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…

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.

Continue reading Hill v The Queen

Details

AGLC: Hill v The Queen [2003] WASCA 177
Case: [2003] WASCA 177
Decision Date: 11 AUGUST 2003

CaseChat Overview and Summary

The matter of Hill v The Queen was heard in the High Court of Australia, involving the appellant's conviction for sexual offences. The crux of the appeal revolved around the admissibility of evidence and the manner in which the trial judge conducted the summing up to the jury. Specifically, the appellant challenged the trial judge's decision to allow cross-examination on a matter the appellant argued was irrelevant and potentially prejudicial, as well as the fairness of the summing up. The appellant contended that the trial judge's summing up was unbalanced, leading to a miscarriage of justice.

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