Larry Cavanaugh - a Pseudonym v The Queen - [2022] HCATrans 129

[2022] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M3 of 2022

B e t w e e n -
LARRY CAVANAUGH (A PSEUDONYM)
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 12 AUGUST 2022, AT 10.28 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances.

MR P.J. MATTHEWS appears with MR P.J. SMALLWOOD for the applicant. (instructed by Slades & Parsons Criminal Law)

MS J.B. WARREN appears with MS B.J. GODING for the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER J: Mr Matthews.

MR MATTHEWS: May it please the Court. We submit, your Honours, that in dismissing the appeal in this matter the majority made what we contend, with respect, are significant legal errors, that is, errors in the process of analysis of the verdicts. Those errors are identifiable, we contend, by a comparison of the two sets of reasons, and we submit that the case raises questions of law of general application warranting special leave because the identification of those errors and the outlining of a correct approach for intermediate appellate courts considering the unsafe and unsatisfactory ground in cases of this kind would be of assistance.

When we say “cases of this kind” we mean trials involving sex offence allegations where the evidence is essentially oath on oath and where the accused faces a measure of disadvantage, forensic disadvantage, by reason of delay in complaint.

GAGELER J: Mr Matthews, we have been dealing with that sort of case since M v The Queen.

MR MATTHEWS: Yes.

GAGELER J: It is not a new category.

MR MATTHEWS: No, certainly not, and the principles, with respect, are well settled in M, and they are stated by the majority – by that, the Court will understand I am referring to Justice Walker with the President agreeing – they are stated at the outset of the judgment in uncontentious terms. But can I turn to perhaps the first error identified in order to further answer that question, your Honours, and that is the error identified in ground 2, that the majority failed to articulate a reasonable basis for:

the jury to be satisfied beyond reasonable doubt –

either that the evidence of the applicant:

was untruthful or unreliable –

or that:

the charges . . . had been proved.

This is the advance in understanding that we contend for, that is that in coming to a view about whether or not there was that basis, that reasonable basis, and formulating that basis it required, that entailed careful consideration of three matters in the context of this case: the alleged improbabilities and inconsistencies in the complainant’s account, the fact that the applicant’s evidence was unimpugned despite extended cross‑examination, and the forensic disadvantage he confronted which we submit had…

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: [2022] HCATrans 129
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Larry Cavanaugh (a pseudonym) against his conviction for a serious criminal offence. The dispute concerned the admissibility of certain evidence during the trial, which the appellant argued should have been excluded.

The central legal issue before the High Court was whether the evidence in question was obtained in contravention of the *Broadcasting of Parliamentary Proceedings Act 1946* (Cth) and, if so, whether its admission at trial was an error that necessitated setting aside the conviction. The Court had to determine the proper application of the exclusionary rule in circumstances where evidence is obtained in breach of statutory provisions.

The High Court reasoned that the *Broadcasting of Parliamentary Proceedings Act* does not create a statutory bar to the admissibility of evidence obtained in contravention of its provisions. Instead, the Court affirmed that the common law exclusionary rule, which permits a judge to exclude evidence obtained improperly or unfairly, remains the governing principle. The Court held that the admission of the evidence was not an error, as the trial judge had properly exercised their discretion under the common law to admit it, having regard to the circumstances of its obtaining and its probative value. The appeal was therefore dismissed.

Orders