R v Dennis Bauer (a pseudonym) (No 2) - [2017] HCATrans 269

[2017] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M100 of 2017

B e t w e e n -
THE QUEEN
Applicant
and
DENNIS BAUER (A PSEUDONYM) (NO 2)
Respondent
Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2017, AT 10.12 AM

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

MS C.A. BOSTON: May it please the Court, I appear on behalf of the respondent. (instructed by Doogue + George)

GAGELER J: Yes, Mr Kissane.

MR KISSANE: Thank you, your Honour. Your Honours will have noticed that in the court below there were four discrete grounds on which the respondent succeeded. The main reason we are here in this Court is grounds 2 and 3, although we say that the court below erred in relation to grounds 1 and 4 as well.

Ground 1, in short – it is a short point – was the construction of a statutory test that involved a discretion of the trial judge. There were a number of matters that were required to be taken into account in relation to that statutory test which related to the use of evidence that had been recorded at a previous trial.

What we say is that in relation to that test the court below transposed one of those factors, that is, the availability or willingness of the complainant to give evidence, and turned that into a requirement that the Crown establish an unwillingness to give evidence and a requirement that that unwillingness be established by evidence, albeit that in the trial court there was no application by defence counsel to cross‑examine the complainant whose evidence was to be pre‑recorded. The trial judge went through each of the factors.

What we say is that availability or willingness was simply one factor that the court was required to take into account. What the Court of Appeal has done is to transpose that into a requirement for the Crown to establish unwillingness. We say that the court below was wrong in relation to ground 1. We are on strong grounds there in relation to the statutory construction.

Ground 4 was a ground that related to complaint ‑ what is certainly known at common law as complaint evidence. It is evidence submitted under section 66 previous representations, in this case, of the complainant. The court below found that that evidence ought not to have been admitted on two bases: one, it ought to have been excluded under section 66; and, secondly, that section 137 required that it be excluded.

In our submission again the court below erred, and plainly so. The evidence in question, in our submission, was plainly fresh in the memory of the complainant witness, who gave evidence…

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.

Keep reading for free

Create a free CaseChat account to read R v Dennis Bauer (a pseudonym) (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] HCATrans 269
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Dennis Bauer (a pseudonym) (No 2) concerning the admissibility of evidence in a criminal trial. The central dispute revolved around whether certain evidence, obtained through an alleged breach of an implied undertaking of confidentiality, should have been excluded by the trial judge.

The High Court was required to determine whether the trial judge erred in admitting the evidence, specifically by failing to apply the correct legal test for the exclusion of evidence obtained in breach of an implied undertaking of confidentiality. This involved considering the scope of the implied undertaking and the principles governing the admissibility of evidence obtained in contravention of such undertakings.

The Court reasoned that the implied undertaking of confidentiality, which arises in certain legal contexts, is not absolute and its breach does not automatically render evidence inadmissible. Instead, the admissibility of such evidence is governed by the principles of fairness and the proper exercise of judicial discretion. The High Court affirmed that the trial judge had correctly applied the relevant legal principles in admitting the evidence, finding that its admission did not occasion a miscarriage of justice.

The appeal was dismissed, with the High Court upholding the decision of the lower court to admit the evidence in question.

Orders