Date of Hearing: 11 November 2021 Date of Judgment: 16 December 2021
B25/2021
ORDER
1.Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 8 May 2020 and, in its place, order that:
(a)the appeal be allowed;
(b)the appellant's convictions be set aside; and
(c)a new trial be had.
On appeal from the Supreme Court of Queensland
Representation
S J Keim SC with P F Richards for the appellant (instructed by Legal Aid Queensland)
C W Heaton QC with C W Wallis for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Orreal v The Queen
Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape – Where evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 ("impugned evidence") – Where impugned evidence irrelevant and inadmissible – Where Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety – Where Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury's assessment of reliability or credibility of complainant – Whether no substantial miscarriage of justice had actually occurred.
Words and phrases – "contested credibility", "jury's assessment of the reliability or credibility of the complainant", "miscarriage of justice", "natural limitations", "nature and effect of the error", "proviso", "substantial miscarriage of justice".
Criminal Code (Qld), s 668E(1A).
KIEFEL CJ AND KEANE J. After a trial in the District Court of Queensland, the appellant was convicted of three counts of indecent dealing with a child under 16 years and two counts of rape. In the course of his trial, evidence that both he and the complainant had tested positive for the presence of the herpes simplex virus type 1 ("HSV-1") was admitted ("the HSV-1 evidence"). It is not now disputed that the HSV-1 evidence had no probative value and was inadmissible. The prosecutor's address and the trial judge's summing up left the question of what use was to be made of the evidence to the jury. The trial judge did not direct the jury that it was to be disregarded.
A majority in the Court of Appeal of the Supreme Court of Queensland (Mullins JA and Bond J, McMurdo JA dissenting) held that a miscarriage of justice had occurred but that no substantial miscarriage of justice had actually occurred for the purposes of s 668E(1A) of the Criminal Code (Qld) and dismissed the appeal from…
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
AGLC
Orreal v The Queen [2021] HCA 44
Case
[2021] HCA 44
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of Queensland concerning a conviction for unlawfully and indecently dealing with a child under 16 years and rape. The central dispute revolved around the admission of evidence, referred to as "impugned evidence," which established that both the appellant and the complainant had tested positive for herpes simplex virus type 1 (HSV-1). The Court of Appeal had found a miscarriage of justice due to the trial judge's failure to direct the jury to disregard this evidence, but ultimately applied the proviso, concluding that the evidence could not have affected the jury's assessment of the complainant's reliability or credibility.
The legal issues before the High Court were whether the Court of Appeal erred in applying the proviso to the Criminal Code, specifically whether the impugned evidence, which was irrelevant and inadmissible, could not have caused a substantial miscarriage of justice. This required the Court to consider the nature and effect of the error, the contested credibility of the complainant, and the potential impact of the inadmissible evidence on the jury's deliberations, notwithstanding the prosecution's submission that the evidence was neutral and should not be given significant weight.
The High Court reasoned that the absence of a clear direction from the trial judge to disregard the impugned evidence left the jury at liberty to use their "life experience" to assess its significance. This invited the jury to employ the evidence as they saw fit, making it impossible for the Court of Appeal to determine whether guilt had been proved beyond a reasonable doubt at trial. Consequently, the High Court concluded that the Court of Appeal had erred in applying the proviso.
The appeal was allowed, the order of the Court of Appeal was set aside, and the appellant's convictions were quashed, with a new trial ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 8 May 2020 and, in its place, order that:
(a) the appeal be allowed;
(b) the appellant's convictions be set aside; and
(c) a new trial be had.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Bond J, with whom Mullins JA agreed, was to observe that, objectively assessed, there was an obvious forensic advantage to the defence in having the HSV-1 evidence admitted. Without it, the evidence of the complainant's sexual contact with the 15 year old boy could not have been elicited, and that evidence provided the defence with some basis for impugning the complainant's account and her credit. It may also be observed that the evidence carried risks for the defence, but weighing risks is part of the process leading to a forensic choice being made by counsel.The evidence relating to HSV-1 Before evidence relating to HSV-1 was given by a specialist paediatrician, the jury were informed that the prosecution and the appellant formally admitted three facts: (1) that, just over a week after the alleged incident, a swab was taken of the appellant's urethra and the result was negative for HSV-1; (2) that, a few days after that swab, the appellant's blood was tested for HSV-1 and it was positive; and (3) that it was not known whether the male child who performed oral sex on the complainant had or has HSV-1. The evidence that the complainant had a swab taken during her first medical examination and had tested positive for HSV‑1 was then adduced during the examination-in-chief of the specialist paediatrician. The evidence given by the specialist paediatrician included that HSV‑1 causes cold sores but is also commonly found as a genital infection. The virus remains in the body of the infected person, who becomes immune to it. The virus may come back at various times during the person's life and be "shed" for a few days, during which the person is infectious. HSV‑1 can be spread to the genitals by oral‑to‑genital spread and genital-to-genital spread from someone who is "shedding" the virus. All that could be said about the appellant was that at some point in the past he had been infected with HSV‑1 and was not shedding when the swab was taken and that it was not possible to say when he had acquired the virus. It was not possible to say whether he was shedding the virus when the alleged offences occurred. Likewise, it was not possible to say when the complainant acquired the virus or from whom she acquired it. As the virus was found in her genitals, transmission must have occurred through contact with her genitals.The prosecution address In the course of addressing the jury about the HSV-1 evidence, the prosecutor said that "[t]he herpes thing is not the lynchpin in this case. It's very neutral, really", and referred to the evidence of the specialist paediatrician. It was said that the jury might think the complainant was infected by contact with her boyfriend's mouth rather than the appellant's penis. Nevertheless, the prosecutor confirmed that "it's still a factor for you to take into account". "[T]he point", she said, "is that both of them do have the same virus." The prosecutor went on: "It's a sexually transmissible virus, and the allegation in here is that the defendant forced her to engage in sexual contact and conduct, and so it's a matter for you with your life experience what you make of that. But I don't suggest that you would really put any weight on it." The summing up
Decision
Reasons for decision
KIEFEL CJ
KEANE J
(dissent)
GORDON, STEWARD AND GLEESON JJ
(dissent)
Further, and contrary to the majority's reasoning, the absence of any clear direction from the trial judge to the jury to disregard the impugned evidence left the jury free to "make of that" what they would with the benefit of their "life experience", as the prosecutor had suggested the jury might do. In effect, the jury were invited to employ the impugned evidence as they saw fit. In those circumstances, it was not possible for the Court of Appeal to assess whether guilt was proved beyond reasonable doubt at trial.Conclusion The appeal must be allowed. The order of the Court of Appeal dated 8 May 2020 dismissing the appeal must be set aside and, in lieu thereof, there will be an order that the appellant's appeal to that Court be allowed, the appellant's convictions be set aside and a new trial be had.