JRW v The Queen - [2015] HCATrans 29

[2015] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M111 of 2014

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

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 2.21 PM

MR O.P. HOLDENSON, QC: May it please the Court, I appear in this matter on behalf of the applicant. (instructed by Galbally Rolfe)

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J: Yes, Mr Holdenson.

MR HOLDENSON: During the trial, just after the close of the Crown case, the learned trial judge directed an acquittal on charge 12. This application concerns the evidence which had been led by the Crown in support of charge 12. More particularly, the application concerns the admissibility of that evidence on charges 8 and 11 – the only two charges to go to the jury and the two charges upon which the jury convicted the applicant.

The application also concerns the directions to the jury with respect to the purpose for which the jury might use that evidence on charges 8 and 11 that had been led on charge 12. The evidence which had been led on charge 12 had been given by the sister of the complainant, S, and S said that she awoke and observed her father, the accused, together with the complainant. They were together on the couch in the lounge room and they were both in the nude, or naked. She described seeing the accused lying on top of the complainant, the complainant having her legs hanging out the sides of him – or coming out the sides of him.

Your Honours will see an extract of that evidence in the application book within the respondent’s summary of argument, as I recall, at page 110, your Honours will see in the middle of the page that evidence. Your Honours will see at about line 21 on the page, there is extracted on the page there a passage from the evidence of that witness, S, and it is precisely as I said.

What that witness saw and described can only be described as the perpetration of an indecent assault by the applicant upon the complainant. That was the only evidence led on charge 12 – a charge which alleged the offence of indecent assault. The complainant gave no evidence on that charge and, in fact, the learned prosecutor asked the complainant no question whatsoever concerning that act or event.

As I said, at the close of the Crown case, the learned trial judge directed an entry of a verdict of acquittal. Perhaps I should take your Honours to the ruling, or an extract of the ruling. It is to be found at page 64…

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 JRW v The Queen

Details

AGLC: JRW v The Queen [2015] HCATrans 29
Case: [2015] HCATrans 29
Decision Date

CaseChat Overview and Summary

The case of JRW v The Queen concerned an appeal to the High Court of Australia by the applicant, JRW, against his conviction for a number of offences. The dispute arose from the applicant's challenge to the admissibility of certain evidence during his trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in circumstances where the applicant's rights under the *Crimes Act 1914* (Cth) had been breached. Specifically, the court considered whether the admission of this evidence was contrary to the interests of justice, as contemplated by s 138 of the *Evidence Act 1995* (Cth).

Kiefel and Nettle JJ found that the trial judge had not erred in admitting the evidence. Their Honours reasoned that while there had been a breach of the applicant's rights, the evidence obtained was nonetheless admissible because its probative value outweighed the undesirability of admitting evidence obtained in contravention of the law. The court applied the principles established in *LPA v The Queen* and *R v Swaffield*, emphasising the balancing exercise required under s 138 of the *Evidence Act 1995* (Cth).

The appeal was dismissed.

Orders