McPhillamy v The Queen - [2018] HCATrans 141

[2018] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S121 of 2018

B e t w e e n -
RICHARD JOHN McPHILLAMY
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 AUGUST 2018, AT 10.00 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friend, MR S.J BUCHEN. (instructed by Proctor & Associates)

MR L.A. BABB, SC: May it please the Court, I appear for the respondent with my learned friends, MS K.N. SHEAD, SC and MS B.K. BAKER. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honours. Your Honours will see from the outline that you have been handed, I hope, that we have made a slight change to the name of the appellant. We have been told we needed to stick the middle name in, and I have been asked to draw that to your Honours’ attention.

Your Honours, if I might just follow the course of the outline; because there were no reasons given by the trial judge on the question of whether or not the tendency evidence in this case was admissible, the focus of the argument in the Court of Criminal Appeal and the focus of the argument in this Court is on the use of the evidence at the trial to prove a tendency to act in a particular way, and if I can just remind your Honours, you are very familiar with section 97, but I will just remind your Honours of 97 and then take you to 101. Section 97 is found in the joint book of authorities volume 1 at tab 3.

I will not read any of it out but to remind your Honours that it is what might be called a use rule, that if the evidence is sought to be used in a particular way then it is not admissible for that use unless certain requirements are met including obviously, importantly, that paragraph (b) the court thinks either by itself or having regard to other evidence that the evidence has significant probative value.

Now, if I could just take you to section 101(2), which we will be coming to in due course in the argument. It is framed somewhat differently. It does not talk about admissibility. It just provides, subsection (2) - of course, it only applies in criminal proceedings and only applies to evidence adduced by the prosecution.

But tendency evidence about a defendant - and I just interpose here that tendency evidence is defined in the dictionary to the Act to mean evidence to which section 97 applies. I will not take you to that dictionary definition but your Honours will find that - it is in the materials, I think, at page 16 - evidence…

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 McPhillamy v The Queen

Details

AGLC: McPhillamy v The Queen [2018] HCATrans 141
Case: [2018] HCATrans 141
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by McPhillamy against his conviction for the offence of sexual intercourse without consent. The dispute concerned the interpretation and application of the defence of honest and reasonable belief in consent under section 42 of the *Crimes Act 1900* (NSW).

The central legal issue before the High Court was whether the jury, in convicting McPhillamy, had necessarily found that his belief in consent was not honestly held, or alternatively, that if it was honestly held, it was not reasonably held. The Court also had to determine the proper direction to be given to a jury regarding the elements of the defence of honest and reasonable belief in consent.

The High Court held that the jury's verdict of guilty did not necessarily mean that they found the belief in consent was not honestly held. Instead, the jury could have found that while the belief was honestly held, it was not reasonably held. The Court clarified that the defence under section 42 requires the belief in consent to be both honestly and reasonably held. The reasonableness of the belief is to be assessed by reference to the circumstances as the accused honestly believed them to be, and the question is whether a reasonable person in the position of the accused, holding those beliefs, would have believed that the complainant consented. The Court found that the trial judge's directions to the jury on this defence were inadequate.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders