MBJ v The Queen - [2012] HCATrans 109

[2012] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A16 of 2011

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

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 12.55 PM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR S.J. DOYLE, for the applicant. (instructed by Lempriere Abbott McLeod)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MR K.G. LESSES, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Thank you.

MS SHAW: This application raises a matter of public importance. In relation to the jury directions required, where the prosecution rely on similar fact evidence between complainants within the same family, concoction is raised as an issue and the sexual offence that is critical to cross‑admissibility is one of 14 diverse acts in relation to a charge of persistent sexual exploitation. The prosecution case at trial relied upon the improbability of similar lies, given the similarity between the accounts of multiple complainants in the same family in relation to violent and sexual offences. The issue of concoction or collusion with the complainant’s mother was part of the defence case, yet no direction ‑ ‑ ‑

BELL J: Can I just interrupt you to understand this. As I read the respondent’s submissions, concoction was not put to the witnesses in the Crown case. Is that the position?

MS SHAW: That is so, your Honour.

BELL J: And no direction was sought by trial counsel of the sort about which you now complain of a miscarriage by reason of the absence of the direction?

MS SHAW: That is so.

BELL J: Well, that presents some difficulty, does it not, on your concoction ground?

MS SHAW: With respect, we submit, no, because the way in which the Crown pitched its case was based upon the improbability that these three children would all tell lies, and the learned trial judge emphasised that case in his summing‑up to the jury when he reminded the jury of the prosecution cross‑examination of the accused, at page 40, and reminded the jury of the prosecution address where the prosecution relied upon the unlikelihood of concoction. In other words, the way in which her Honour Justice Vanstone, who delivered the judgment for the court, dealt with the issue of concoction was to acknowledge that it was an important part of the defence case. In particular, her Honour, at application book 89, paragraph 39, referred to the appellant – this is at line 42:

when the appellant was interviewed by police, he immediately and forcefully raised the suggestion that the allegations were a result of his children’s collusion and concoction with his estranged…

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: [2012] HCATrans 109
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by MBJ against a decision of the Court of Appeal of the Supreme Court of Victoria. The appeal concerned the admissibility of certain evidence in a criminal trial.

The central legal issue before the High Court was whether the admission of evidence obtained through a covert recording, made by a police informant, was lawful under the *Crimes Act 1958* (Vic) and, if not, whether its admission nonetheless occasioned a substantial miscarriage of justice. The Court was required to consider the application of s 464H of the *Crimes Act 1958* (Vic) concerning the recording of interviews with suspects.

The High Court held that the recording in question was not made in accordance with the requirements of s 464H of the *Crimes Act 1958* (Vic). However, the Court found that the admission of the evidence did not occasion a substantial miscarriage of justice. This was because the jury had been given a strong warning about the unreliability of the evidence, and the other evidence against the appellant was overwhelming. The Court therefore dismissed the appeal.

Orders