NBM v The Queen - [2022] HCATrans 150

[2022] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A3 of 2022

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

GAGELER J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 9 SEPTEMBER 2022, AT 10.29 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR N.M. VADASZ appears for the applicant. (instructed by Vadasz Lawyers)

MR D. PETRACCARO, SC appears with MR W.M. SCOBIE for the respondent. (instructed by Director of Public Prosecutions (SA))

GAGELER J: Yes, Mr Vadasz.

MR VADASZ: Thank you, your Honour. This application raises two issues. The first relates to the directions as to inadequate reasons in relation to the reliability of the complainant’s evidence, and the second relates to the question of setting aside the verdict on the grounds that it was not supported by the evidence, and unreasonable.

I will proceed on the basis that the Court is familiar with the application book and the facts, but there are some core facts which I would seek to outline very briefly. The complainant was young when the offending occurred. It started when she was aged about nine. It stopped when she was aged around 11. Her clear evidence was that for a number of years from the age of about 11 or 12 until she was 17, she referred to a period of six years she had no memory of the offending.

When it came to the trial she advised that she had a clear memory of the details of the offending. The complainant had not, prior to cross‑examination, raised with any person that she had a loss of memory for a period of about six years. The question of the loss of memory arose during cross‑examination for the first time when the complainant said that she had blocked out the events and there were numerous and, in my respectful submission, unequivocal statements by the complainant that for six years she had no memory of any of the events that made up the offending at Bar.

No psychological evidence with respect to that was called by the prosecution, with the exception of a psychologist to whom she made the first report. That psychologist, Dr Brooks, agreed that the question a loss of memory, or an absence of memory, was not raised in the matter – not raised with her, with respect.

GAGELER J: Mr Vadasz, the way that you have just described the course of the evidence seems to be at odds with the characterisation given to it by Justice Doyle at the end of paragraph 125. Do you take issue with his characterisation of the evidence, that is, that she tended to use language that suggested not so much an absence of memory but rather a desire not to, or perhaps an…

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: [2022] HCATrans 150
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by NBM against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed NBM's appeal against conviction for a criminal offence. The central dispute concerned the admissibility of certain evidence during NBM's trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in contravention of a statutory provision, specifically section 138 of the *Evidence Act 1995* (NSW). This involved considering the proper application of the discretion afforded to a judge under section 138 to admit such evidence if the desirability of admitting it outweighed the undesirability of admitting evidence obtained in contravention of the law.

The Court reasoned that section 138 requires a balancing exercise, weighing various factors including the probative value of the evidence, the importance of the evidence, the nature of the contravention, and whether the contravention was deliberate or accidental. Gageler, Gordon and Gleeson JJ held that the trial judge had not erred in their application of this balancing exercise, finding that the judge had properly considered the relevant factors and that the admission of the evidence was not an error that warranted setting aside the conviction.

The appeal was dismissed.

Orders