GBF v The Queen - [2020] HCATrans 140

[2020] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B18 of 2020

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

KIEFEL CJ
BELL J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 10 SEPTEMBER 2020, AT 9.45 AM

MR S.C. HOLT, QC: May it please the Court, I appear with my learned friend, MR M.J. JACKSON, for the appellant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC: May it please the Court, I appear with my learned friend, MS C.N. MARCO, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Thank you. The record will show that Justices Keane, Edelman and I are present in Brisbane, Justice Bell in Sydney and Justice Gordon in Melbourne and that the video connection is being connected through Courtroom 2 in Canberra. Yes, Mr Holt.

MR HOLT: Thank you, your Honour, and I think it is maybe clear to the Court, but our learned friends are present in the same room that we are also, in Brisbane.

KIEFEL CJ: Yes, I understood that, thank you.

MR HOLT: Thank you, your Honours. If it please the Court and as the Court will be aware this appeal relates to things that were said by the learned trial judge to the jury during the course of directions that his Honour gave to the jury about the way in which it would approach the acceptance or not of the complainant’s evidence. There are two matters at the outset which, in our respectful submission…..to be in any dispute as between the parties and, with respect, rightly so, and which lie at the heart of the nature of the appeal case that we make.

The first is that what the trial judge said was wrong and permitted reasoning that it was at odds with the right to silence and the accusatorial nature of the criminal trial. The second matter is that the risk in this particular case of such reasoning, that is reasoning at odds with the right to silence, was directed to the complainant’s evidence which was the critical evidence insofar as the Crown case was concerned and the acceptance or not of her reliability and credibility beyond reasonable doubt…..question in the case.

Our respectful submission is that those two matters being so, and in our submission they are and they appear to be agreed – they also appear to be consistent with the decision that was made by the Court of Appeal here – there was, in effect, no other option open than for this appeal to be allowed by the Court of Appeal. The reason why it was not allowed and the error that has manifested in that result is that the Court of Appeal…..two mistakes.

The first is that it failed, with respect,…

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: [2020] HCATrans 140
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by GBF against a conviction for murder. The dispute concerned the admissibility of certain evidence during GBF's trial, specifically evidence relating to alleged prior bad conduct by the appellant.

The central legal issue before the High Court was whether the trial judge erred in admitting evidence of GBF's prior alleged violent conduct towards the deceased, which was admitted as evidence of motive and to rebut a defence of accident. The Court was required to determine if this evidence was unfairly prejudicial to the appellant and therefore inadmissible under the rules of evidence, particularly concerning the propensity of an accused to commit a crime.

The High Court held that the admission of the evidence of prior bad conduct was an error. Their Honours reasoned that while such evidence may be relevant to motive, its prejudicial effect in suggesting a propensity to commit the crime outweighed its probative value. The Court applied the principle that evidence of prior misconduct should not be admitted if its primary purpose is to show that the accused is a person of bad character likely to have committed the offence charged. The admission of this evidence was found to have deprived the appellant of a fair trial.

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

Orders