MDP v The King - [2024] HCATrans 84

[2024] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2023

B e t w e e n -
MDP
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 DECEMBER 2024, AT 10.00 AM

MR S.C. HOLT, KC: May it please the Court, I appear with my learned friend MS S.J. HEDGE for the appellant. (instructed by Jasper Fogerty Lawyers)

MR G.J. CUMMINGS: May it please the Court, I appear with my junior MR S.J. MUIR for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

MS R.J. SHARP, KC: May it please the Court, I appear with my learned friend MR T.M. WOOD for the Commonwealth Director of Public Prosecutions, intervening. (instructed by Office of the Director of Public Prosecutions (Cth))

MR B.A. HATFIELD, SC: If it pleases the Court, I appear with my learned friend MS E.R. NICHOLSON for the Director of Public Prosecutions (NSW), intervening. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ: Thank you, Mr Hatfield. Mr Holt.

MR HOLT: May it please the Court, we have special leave in respect to ground 1 but need it in respect of grounds 2 to 4. I had assumed, I hope correctly, that the Court would simply deal with that in running, so to speak.

GAGELER CJ: Correct.

MR HOLT: Thank you. The appeal, as the Court knows, relates to a relevantly confined piece of evidence that was led in the trial which, for want of a better term, is referred to as the “bottom slapping evidence”. The essence of the error, in our respectful submission, is that the bottom slapping evidence was not admissible for any purpose, but that in particular it was not admissible for use as evidence of what is, by way of convenient shorthand, described as sexual interest evidence, which was the only basis upon which the jury was permitted by virtue of his Honour’s directions – the trial judge’s directions to the jury – to use the evidence.

Can I start with those directions which the Court will find at core appeal book page 35, and lines 4 to 29, which contain the entirety of the directions in respect of the bottom slapping evidence given by the complainant’s 11‑year‑old sister in this case. There are a couple of aspects of it, in light of the Crown’s submissions in this case, that really do need highlighting at this point.

The first is that, contrary to a submission that is made in writing by the respondent Crown, it is overwhelmingly clear that this was a direction to use the evidence, that permitted the use of the evidence for the purpose of sexual interest. That is, as line 10 says:

that conduct does demonstrate that he had a sexual interest in the complainant and was willing…

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 MDP v The King

Details

AGLC: MDP v The King [2024] HCATrans 84
Case: [2024] HCATrans 84
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *MDP v The King*. The appellant, MDP, was appealing a decision of the Supreme Court of Queensland, Court of Appeal, which had affirmed his conviction for a serious criminal offence. The central dispute concerned the admissibility of certain evidence during MDP's trial.

The High Court was required to determine whether the trial judge erred in admitting evidence that was obtained in circumstances where the appellant's rights under the *Criminal Law (Detention and Interrogation) Act 1995* (Qld) may have been infringed. Specifically, the court considered whether the evidence was obtained in contravention of the appellant's right to communicate with a lawyer or other person, and if so, whether it should have been excluded under the relevant provisions of the Act.

The Court reasoned that the admissibility of evidence obtained in contravention of statutory rights is a matter of statutory interpretation and judicial discretion. It applied the principles established in cases concerning the exclusion of improperly or illegally obtained evidence, balancing the need for effective law enforcement against the protection of individual rights. The Court considered the nature of the alleged contravention, the importance of the evidence, and the prejudice to the appellant if the evidence were admitted.

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

Orders