Criminal Law—Rape—Defence of consent—Evidence of previous relationship of accused and prosecutrix—Evidence of previous charge of rape of prosecutrix for &hich accused had been acquitted—Whether admissible—Direction upon effect of acquittal—Sufficiency. (1977) 15 S.A.S.R. 501.
Decisions
Sept. 6. BARWICK C.J. This Court is unanimously of the opinion that special leave to appeal should be granted. The question of the admissibility raised by the applicant is of general importance in the administration of the criminal law. (at p439)
2. The question is whether evidence should have been admitted through the testimony of the prosecutrix, that she had been raped by the accused in November 1975. (at p439)
3. Her statement, admitted into evidence, was that she did not consent to intercourse with him which admittedly then took place, and that she indicated in an unmistakable fashion her opposition to that intercourse. It was in respect of that occurrence that the accused was charged at the instance of the prosecutrix and in respect of which upon his trial he was acquitted. (at p439)
4. The prosecutrix was allowed to give evidence at this trial that she had given evidence at the former trial of her non-consent to the intercourse and of the manner of her opposition to it. (at p439)
5. In summing up the learned trial judge told the jury in effect that they should take no inference from this evidence either for or against either party, and he did not emphasize the effect of the acquittal of the accused of the former charge. (at p439)
6. A majority of the Court is of the opinion that none of the above evidence of the prosecutrix was admissible and that there must be a new trial. (at p439)
7. The Court is unanimously of the opinion that the summing up of the learned trial judge in this respect was erroneous in a material respect. (at p439)
8. Other questions were raised in the argument before this Court. Detailed reasons for the conclusion I have expressed, both on behalf of the majority of the Court and in other respects on behalf of the whole Court, as well as for the views of the Justices on these other matters will need to be reduced to writing. (at p439)
9. Meantime the Court should, in the opinion of the Court, indicate its conclusions as to the inadmissibility of the evidence to which I have referred and as to the propriety of the aspect of the summing up to which I have referred, and should set aside the order of the Court of Criminal Appeal of South Australia and in lieu thereof allow the appeal to that court, set aside the conviction of the appellant on counts 3 and 4 of the indictment and order a new trial on those counts. (at p439)
Dec. 22. The following further reasons for judgment were published:…
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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AGLC
Garrett v The Queen [1977] HCA 67
Case
[1977] HCA 67
Decision Date
CaseChat Overview and Summary
The case of *Garrett v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Garrett, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal raised significant questions regarding the admissibility of evidence and the proper application of the law relating to self-defence.
The central legal issues before the High Court were whether the trial judge had erred in admitting certain evidence, specifically a confession made by the appellant, and whether the jury had been adequately and correctly directed on the defence of self-defence. The admissibility of the confession was challenged on the grounds that it was obtained in circumstances that rendered it involuntary or otherwise unfair to admit. The direction on self-defence was questioned in relation to the onus of proof and the jury's understanding of the relevant legal tests.
The High Court, in its judgment, considered the principles governing the admissibility of confessions, particularly the requirement that they be voluntary and not obtained by unfair means. It also examined the elements of self-defence as established in Australian criminal law, including the need for an honest and reasonable belief in the necessity of using force. The Court's reasoning involved a careful analysis of the evidence presented at trial and the legal framework applicable to both the confession and the defence.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial. This outcome was based on the finding that the trial judge had erred in admitting the confession and in the directions given to the jury concerning self-defence, thereby occasioning a miscarriage of justice.