Previte v The Queen - [2005] HCATrans 792

[2005] HCATrans 792

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B41 of 2005

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

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 1.22 PM

MR B.G. DEVEREAUX: May it please the Court, I appear for the applicant. (instructed by Legal Aid Queensland)

MRS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Prosecutions (Queensland))

KIRBY J: Yes, Mr Devereaux.

MR DEVEREAUX: Your Honours, an order is sought that compliance with the time limit be dispensed with. I read in that regard the affidavit of Tim Harland of 17 May 2005. The delay was something like 11 days.

KIRBY J: Yes. Is there any objection to that being granted?

MRS CLARE: No, your Honour.

KIRBY J: Yes, very well.

MR DEVEREAUX: Thank you, your Honours. Your Honours, special leave should be granted in this case because it provides the opportunity for the Court to make plain what was said implicitly in Adami v The Queen (1959) 108 CLR 605 at 618. I will take your Honours to that later. Before comparison of handwriting becomes a matter for the jury, at least where objection is made to the evidence, the trial judge must first decide whether the disputed writing is presumptively attributable to the accused.

In this case the Court of Appeal of Queensland purportedly on the authority of Adami and the Evidence Act (Qld) section 59, which is similar to provisions in other jurisdictions, confirmed it is correct what the trial judge did which was to admit the evidence of the disputed handwriting and sample handwritings and the opinions of two experts without first considering and deciding that prima facie the disputed writing was attributable to the applicant.

The disputed writing in this case was a confession written on a picnic table in a public park. It was of course necessary for the Crown to connect that writing to the applicant before it could be admitted against him. The Crown sought to, as I have said, ultimately did lead the evidence of the writing, some samples and the expert’s opinions. May I before going further into what actually happened in this case take the Court to the decision in Adami v The Queen, perhaps in a little detail.

HEYDON J: Just before you do can I just ask you this, your point, basically, is that the evidence was not relevant, is that not so?

MR DEVEREAUX: Yes, it is.

HEYDON J: That is your point?

MR DEVEREAUX: That is so, your Honour.

HEYDON J: If one expert says the handwriting was that of the accused and another expert does not, that conflict does not make the evidence irrelevant.

MR DEVEREAUX: No, it does not, your Honour.

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.

Continue reading Previte v The Queen

Details

AGLC: Previte v The Queen [2005] HCATrans 792
Case: [2005] HCATrans 792
Decision Date

CaseChat Overview and Summary

The case of *Previte v The Queen* concerned an appeal by the applicant, Mr. Previte, against his conviction for armed robbery. The appeal was heard by Kirby and Heydon JJ of the Supreme Court of New South Wales. The central dispute revolved around the admissibility of certain evidence presented at trial and whether its admission had resulted in a miscarriage of justice.

The primary legal issue before the Court was whether the trial judge had erred in admitting evidence of a prior inconsistent statement made by a key prosecution witness. This involved considering the principles governing the use of such statements, particularly in circumstances where the witness was available to give evidence at trial but had recanted or altered their earlier account. The Court also had to determine if any error in admitting the evidence was so significant as to warrant setting aside the conviction.

The Court's reasoning focused on the proper application of the rules of evidence concerning prior inconsistent statements. It was held that such statements are generally admissible as evidence of the facts stated therein, provided certain conditions are met, including that the witness has been given an opportunity to explain or deny the inconsistency. The Court then assessed whether these conditions had been satisfied in the present case and, importantly, whether the admission of the evidence, even if erroneous, had prejudiced the applicant to the extent that a new trial was necessary. The Court considered the overall strength of the prosecution's case and the potential impact of the disputed evidence on the jury's verdict.

Ultimately, the Court found that while there may have been an arguable error in the admission of the evidence, it did not amount to a miscarriage of justice. Accordingly, the appeal against conviction was dismissed.

Orders