Little (a Pseudonym) v The Queen - [2015] HCATrans 234

[2015] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2015

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

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 12.04 PM

MR C.B. BOYCE, QC: If the Court pleases, I appear on behalf of the applicant with my learned friend, MR M.J. GLEESON. (instructed by Michael J Gleeson & Associates Pty)

MR G.J.C. SILBERT, QC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Acting Solicitor for Public Prosecutions (Vic))

KIEFEL J: Yes, Mr Boyce.

MR BOYCE: Thank you, your Honours. Your Honours, both the majority and the minority below made a very important observation and that is to say that, generally speaking, whatever one might think about the propriety of doing so, it is legal in the sense of one is not criminally liable for engaging in an act of sexual penetration with a 17‑year‑old if you are older than that person and perhaps significantly older.

If that is so, then one would have thought that it is legal legitimately to attempt to persuade such a person to engage in such an act and although this term has an antiquity about it, one would assume also that it is legal to attempt to seduce such a person. In reality, the complainant’s version of events in this case recounts a story of seduction. There is no suggestion now of rape.

KIEFEL J: This is rather off point, though, is it not? This is simply a question of whether or not the complainant could be said to have been in the care, supervision or authority ‑ ‑ ‑

MR BOYCE: Yes, I will come to that directly. The case against the applicant now – it was not the case originally – is that the complainant was under the applicant’s authority and the sine qua non of that case is that he was the householder, that is to say, he had the power to control who came to the house – to issue instructions about that – and the power to dictate how persons in the house behaved.

KIEFEL J: Just to interrupt you at this point, is not the real question here whether this matter is a matter for the jury or whether it should be determined as an anterior question?

MR BOYCE: Our case, as your Honours would have picked up in the judgment of the court below, is that the trouble the court – or a trial court with this prosecution is to abuse its processes. This case should not get to a jury, in our respectful submission, and I will come to the reason why.

GORDON J: You do not challenge the test that is to be adopted by a…

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 Little (a Pseudonym) v The Queen

Details

AGLC: Little (a Pseudonym) v The Queen [2015] HCATrans 234
Case: [2015] HCATrans 234
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, referred to as Little, for the offence of sexual assault. The appeal was heard by Kiefel and Gordon JJ of the High Court of Australia. The central dispute revolved around the admissibility of certain evidence during the appellant's trial.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior sexual misconduct, which was alleged to be similar to the offence for which he was charged. Specifically, the court had to consider whether this evidence was relevant to establishing a course of conduct or a system, and if its probative value outweighed its prejudicial effect.

Their Honours found that the evidence of prior sexual misconduct was not admissible to prove the appellant's propensity to commit the offence charged. They reasoned that the similarities between the prior conduct and the alleged offence were not sufficiently striking to establish a system or course of conduct that would justify its admission. The court applied the principles governing the admissibility of evidence of prior misconduct, emphasizing that such evidence should not be admitted merely to show that the accused is a person of bad character or likely to have committed the offence. The prejudicial effect of the evidence was considered to outweigh its probative value.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders