R v Dennis Bauer (a pseudonym) (No 2) - [2018] HCATrans 111

[2018] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2018

B e t w e e n -
THE QUEEN
Appellant
and
DENNIS BAUER (A PSEUDONYM) (NO 2)
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 JUNE 2018, AT 10.22 AM

MR B.F. KISSANE, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant. (instructed by Solicitor of Public Prosecutions (Vic))

MS C.A. BOSTON: May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the respondent. (instructed by Doogue + George)

KIEFEL CJ: Yes, Mr Kissane.

MR KISSANE: Your Honours will have received the appellant’s outline of oral argument. The first ground in relation to this appeal relates to the interpretation of section 381 of the Criminal Procedure Act (Vic), the relevant part of that section is set out in the Court of Appeal’s judgment at page 147 of the core appeal book.

What we say is that the Court below erred in its interpretation of section 381 and the error below that is complained of is the transposition of one of the relevant statutory factors from a consideration of willingness to give evidence and in effect elevating that to the necessity for the prosecution to establish an unwillingness to give evidence. If the Court looks at page 156 of the core appeal book, at line 20 and following, this is the area where ‑ ‑ ‑

KIEFEL CJ: Which paragraph number is that, Mr Kissane?

MR KISSANE: Paragraph number 42, your Honour, page 156, where the court said:

In our view, the prosecutor’s assertion from the Bar table that RC had a ‘preference’ not to give evidence could not satisfy the pre‑condition to admissibility found in s 381(1)(c). Furthermore, the judge was wrong to act on the prosecutor’s assertion from the Bar table. In the absence of any concession from the defence, a proper evidentiary basis was required to establish an absence of ‘willingness’ on the part of the complainant.

We say that it was not necessary for the prosecution to establish an absence of willingness. The test in section 381 is one of interests of justice and if one looks at section 381 what is said there is that:

The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to –
. . .
(c)the availability or willingness of the complainant to give further evidence -

Now, before the trial judge what occurred was that the learned prosecutor indicated to the trial judge that the complainant had a preference not to give evidence. That was referred to by the Court of Appeal but the evidence is also in the appellant’s book of further material…

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: [2018] HCATrans 111
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Director of Public Prosecutions (DPP) against the acquittal of Dennis Bauer (a pseudonym) on charges of murder. The DPP sought to challenge the decision of the trial judge, who had directed a verdict of not guilty on the basis that the evidence was insufficient to support a conviction. The central dispute concerned whether the evidence presented by the prosecution was capable of establishing, beyond reasonable doubt, that Mr Bauer had committed the murder.

The primary legal issue before the High Court was whether the trial judge had erred in law by directing a verdict of not guilty. This required the Court to determine whether there was any evidence upon which a reasonable jury, properly instructed, could have found Mr Bauer guilty of murder. The Court had to assess the sufficiency of the prosecution's evidence in light of the legal standard for a criminal conviction.

The High Court unanimously allowed the DPP's appeal, finding that the trial judge had erred in law. Their Honours held that the evidence, when viewed in its totality, was capable of supporting a conviction. The Court emphasised that a trial judge should only direct a verdict of not guilty if there is no evidence upon which a reasonable jury could convict. In this instance, the Court found that the evidence, including circumstantial evidence, was sufficient for a jury to consider and potentially find guilt.

Consequently, the High Court set aside the acquittal and remitted the matter to the Supreme Court of Queensland for a retrial.

Orders