PD v The Queen - [2014] HCATrans 209

[2014] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 2014

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

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 2.02 PM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS G.A. BASHIR and MS P.L. DWYER. (instructed by Uther Webster and Evans)

MS S.C. DOWLING, SC: Your Honours, I appear with MS S. HERBERT for the respondent. (instructed by Director of Public Prosecutions (NSW))

BELL J: Yes, Mr Game.

MR GAME: Thank you, your Honours. Shortly I will come back to the statutory provisions in the Victorian decision of Velkoski which was handed down at the very time we filed our reply, but had it been available when we put it on we would have submitted that there was a direct conflict between the States on the very question with respect to the very case, that is to say, PD is actually directly challenged in the judgment in Velkoski. But I will return to that in a moment because ‑ ‑ ‑

BELL J: Can I just raise with you this?

MR GAME: Yes.

BELL J: There would seem to be some difference as between New South Wales and Victoria in relation to tendency and coincidence evidence. The debate, much of it, would go, would it not, to the question of admissibility? That is not a matter with which we are concerned in this case, so the question really, Mr Game, if I can suggest it to you, is to focus on what is wrong with the conclusion of the Court of Criminal Appeal that the directions that were given were adequate in this case?

MR GAME: Quite, but admissibility in directions are inextricably linked and HML is a very good demonstration of that because use follows from admission and in fact in HML we were dragged into complaining about admission and it turned out to be a complete dead end because the actual submissions go to the very same question which is how do you use the evidence (a); and, (b), on a careful examination of Velkoski the ground that was upheld was the ground in relation to the directions and the directions are in very similar terms to here and they have the same fault, the same fault of inexorable circularity and a failure to appreciate the significance of time and sequence in relation to how you use tendency evidence.

So properly examined, Velkoski, which I was going to come to is, in our submission, directly on point and I will show why shortly. But I do want to take your Honours directly to show you what has happened in – I should also say in Velkoski the court said that the failure to object was…

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: [2014] HCATrans 209
Decision Date

CaseChat Overview and Summary

The case of PD v The Queen concerned an appeal to the High Court of Australia by the applicant, PD, against his conviction for a number of offences, including sexual offences. The appeal was heard by Bell and Gageler JJ.

The central legal issue before the High Court was whether the trial judge had erred in admitting certain evidence, specifically evidence of the applicant's prior sexual history. The applicant argued that this evidence was unfairly prejudicial and should not have been admitted, as it did not meet the criteria for admissibility under the relevant evidence legislation.

The High Court considered the principles governing the admission of evidence of prior sexual history, particularly the balance between its probative value and its potential to prejudice the jury. Their Honours analysed the specific circumstances of the case and the nature of the evidence in question, ultimately determining whether the trial judge had correctly applied the legal tests for admissibility.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders