PEB v The Queen - [2013] HCATrans 135

[2013] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B9 of 2013

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

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON THURSDAY, 6 JUNE 2013, AT 12.20 PM

MR D.C. SHEPHERD: If it please the Court, I appear for the applicant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my learned friend, MS C.M. KELLY, for the respondent. (instructed by Director of Public Prosecutions)

BELL J: Thank you, Mr Shepherd.

MR SHEPHERD: It is a preliminary question of disposition of relevant time limits within which to file the application for special leave.

BELL J: Yes. Mr Moynihan, is there any difficulty with dispensing with the rules?

MR MOYNIHAN: No, your Honours.

BELL J: Yes.

MR SHEPHERD: Thank you, your Honour. In this case there are two issues really bearing consideration. The first is that there has been no real exposure of the reasons which led to the conclusions which were reached by the Court of Appeal and, secondly, what has been published, in my respectful submission, betrays that the task imposed on the Court of Appeal has not been properly undertaken. Neither the appellant nor this Court knows why the evidence given by the applicant and his wife could not raise a reasonable doubt about the allegations made. Similarly, no one can have any real understanding of how the evidence of the complainant in the face of a number of significant inconsistencies, which are set out in paragraph 48 of my outline and which I will not repeat here, and the attendant credibility problems, could satisfy a jury beyond a reasonable doubt that the applicant was guilty of two of the three charges which he faced.

KEANE J: Would it be said against you that the answer lies in the advantage the jury had of seeing your client, his wife and the complainant give evidence?

MR SHEPHERD: That was not a proposition upon which the Court of Appeal relied in coming to their conclusions. It is a proposition, or it is a principle, which might be applied when some difficulty may attend a consideration of the verdicts that were reached, but that was not a proposition that was relied upon in this instance. The failure to make any critical assessment of the evidence of the complainant and the evidence of the applicant and his wife is plain, in my respectful submission, in the judgment. Beyond a brief recitation of the defence evidence in

paragraph [12] of the judgment and a reference in paragraph [24] to “in the context of the defence evidence” and later to “competing considerations”, nothing was said at all about the applicant’s evidence and that of his wife. It is difficult ‑ ‑ ‑

BELL J: Mr…

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: [2013] HCATrans 135
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, PEB, for a number of offences, including aggravated sexual assault and assault occasioning actual bodily harm. The appellant was convicted following a trial in the District Court of New South Wales. The appeal was heard by Bell and Keane JJ of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the trial judge had erred in admitting certain evidence, specifically evidence of the appellant's prior sexual misconduct. The appellant argued that this evidence was unfairly prejudicial and should not have been admitted, as its probative value was outweighed by the risk of it being used by the jury to infer guilt of the offences charged, rather than for its limited admitted purpose.

Bell and Keane JJ considered the principles governing the admission of evidence of prior misconduct, particularly under the Uniform Evidence Law. They noted that such evidence is generally inadmissible to prove a person's character in order to show that they acted in conformity with that character on a particular occasion. However, they also acknowledged that such evidence may be admissible if it has a tendency to prove or disprove a fact in issue, provided its probative value outweighs any unfair prejudice. In this instance, the Court found that the evidence of prior sexual misconduct had a sufficient tendency to prove a fact in issue, namely the appellant's identity as the perpetrator of the offences charged, and that the trial judge had properly directed the jury on the limited use of this evidence.

The appeal was dismissed.

Orders