JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: HILL -v- THE QUEEN [2003] WASCA 177
CORAM: MURRAY J
WHEELER J
MCLURE J
HEARD: 20 MAY 2003
DELIVERED : 11 AUGUST 2003
FILE NO/S: CCA 195 of 2002
BETWEEN: CLAUDE ROBERT HILL
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Section 36BC of the Evidence Act - Leave to question complainant in relation to a sexual offence - Relevance of cross-examination - Section 611B of the Criminal Code - Admissibility of statement under s 107 of Evidence Act - Fairness and balance of summing up
Legislation:
Acts Amendment (Sexual Assaults) Act 1985 (WA)
Criminal Code (WA), s 611B, s 689(1)
Criminal Law (Procedure) Amendment Act 2002 (WA)
Evidence Act 1906 (WA), s 36B, s 36BA, s 36BC, s 36BD, s 107
Justices Act 1902 (WA), s 69(2), s 69(4)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: Mr D S Hunter
Respondent: Mr M Mischin & Ms F A Cain
Solicitors:
Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Avis v The Queen [2002] WASCA 250
Bannister v The Queen (1993) 10 WAR 484
Birch v The Queen (1994) 12 WAR 292
Cornelius & Briggs v The Queen (1988) 34 A Crim R 49
Domican v The Queen (1992) 173 CLR 555
Doughty v The Queen [2002] WASCA 238
Hoy & Ors v The Queen [2002] WASCA 275
Jones v The Queen (1997) 191 CLR 439
Kilby v The Queen (1973) 129 CLR 460
Murray v The Queen (2002) 189 ALR 40
Narkle v The Queen (2001) 23 WAR 468
Natta v Canham (1991) 32 FCR 282
R v Chandu Nagrecha [1997] 2 Cr App R 401
R v Funderburk [1990] 1 WLR 587
R v Lawrence [2001] QCA 441
RPS v The Queen (2000) 199 CLR 620
Stack v The Queen [2002] WASCA 338
The Queen's Case (1820) Brod & Bing 284; 129 ER 976
Case(s) also cited:
Boonudnoon v The Queen [2002] WASCA 313
Galea v The Queen (1989) 1 WAR 450
Liberato v The Queen (1985) 159 CLR 507
Palmer v The Queen (1998) 193 CLR 1
R v Horan [1951] VLR 249
R v Nalberski (1989) 44 A Crim R 434
R v Schmahl [1965] VR 745
MURRAY J: I have had the advantage of reading in draft the reasons for decision to be delivered by McLure J. I am relieved of the need to do more than shortly express my views where I would differ from her Honour.
As to ground 1 and the question of cross‑examination of the complainant during the process of pre-recording her evidence, leave was required under the Evidence Act1906 (WA), s 36BC. I agree with McLure J when her Honour concludes that leave could not be granted under the section because the Court could not be satisfied that what was sought to be adduced…
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- AGLC
- Hill v The Queen [2003] WASCA 177
- Case
- [2003] WASCA 177
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, whether the trial judge erred in permitting cross-examination of the complainant regarding a matter deemed irrelevant and prejudicial under section 36BC of the Evidence Act. Secondly, whether the trial judge's summing up to the jury was fair and balanced, in accordance with the principles set out in section 611B of the Criminal Code. The court was also asked to consider the admissibility of a statement under section 107 of the Evidence Act and its impact on the jury's deliberations.
In examining the first issue, the court noted that section 36BC of the Evidence Act permits the court to limit cross-examination on matters that are not of substantial relevance. The court found that the trial judge had exercised a degree of discretion in allowing the cross-examination, which was aimed at discrediting the complainant. However, the court determined that the trial judge had not sufficiently weighed the potential prejudice against the probative value of the cross-examination, thus constituting an error. Regarding the summing up, the court held that the trial judge had not adequately balanced the considerations of fairness and the need to avoid influencing the jury unduly. This imbalance, according to the court, had the potential to affect the outcome of the trial.
Ultimately, the High Court allowed the appeal, quashed the appellant's convictions, and ordered a retrial. The court's decision underscored the importance of judicial discretion in balancing the rights of the accused with the need to ensure a fair trial. The court also highlighted the necessity for trial judges to provide a balanced summing up to the jury, avoiding any undue influence that might compromise the fairness of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: WHEELER J
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