R v Smith (a pseudonym) - [2022] HCATrans 40

[2022] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2021

B e t w e e n -
THE QUEEN
Applicant
and
SMITH (A PSEUDONYM)
Respondent
Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 10.26 AM

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR N.S. DRUMGOLD, SC appears with MS K.L. McCANN for the applicant. (instructed by Director of Public Prosecutions (ACT))

MR B.W. WALKER, SC appears with MS L. HUTCHINSON for the respondent. (instructed by Kamy Saeedi Law)

KEANE J: Yes, Mr Drumgold.

MR DRUMGOLD: Your Honours, it is our submission that it is in the interest of the administration of justice generally, and in the particular circumstances of this case, that special leave to appeal be granted. The laws surrounding the consideration of a Court of Appeal are outlined in M v The Queen and have been recently affirmed by this Court in Pell v The Queen.

The law, however, remains unclear with respect to two aspects of the role of the Court of Appeal. Firstly, in a Court of Appeal conducting an independent examination of the whole of the record to ask whether the verdict was open to the court at first instance, to what extent can an appeal court consider a differently nuanced case on appeal to the case as it was conducted at first instance, and, secondly, what obligations arise in relation to procedural fairness if an appeal court does consider a differently nuanced case.

EDELMAN J: Mr Drumgold, if recklessness was truly a live issue – either explicitly or implicitly – before the Court of Appeal, then the first issue would not arise, would it?

MR DRUMGOLD: That would be so. If it were explicitly, the question – it is a broader question of what “implicitly” means – in this case, as I will get to, it was disabused as being an issue. We say this is not strictly a visitation case. Of course, the Crown submits the majority erred in a substantial way in reaching their conclusions and consequently occasioned a significant injustice in this particular case.

However, we say this case exposes a significant point of principle, which has general application. That is not to say, of course, a visitation case cannot meet the criteria of exceptionality as observed in a number of cases. However, we submit that this case presents a suitable and proper vehicle for this Court to fully consider and give proper guidance to intermediate appellate courts on the principle, and practical application of the principles of M.

The appeal in the court below was upheld by a majority of two to one. The two majority judgments relied on significantly different reasonings. So, this appeal would require an examination of both majority judgments because…

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 Smith (a pseudonym) 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: [2022] HCATrans 40
Decision Date

CaseChat Overview and Summary

The applicant, the Director of Public Prosecutions (ACT), sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the quashing of the respondent's convictions by a majority of two to one in the Court of Appeal. The applicant argued that the Court of Appeal erred in its reasoning and that this error occasioned a significant injustice, warranting the grant of special leave to appeal.

The central legal issues before the High Court were twofold: first, the extent to which an appellate court can consider a differently nuanced case on appeal compared to the case presented at first instance, particularly when conducting an independent examination of the record; and second, the procedural fairness obligations that arise if an appellate court does consider such a differently nuanced case. The applicant contended that the Court of Appeal had quashed the convictions on a basis that was not properly canvassed at trial or on appeal, thereby raising significant points of principle regarding the application of the principles established in *M v The Queen* and affirmed in *Pell v The Queen*.

The applicant's primary submission was that the case was conducted at both trial and appeal on an "all or nothing" basis, meaning the Crown had to prove each element of the offence beyond reasonable doubt based on the complainant's evidence. The applicant argued that the Court of Appeal's majority judgments, which relied on differing reasoning, improperly introduced the issue of recklessness as a basis for quashing the convictions, despite it not being a live issue as presented by the parties. The applicant asserted that this approach departed from proper legal principle and that the Court of Appeal failed to afford procedural fairness by considering a case not run by the parties. The respondent, however, argued that recklessness was a fault element of the offence that remained in play throughout the proceedings and that the Court of Appeal's decision was open to it.

The High Court granted special leave to appeal.

Orders