GAX v The Queen - [2017] HCATrans 96

[2017] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2016

B e t w e e n -
GAX
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MAY 2017, AT 10.00 AM

MR M.J. COPLEY, QC: If the Court pleases, I appear on behalf of the appellant. (instructed by Macrossan & Amiet Solicitors)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MS S.J. FARNDEN, on behalf of the respondent. (instructed by the Director of Public Prosecutions (Qld))

BELL J: Yes, Mr Copley.

MR COPLEY: Your Honours, in this matter, at appeal book 288, at paragraph [23], her Honour Justice Atkinson noted that the first ground of appeal that the court was taxed with in the Court of Appeal was a complaint that the verdict of guilty on count 3 was unreasonable. At paragraph [25] on the same page, her Honour stated what the test was for a court of appeal confronted with a complaint that a verdict was unreasonable, drawing upon this Court’s statements in SKA v The Queen (2011) 243 CLR 400, at 20 to 22.

It is submitted that her Honour Justice Atkinson correctly identified that the task involved the consideration of the whole of the evidence in order to determine whether or not it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt on count 3. One must then, in my submission, turn to the end of the judgment to see her Honour’s conclusion, and that appears at page 293 of the record book, in paragraph [49], in the sentence which begins “It also shows that the verdict”.

My submission is that the word “It” is a reference to the evidence for count 3 because the sentence must be read with the preceding sentence. Her Honour there concluded that the verdict was not unreasonable, and then at paragraph [50] of the judgment, which is one sentence long, contains an evaluation of one aspect of the evidence, namely, the then adult complainant’s “cordial, even close, relationship with her father”, the appellant.

But beyond the sentence in [49] and paragraph [50], the contention is that there was no assessment of the sufficiency or of the quality of the evidence or of the capacity of the evidence relevant to count 3 to support the verdict. So, put simply, the correct test was stated at paragraph [25] but never applied to arrive at the conclusions at [49] and [50].

Now, the point is not, of course, made good by this but nevertheless I say that what her Honour Justice Atkinson did there could be contrasted with the manner in which the President approached the matter, but I can come back to that shortly.

This Court in BCM v The Queen (2013) 303 ALR 387

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: [2017] HCATrans 96
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by GAX against a conviction for a serious criminal offence. The central dispute concerned the admissibility of certain evidence during GAX's trial.

The High Court was required to determine whether the evidence in question was obtained in contravention of the *Broadcasting of Parliamentary Proceedings Act 1946* (Cth) and, if so, whether it should have been admitted into evidence under section 138 of the *Evidence Act 1995* (Cth). This involved an assessment of the balance between the public interest in the administration of justice and the public interest in the preservation of the privilege against disclosure of parliamentary proceedings.

The Court reasoned that the *Broadcasting of Parliamentary Proceedings Act* confers a privilege on parliamentary proceedings, which is not absolute but can be overridden in certain circumstances. Section 138 of the *Evidence Act* provides a framework for admitting unlawfully or improperly obtained evidence, requiring a balancing exercise. The Court considered the nature of the contravention, the importance of the evidence, and whether the desirability of admitting the evidence outweighs the undesirability of admitting it. The Court ultimately found that the evidence was improperly obtained and that its admission was not justified under section 138.

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

Orders