GJL v The Queen - [2022] HCATrans 81

[2022] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B51 of 2021

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

KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 5 MAY 2022, AT 10.30 AM

KEANE J: In accordance with the Court’s protocol for sitting remotely, I will announce the appearances for the parties.

MR S.C. HOLT, QC appears with MR J.J. UNDERWOOD for the applicant. (instructed by Mellick, Smith & Associates)

MR C.W. HEATON QC appears with MR D. NARDONE for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KEANE J: Yes, Mr Holt.

MR HOLT: May it please the Court. This application raises, in our submission, important issues concerning the effect of previous acquittals on retrials or subsequent trials. That topic, of course, in itself, is one which has a rich history in this Court, but it has not arisen in the context specifically that arises here.

What I would like to do first is to address very briefly why the facts, which were the subject of the earlier acquittals, were relevant in a trial of this kind because they are practically significant, on a day‑to‑day basis, in sexual offence cases of this kind.

There was, as the Court knows, a first trial of which there was a mix of, not unusually, acquittals and verdicts upon which the jury could not agree. Again, unsurprisingly in a case involving a single narrative of alleged sexual offending from a single witness, the facts that underpin those acquittals were, and will often be, those where the complainant’s reliability is best open to challenge.

That leads to significant potential difficulties in respect of a retrial of the kind that occurred here, on the charges upon which the jury were hung, because, on the one hand, one might say that all of those earlier facts - evidence that the complainant gives - often, as here, on a pre‑recorded basis - will be edited out. The difficulty for a defendant, as it was here, is that when one edits out those matters, one creates an artificially inflated view, potentially, of a complainant’s reliability and credibility.

The practical response is, as it was here, often the defence requests that those matters in fact be the subject of evidence, usually by the pre‑recording of all of the evidence of a complainant, but that the jury or here, a judge alone, be told that the matter was the subject of acquittals.

So, when conceived of in that way, in our respectful submission, the fact that this material came before the court at defence request, that is, the facts that underpin…..or acquittals and the fact that there was an agreement that those acquittals should be known by the trier of fact did give, contrary to Justice McMurdo’s reasons in the Court…

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: [2022] HCATrans 81
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, GJL, sought to challenge the decision of the Queensland Court of Appeal, which had upheld a conviction following a judge-alone trial. The central dispute concerned the legal effect of previous acquittals on subsequent trials, particularly in sexual offence cases involving a single complainant and multiple allegations. The applicant argued that the trial judge had failed to properly consider the significance of these prior acquittals, thereby creating an unfairly diminished view of the complainant's reliability.

The legal issues before the High Court involved determining the proper application of the principle of incontrovertibility in the context of retrials. Specifically, the court was asked to consider whether previous acquittals, particularly when admitted into evidence at the defence's request, should be treated as a definitive statement that the acquitted offences did not occur. This, in turn, raised questions about how such acquittals should inform the trier of fact's assessment of the complainant's credibility and reliability in relation to subsequent charges arising from the same narrative. The applicant contended that the acquittals provided a crucial legal context and factual relevance that the trial judge and the majority of the Court of Appeal had overlooked.

The applicant's submission was that the principle of incontrovertibility, as established in cases like *Washer* and *Storey*, requires that a prior acquittal be treated as a finding that the offence did not occur. This, it was argued, should have led the trial judge to view the complainant's evidence with greater scepticism, particularly concerning allegations that had previously resulted in acquittal. The applicant contended that the trial judge, by treating the acquittals as potentially meaning various things rather than as a definitive finding of non-occurrence, and by suggesting they were legally irrelevant because they were led at the defence's request, had erred. The respondent, conversely, argued that the incontrovertibility principle's scope is limited to preventing the Crown from relitigating acquitted charges and does not extend to using acquittals as a "sword" to assert that a complainant was untruthful, thereby creating an unfair advantage for the defence. The High Court granted special leave to appeal.

Orders