Lumley v The Queen - [2005] HCATrans 174

[2005] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2004

B e t w e e n -
CHRISTOPHER EDMONSTON FERNEAUX LUMLEY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.58 AM

MR B.W. WALKER, SC: If it please the Court, I appear for the applicant with my learned friend, MR J.R. HUNTER. (instructed by Boe Lawyers)

MR R.G. MARTIN, SC: May it please your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Walker.

MR WALKER: Your Honours, the issue raised, in our submission, is an issue in particular concerning the way in which there was an inappropriate assumption by the Court of Appeal of a function which ought to have been reserved to a jury; that is, a jury on a new trial.

If I may take your Honours to the sequence of events. The first thing to recall is that the jury here had asked a question about a matter of evidence in a way which, perhaps unusually but certainly well within the appropriate interaction between jury and judge at such a trial, focused attention on a question of fact in a way that meant thereafter, in the course of that criminal proceeding, including on appeal, it would be unsafe to speculate about whether the jury regarded that matter as important or not. The only safe way to proceed was to infer from that question being asked that it was an important matter for them.

That lifts this case at the intermediate appellate level out of the ordinary category of areas where it might be thought, in light of supposed new evidence, that a jury might have come to another conclusion had they had the evidence before them. Here, unusually, it is known from that account that for appellate purposes one would have to infer it mattered to them.

The question they asked was a question concerning expert medical physiological knowledge, no doubt for the purposes of being used in the course of their reasoning about a mass of evidence, most of which was not expert but was lay or narrative. Thus the question asked, “Can anal spasm be caused by anything other than penetration; for example, nerve effected?” is one which is in the heartland of the difference which can now be seen in the Court of Appeal between the general practitioner evidence, Dr Culliford, and the special evidence, Dr Lumley.

Now, Dr Lumley’s evidence in effect was dealt with by the Court of Appeal on the basis that all of this was a matter for the jury, which it may be conceded is true on a trial upon indictment, and that for that reason the issue of anal spasm, already having been raised at the trial, the jury determination on it…

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: [2005] HCATrans 174
Decision Date

CaseChat Overview and Summary

In *Lumley v The Queen*, the High Court of Australia considered an appeal by the applicant, Lumley, against his conviction for armed robbery. The dispute arose from the applicant's assertion that the trial judge had erred in admitting evidence of a prior conviction for a similar offence.

The central legal issue before the High Court was whether the evidence of the applicant's prior conviction was admissible under the tendency limb of section 97 of the *Uniform Evidence Law* (or equivalent legislation in the relevant jurisdiction). Specifically, the court had to determine if the evidence was relevant to prove a fact in issue in the current proceedings, namely that the applicant had a propensity to commit armed robberies, and if its probative value outweighed its prejudicial effect.

The High Court held that the evidence of the prior conviction was not admissible under the tendency limb. Their Honours reasoned that for evidence to be admissible under this limb, there must be a sufficient degree of relevance to establish a tendency to commit the offence charged. In this instance, the similarities between the prior offence and the current offence were not so striking as to demonstrate a specific tendency or pattern of behaviour that made it more probable that the applicant committed the offence charged. The court emphasised that the prejudicial effect of admitting evidence of a prior conviction, particularly for a similar offence, is significant and must be carefully weighed against its probative value.

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

Orders