appeal was heard by Grant CJ, Barr and Brownhill JJ. The dispute centred on whether a substantial miscarriage of justice had occurred during the trial due to the non-adduction of certain evidence and the trial judge's directions to the jury.

The legal issues before the Court of Appeal included whether a substantial miscarriage of justice had occurred because evidence regarding the complainant's Fetal Alcohol Spectrum Disorder (FASD) and its effects was not fully presented at trial. Additionally, the court considered whether the trial judge erred by failing to warn the jury about the complainant's potential unreliability and by not giving a *Murray* direction, which cautions juries when the prosecution relies heavily on a single witness.

The Court of Appeal found that the ground of appeal concerning the non-adduction of FASD evidence was not made out. While the complainant's aunt had given general evidence about the complainant's FASD and ADHD, the defence's attempt to tender a paediatric registrar's report detailing specific cognitive deficits was unsuccessful because the author was not available for cross-examination. The court accepted the trial judge's ruling that expert opinion evidence required the author's presence. The Court held that the appellant bore a heavy burden to demonstrate a fundamental failure in the trial process leading to an unjust conviction, and this burden was not met. The court also noted that the inquiry was objective, focusing on whether a miscarriage of justice occurred, not on counsel's specific actions or thoughts.