Pahuja v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mrs. Pahuja, was convicted on 25 November 1988 of indecent assault contrary to section 56 of the Criminal Law Consolidation Act of South Australia, an offence alleged to have occurred on 10 February 1986. This conviction followed a prior trial and conviction which had been set aside on appeal. The applicant's subsequent appeal to the Court of Criminal Appeal of South Australia resulted in a majority decision dismissing the appeal against conviction, with one judge dissenting. However, the majority upheld the appeal against sentence, leading to the applicant's near-immediate release. The Crown had appealed the Court of Criminal Appeal's decision regarding sentence.

The central legal issue before the High Court was whether the Court of Criminal Appeal of South Australia erred in dismissing the appeal against conviction. Specifically, the Court was required to consider the application of the proviso contained within section 353 of the relevant Act by the majority of the Court of Criminal Appeal, which allowed them to dismiss the appeal against conviction despite finding grounds for appeal. The dissenting judge in the Court of Criminal Appeal would have upheld the appeal against conviction.

The applicant's legal team argued that the Court of Criminal Appeal had erred in its application of the proviso. The transcript indicates that the applicant was a 45-year-old medical practitioner at the time of the alleged offence, with a previously unblemished reputation and a long-standing practice in the outer suburban areas of Adelaide. Strong character evidence had been presented at trial. The majority of the Court of Criminal Appeal, comprising Justices White and Bollen, applied the proviso to dismiss the appeal against conviction, while Justice Prior dissented and would have allowed the appeal. The majority did, however, uphold the appeal against sentence.