GAX v The Queen - [2016] HCATrans 304

[2016] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B46 of 2016

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

FRENCH CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 DECEMBER 2016, AT 9.39 AM

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

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

FRENCH CJ: Yes, Mr Copley.

MR COPLEY: Your Honours, in this case, the applicant appealed to the Court of Appeal contending that the verdict of guilty on one count of indecently dealing with his daughter was unreasonable, and also contending that the acquittal on two other counts of indecent treatment was inconsistent with the conviction on that count. The position is that the first ground of appeal about unreasonable verdict failed, but the complaint is that it was not dealt with according to law.

Her Honour Justice Atkinson delivered the judgment for the majority in the Court of Appeal, and your Honours can see in the judgment at application book 37, at paragraph [25], that her Honour correctly stated the test for an unreasonable verdict concerning:

whether or not it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of count three –

FRENCH CJ: So your complaint is not that her Honour misstated the applicable principle but rather that she did not apply it.

MR COPLEY: She simply did not, in the result, apply the test to the facts. She did not, the complaint is, make an independent assessment of the evidence concerning its sufficiency and quality. She did not weigh the evidence. She did not assess its capacity to support the verdict. What occurred, if your Honours were to plot it through her judgment, was this. She set out the evidence that was relevant to count 3 from paragraphs [26] through to [34] and that involved ‑ ‑ ‑

FRENCH CJ: Do you say that is anything other than an adequate review of the evidence?

MR COPLEY: Well, it noted all the relevant aspects of the evidence; that is the case, yes. Unusually, the recitation of the complainant’s evidence began by, at paragraph [27], beginning at a point later in her evidence in‑chief than her evidence in‑chief actually started, and I can illustrate that point to your Honours by referring you to paragraph [29] where you see that her Honour records that the:

prosecutor interrupted the complainant when she started to say what she was told by asking her to only relate what she remembered.

It was important, in my submission, for the court to be mindful of how the…

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: [2016] HCATrans 304
Decision Date

CaseChat Overview and Summary

The case of GAX v The Queen concerned an appeal to the High Court of Australia following a conviction for a serious criminal offence. The appellant, GAX, sought to challenge the validity of that conviction.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence that was alleged to have been obtained in contravention of the appellant's rights. Specifically, the court had to consider the application of the exclusionary rule in Australian criminal law, which permits the exclusion of improperly or illegally obtained evidence, and the circumstances under which such a rule should be applied.

The High Court's reasoning focused on the principles governing the admission of evidence obtained in breach of a person's rights. The Court affirmed that while there is a discretion to exclude such evidence, this discretion is not unfettered. It requires a balancing of the probative value of the evidence against the unfairness to the accused that its admission might occasion, and the need to maintain public confidence in the administration of justice. The Court ultimately found that the evidence in question was properly admitted, and therefore the appeal was dismissed.

Orders