ML v The Queen - [2015] HCATrans 177

[2015] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S50 of 2015

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

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 2015, AT 11.07 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN. (instructed by Legal Aid NSW)

MS S.C. DOWLING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honours. The first two grounds of appeal concern evidence of an interview between the complainant and the police, more than two years before the trial, which was admitted into evidence pursuant to a statutory exception to the hearsay rule created in 2007. Your Honours appreciate that the Criminal Procedure Act, section 306V, creates a hearsay exception for that interview. It comes in as part of the evidence‑in‑chief of the complainant. The legislation requires that a general direction be given to the jury that they are not to draw any adverse inference from the procedure of receiving this video interview ‑ ‑ ‑

BELL J: This is section 306X.

MR ODGERS: Correct, your Honour, yes.

BELL J: It also requires that the judge warn the jury not to draw any inference adverse to the accused person, or give the evidence any greater or lesser weight because of the evidence being given in that way.

MR ODGERS: Yes.

BELL J: So if a hearsay direction were asked, pursuant to section 165 of the Evidence Act, in relation to the hearsay content of evidence given in this way, there would be an interesting question raised concerning the intersection of that provision and section 306X.

MR ODGERS: Yes – perhaps so, your Honour, but our response to the question would be that there is no conflict, that 306X is merely saying, look, just because you have this unusual procedure of seeing evidence through a video‑recorded interview, that fact alone is not something you really should use one way or the other in the proceedings.

It is an entirely different question whether or not in the particular circumstances of the case where it transpires that the person who engaged in an interview two and a half years later has no real memory of either the incident itself or the interview itself – whether that, in turn, requires something to be said to a jury. We say they are completely different fields of discourse.

Of course, that is where we are in terms of this application. It was a case where, when the complainant came to testify, she essentially had a very poor memory of both the offences - the alleged offences and the interview. Many of the questions asked in cross‑examination were answered with “I do…

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: [2015] HCATrans 177
Decision Date

CaseChat Overview and Summary

The case of ML v The Queen concerned an appeal to the Full Court of the Supreme Court of Victoria. The appellant, ML, was appealing against her conviction for a number of offences, including aggravated burglary, assault with intent to resist arrest, and criminal damage. The central dispute revolved around the admissibility of certain evidence obtained by police during the investigation of these offences.

The primary legal issue before the Court was whether the evidence obtained by police, specifically CCTV footage and statements made by the appellant, had been unlawfully obtained contrary to the *Charter of Human Rights and Responsibilities Act 2006* (Vic). The appellant argued that the police conduct in obtaining this evidence infringed her right to privacy and her right to be free from arbitrary interference with her person or property, thereby rendering the evidence inadmissible under section 138 of the *Evidence Act 2008* (Vic).

Bell and Gordon JJ considered the application of section 138 of the *Evidence Act 2008* (Vic), which requires a court to exclude improperly or illegally obtained evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting it. The Court analysed the specific circumstances of the evidence gathering, weighing the seriousness of the alleged contraventions of the *Charter* against the probative value of the evidence and the interests of justice. The Court ultimately found that while there may have been some technical breaches of the appellant's rights, the desirability of admitting the evidence, given its relevance to the charges, outweighed the undesirability of admitting it.

The appeal was dismissed, and the conviction upheld.

Orders