HBZ v The Queen - [2020] HCATrans 187

[2020] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B28 of 2020

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

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 2.00 PM

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

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

BELL J: Yes, Mr Holt.

MR HOLT: Yes, may it please the Court. We need leave to proceed out of time, which I understand is not opposed by the Crown.

BELL J: Is that so, Mr Heaton?

MR HEATON: Yes, your Honour.

BELL J: Yes, you have that leave, Mr Holt.

MR HOLT: May it please the Court. As the Court knows, this application concerns a question of construction, in truth, in our submission of section 14A of the Acts Interpretation Act (Qld), and in particular the statutory…..of the penal rule in subsection (2) of that section and it arises, as the Court knows, in the context of the question of the meaning of the word “choke”, which is the actus reus of the offence in section 315A of the Criminal Code.

Can I take the Court, if I may very briefly, to page 77 of the record book to the offence provision – to the construction provision itself, before turning quickly to the error that we allege occurred below. The Court will see there at the bottom of that page section 14A and again, in terms, this provision introduced, as the Court will know, in 1994, effectively in subsection (1) has a statutory formulation of the purposive rule and statutory construction of a particular formulation, but then critically in (2), in our submission, makes clear that subsection (1), that is the purposive rule, does not “create or extend . . . liability”. The remainder of that subsection appears to be something of a non sequitur. The key words, in our submission, are those before the comma.

We have not made reference in the outline explicitly to subsection (3) but might I draw the Court’s attention to it because it, in our respectful submission, does provide some useful context to the application of the provision and what it was intended to do in 1994. It notes, of course:

To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

Then the example is a useful one because it makes clear that the historical presumption effectively from a statutory construction basis in favour of a taxpayer was specifically intended to have been…

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 187
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of HBZ for a sexual offence. The central dispute revolved around the admissibility of certain evidence, specifically a recording of an interview between HBZ and police. The appeal was heard by Bell and Keane JJ of the Supreme Court of Victoria, Court of Appeal.

The primary legal issue before the Court was whether the recording of the police interview with HBZ was wrongly admitted into evidence at trial. This question necessitated an examination of the principles governing the admissibility of such recordings, particularly in light of potential unfair prejudice to the accused.

Bell and Keane JJ considered the circumstances surrounding the interview and the content of the recording. They applied the principles of evidence law, including the exclusionary rule concerning unfairly prejudicial evidence, to determine whether the jury's exposure to the recording had the potential to lead to an unfair verdict. The Court weighed the probative value of the recording against its prejudicial effect.

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

Orders