Gardiner v The Queen - [2019] HCATrans 164

[2019] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A4 of 2019

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

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 AUGUST 2019, AT 2.46 PM

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR E.G. BELPERIO, for the applicant. (instructed by Shaw and Henderson)

MR I.D. PRESS, SC: May it please the Court, I appear with MR P.A. LONGSON for the respondent. (instructed by Director of Public Prosecutions (SA))

GAGELER J: Thank you, Ms Shaw.

MS SHAW: If the Court pleases, we seek an extension of time in relation to the filing of the application and dispensation of the Rules. We rely on the affidavit of the applicant’s solicitor, Rachael Ebony Shaw, at application book 102 to 103 and we seek permission to rely on the affidavit of Stephen Ey, the applicant’s solicitor below, affirmed on 8 August 2019, and filed on 12 August 2019.

GAGELER J: Ms Shaw, I think your application for an extension of time is inevitably bound up with the merits of your application. You should proceed on that basis.

MS SHAW: Thank you, your Honour. Your Honours, this application for special leave concerns the obligations of a Court of Criminal Appeal in considering grounds of appeal under the first and third limbs of section 353(1) of the Criminal Law Consolidation Act 1953 (SA), which is reproduced at application book 101 where, under our section 7(4) of the Juries Act (SA), the decision of the trial judge is to be treated as a jury verdict for all purposes and therefore is not materially different to section 133 of the Criminal Procedure Act (NSW), considered by this Court in Filippou’s Case.

The applicant contends that the Court of Criminal Appeal failed to discharge its obligations under the first limb of section 353(1) in its consideration of whether the verdict was unreasonable and could not be supported by the evidence in two important respects. Those grounds are at application book 88.

Firstly, in relation to the applicant’s grounds of appeal to the Court of Criminal Appeal, which are in the application book at page 61, our first submission is that the Court of Criminal Appeal failed to consider and determine particular 1.2 of the amended grounds of appeal, that is, in relation to the evidence of the applicant’s intoxication, and, indeed failed to have regard to the trial judge’s findings in relation to his intoxication.

GAGELER J: Ms Shaw, the point put against you is that the level of intoxication was not the basis upon which that argument was put to the Court of Criminal Appeal. How do you deal with that?

MS SHAW: Your Honours, we seek leave to refer to the outline…

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.

Keep reading for free

Create a free CaseChat account to read Gardiner v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] HCATrans 164
Decision Date

CaseChat Overview and Summary

In *Gardiner v The Queen*, the High Court of Australia considered an appeal by the applicant, Gardiner, 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 involved determining whether the probative value of this evidence outweighed its prejudicial effect, and whether it was relevant to establishing the applicant's guilt of the offence charged.

The Court reasoned that the admission of evidence of prior convictions and bad character is generally prohibited unless it possesses a specific relevance to the offence being tried, beyond merely suggesting a propensity to commit crime. Gageler and Edelman JJ found that the evidence in question did not meet this threshold of relevance and was therefore improperly admitted. The Court held that the prejudicial effect of this evidence was substantial and likely to have unfairly influenced the jury's decision.

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

Orders