FX v The Queen - [2022] HCATrans 16

[2022] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S72 of 2021

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

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 2.27 PM

KIEFEL CJ: I will announce the appearances of the parties.

MR P.D. LANGE appears for the applicant. (instructed by Hanna Legal)

MR D.T. KELL, SC appears with MS E.S. JONES for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Lange.

MR LANGE: Your Honours, the applicant requires an extension of time. I do not know whether that is opposed.

KIEFEL CJ: Is that opposed, Mr Kell?

MR KELL: It is not opposed, your Honour.

MR LANGE: I am grateful, thank you. Your Honours, before I turn to the directions which have been impugned, or sought to be impugned, before the Court of Criminal Appeal, might I briefly remind the Court about some of the background to the case to then…..into, as it were, where we submit the error was occasioned in the Court of Criminal Appeal. The Court will recall that the applicant was charged – along with his brother, GX – with having committed offences against the complainants but it was not suggested that the applicant was part of a joint enterprise to commit those offences with his brother. The offences really stood by themselves. Nonetheless, there was, as the Court will have seen, no objection to a joint trial and a joint trial, in fact, took place.

In the Court of Criminal Appeal it was submitted, however, that the directions given by the learned trial judge were erroneous because those directions failed to appreciate the distinction between the evidence given against this applicant as against his brother GX. Could I take your Honours, firstly, to the application book at page 29 where those directions appear? At about point 2 on the page, the first full paragraph, her Honour led into this topic by stating:

Not all of the evidence in this trial is admissible against both accused.

In the next sentences, in that paragraph, as well as in the following two paragraphs, her Honour then outlines discrete areas of evidence which were not admissible against one accused or the other. Then, relevantly, for the arguments before the Court of Criminal Appeal, the learned trial judge on page 20 of the summing‑up, page 30 of the application book, in the first four paragraphs, stated:

The other evidence though goes in jointly against both accused.

Her Honour extended that direction to the evidence given by each accused in the witness box without any limitation upon that evidence. In particular, one might take as an example of that evidence which would have been included in that latter direction, namely, the cross‑admissibility, was the so‑called…

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.

Continue reading FX v The Queen

Details

AGLC: FX v The Queen [2022] HCATrans 16
Case: [2022] HCATrans 16
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by FX against a conviction for sexual offences. The central dispute concerned the admissibility of certain evidence, specifically recordings of interviews with the complainant, which the appellant argued should have been excluded under s 137 of the *Uniform Evidence Law*. The appeal was heard by Kiefel CJ and Steward J.

The primary legal issue before the Court was whether the trial judge erred in admitting the interview recordings into evidence. This required the Court to determine whether the probative value of the recordings was outweighed by the danger of unfair prejudice to the appellant, as contemplated by s 137 of the *Uniform Evidence Law*. The Court also considered whether the trial judge had adequately discharged their duty to ensure a fair trial, particularly in light of the potentially prejudicial nature of the evidence.

In their joint judgment, Kiefel CJ and Steward J held that the trial judge had not erred in admitting the recordings. Their Honours reasoned that the probative value of the recordings lay in their ability to demonstrate the complainant's demeanour and consistency, which were relevant to assessing her credibility. While acknowledging the potential for unfair prejudice, the Court found that the trial judge had properly balanced the probative value against the prejudicial effect, and that appropriate directions to the jury had mitigated any undue prejudice. The Court emphasised that s 137 requires a careful weighing of competing interests, and that the trial judge's assessment in this instance was sound.

The appeal was dismissed.

Orders