Foster v The Queen - [2015] HCATrans 276

[2015] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2015

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

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 12.15 PM

MR S.C. HOLT, QC: If the Court pleases, I appear for the applicant. (instructed by Peter Shields Lawyers)

MR G.P. CASH: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, Mr Holt.

MR HOLT: If the Court pleases, we need an extension of time in relation to this matter. I understand from my learned friend that that application is not opposed and I am happy to address it if your Honours please.

MR CASH: That is so, your Honours.

KIEFEL J: Yes, you have the extension.

MR HOLT: Thank you, your Honour, I am grateful. Your Honours, this application for special leave raises an important question in our submission, essentially relating to the legal meaning of the word “complaint” in the sense of a preliminary complaint.

KIEFEL J: Is it about the meaning of the word “complaint” or is it about how you communicate – how a person communicates the matter of complaint?

MR HOLT: The second is a subset of the first, in my respectful submission, so it is essentially about both. At its broadest level, it is about the question of the legal meaning of “complaint”. At its specifics ‑ ‑ ‑

GORDON J: Am I to read your submissions as conceding you do not need speech?

MR HOLT: Yes. For example, your Honour, if a complainant were to write down a complaint that would plainly be sufficient. If a complainant were to nod in response to a series of matters that were put that could, depending on the circumstances, be sufficient. So it would be wrong for me to submit that speech is absolutely required in all circumstances. That is, in my submission, plainly so, but that does not detract, in our submission, from the real question which emerges in this application which is what is a complaint for the purposes of preliminary complaint evidence, as it is called in Queensland.

KIEFEL J: Well, there is, of course, a distinction between saying absolutely nothing about an allegation of rape, on the one hand, and on the other being asked if you have been raped and then not responding orally, but showing, by gesture and facial expression, that that is in fact the case.

MR HOLT: Yes, and, your Honour, with respect, it is to the heart of the matter here. There are two components to the evidence which is set out at various places in the application book, but replicated in our submission at page 62 of the application book. There are two aspects to the complaint, or what was said…

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: [2015] HCATrans 276
Decision Date

CaseChat Overview and Summary

In *Foster v The Queen*, the High Court of Australia considered an appeal by the applicant, Foster, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This raised questions concerning the application of the rules of evidence, particularly concerning the admissibility of evidence that might be prejudicial to an accused.

The Court reasoned that the admission of evidence of prior convictions and bad character, which was not relevant to any issue in the trial, was an error. Such evidence risked unfairly prejudicing the jury against the applicant, leading to a miscarriage of justice. The Court applied the principle that evidence must be relevant to be admissible and that even relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice.

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

Orders