R v Far - [2019] HCATrans 129

[2019] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B66 of 2018

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

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 9.55 AM

MR M.R. BYRNE, QC: May it please the Court, I appear for the applicant. (instructed by the Director of Public Prosecutions (Qld))

MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MS P. MORREAU, I appear for the respondent. (instructed by Legal Aid Queensland)

KIEFEL CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, the respondent faced a retrial in the District Court on 12 counts of a sexual nature. He had earlier been acquitted or had been acquitted at an earlier trial of two counts also of a sexual nature. That is what I have referred to in the application as the acquitted conduct. The submission is that this is not an unusual trial scenario that is faced in all jurisdictions across this country.

His counsel on the retrial made what is submitted to be a considered and rational decision to insist that the evidence of the acquitted conduct be led at the retrial. That evidence included, obviously, contradictory accounts of the conduct underlying those two previous counts. That contradictory nature gave clear potential to detract from a favourable assessment of the complainant’s credibility and reliability.

The jury were directed in the retrial twice, once at the beginning of the trial and once in the formal summing‑up, to the effect that they could not use the evidence of that conduct “against the defendant at all”. That is my emphasis on the last two words. They were directed, however, it could be used to assess the complainant’s credibility and that if it was not accepted by them that could bear on whether they accepted her evidence on the charges that were before them. Notably, they were not told they could use the reverse process of reasoning.

Counsel’s decision was, as I have submitted, rational. Of the evidence adduced at the earlier trial and acquittal on some charges, there was in reality a real risk that it would carry with it a recognition that he had not been acquitted on the charges before them. That is, that at least some of the earlier jury were satisfied of guilt beyond a reasonable doubt. By having the evidence of the earlier conduct admitted at trial in the way that it was admitted with the directions given, counsel achieved the objective of having evidence potentially damaging to the complainant’s credit and reliability before the jury without the risk of the downside of the jury knowing there had been an earlier trial.

Whilst it is not a conclusive fact to point to, I do point to the fact that there was an acquittal on the retrial of…

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 R v Far

Details

AGLC: R v Far [2019] HCATrans 129
Case: [2019] HCATrans 129
Decision Date

CaseChat Overview and Summary

The case of *R v Far* concerned an appeal to the High Court of Australia by the applicant, Far, against his conviction for a number of offences. The dispute centred on the admissibility of evidence obtained through a search of the applicant's mobile phone.

The High Court was required to determine whether the search of the applicant's mobile phone, conducted without a warrant, was lawful under the *Crimes Act 1914* (Cth) and, consequently, whether the evidence derived from that search should have been excluded from the trial. A key issue was the interpretation of the powers of a constable to search electronic devices under the Act.

The Court reasoned that the power to search a person under the *Crimes Act* did not extend to the contents of a mobile phone, as such a device was not a "thing" in the ordinary sense that could be searched. The judges applied the principle of statutory interpretation that powers conferred by statute must be exercised within their express terms, and that implied powers should not be readily assumed, particularly where they involve significant intrusions into privacy.

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

Orders