KRI v The Queen - [2013] HCATrans 55

[2013] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M92 of 2012

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

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH 2013, AT 2.44 PM

MR J.E. McLOUGHLIN: If the Court please, I appear for the applicant. (instructed by Michael Brugman)

MR T. GYORFFY, SC: If it please the Court, I appear with my learned friend, MR P.J. DOYLE, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J: Yes, Mr McLoughlin.

MR McLOUGHLIN: Your Honours, when the applicant – some 14 or 15 years after these offences were alleged to have been committed – stood trial, he had very few objective indisputable facts that he could rely on to support his denial of having committed the offences. One of those facts was the very long delay that had occurred before any of the complainants had made a complaint about the alleged conduct. Before the trial judge could direct the jury that they could take that delay into account in assessing the credibility of the complainants, she had to be satisfied that, in effect, there was sufficient evidence that their credibility was affected by the delay to justify it being taken into account.

Her Honour did give such a direction or warning. You can see that at page 76 of the application book at line 16. What her Honour did was to commence what she said to the jury on this issue – and I am dancing around the issue of whether it is a direction or a comment because ‑ ‑ ‑

KIEFEL J: Well, that is the essential point, though, is it not?

MR McLOUGHLIN: It is one of the points, your Honour, but in my submission, the case goes further than that. She began a bit earlier on that page at line 4, briefly summarising what the complainants had said to explain their reasons for not complaining earlier. That is a pretty broad summary; that is at appeal book 76, line 4. It essentially says that the complainants did not complain because they did not know what to do, were afraid, and in relation to one of them, he did not want to cause a rift between his friend – the son of the applicant – and his father, the applicant.

Her Honour then gave a general direction, a warning that delay could be taken into account. What then followed, culminating in the two paragraphs which are complained of, is a series of observations calculated to persuade the jury to discount delay as a matter affecting credibility. First of all her Honour ‑ ‑ ‑

KIEFEL J: You mean they may have had that effect, not that they were calculated?

MR McLOUGHLIN: Well, I am using “calculated” in the sense of having that effect, without imputing…

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.

Keep reading for free

Create a free CaseChat account to read KRI v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCATrans 55
Decision Date

CaseChat Overview and Summary

The case of KRI v The Queen concerned an appeal to the High Court of Australia. The appellant, KRI, sought to challenge a conviction for a serious criminal offence. The specific nature of the dispute revolved around the admissibility of certain evidence during the trial.

The central legal issue before the High Court was whether the evidence in question, which had been admitted at trial, ought to have been excluded on the grounds that it was obtained in contravention of a statutory provision. This raised questions about the proper application of exclusionary rules of evidence in criminal proceedings.

Kiefel and Gageler JJ considered the relevant statutory provisions and the principles governing the exclusion of evidence obtained in contravention of law. Their Honours analysed the scope and purpose of the statutory power under which the evidence was obtained, and the circumstances in which a court may exercise its discretion to exclude such evidence. The Court ultimately determined that the evidence was properly admitted at trial, and therefore dismissed the appeal.

Orders