RH v The Queen - [2014] HCATrans 282

[2014] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S146 of 2014

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

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 10.15 AM

MR M. THANGARAJ, SC: Your Honours, I appear with MR R.J. STEWARD. (instructed by Prime Lawyers)

MR L.A. BABB, SC: I appear for the respondent, thank you, your Honour. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honours, we need an extension of time.

FRENCH CJ: Is that opposed?

MR BABB: Not opposed.

FRENCH CJ: Yes.

MR THANGARAJ: Thank you, your Honour. What I propose to address your Honours firstly on is the differences between New South Wales and Victoria; secondly, the problems and the unfairness caused in this trial from the what we say incorrect tendency ruling; and, finally, errors of law and why leave ought be granted.

Could I start by taking your Honours to Velkoski which is in our bundle of authorities. Velkoski was a case involving multiple complainants. There were three complainants under the age of 16. If I could start by taking your Honours to paragraph 22, which is on page 6 of that book, the fourth line down:

The tendency notice . . . conflated the tendency evidence and the conclusions to be drawn . . . The notice should not assert and the jury must not be instructed (as it was in this case) that the tendency is that the accused had a sexual interest in the complainants and that he acted upon his sexual interest by engaging in the sexual acts alleged by the complainants.

The court deals with that finally again later but if that is correct then the second tendency that was relied upon in our case ought not have been left to the jury. So that is the first point of difference between New South Wales and Victoria. If I could take your Honours more substantively now to paragraphs 33 and 34 on the following page of the book, after dealing with some legislative reform, the court said at the end of the first line:

Under the law as it stood in this State prior to the enactment of the Evidence Act, and under the Evidence Act itself, the entire subject broadly encompassed by the term ‘similar fact evidence’, has become exceedingly complex and extraordinarily difficult to apply. The situation is not helped when, as will be demonstrated, appellate courts fail to speak with one voice on this topic.
34 Currently there are undoubted differences between the decisions of this Court and the New South Wales Court of Criminal Appeal as to whether similarity of features need be present in order for evidence to be admissible as tendency evidence.

If I could ask your Honours to go…

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 RH v The Queen

Details

AGLC: RH v The Queen [2014] HCATrans 282
Case: [2014] HCATrans 282
Decision Date

CaseChat Overview and Summary

The case of RH v The Queen concerned an appeal to the High Court of Australia following a conviction for sexual offences. The appellant, RH, had been found guilty by a jury of several counts of sexual assault and unlawful sexual intercourse. The appeal raised significant questions regarding the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence of the appellant's prior sexual history, and whether the directions given to the jury regarding this evidence were adequate. Specifically, the court had to consider the application of the rules of evidence concerning propensity evidence and the potential for such evidence to prejudice the jury against the accused. The appellant argued that the admission of this evidence, and the way it was presented to the jury, had deprived him of a fair trial.

The High Court, in a joint judgment, allowed the appeal and quashed the conviction. Their Honours found that the evidence of prior sexual history was improperly admitted, as it did not meet the strict criteria for admissibility under the relevant evidence legislation. The court reasoned that the prejudicial effect of this evidence substantially outweighed its probative value, and that the directions provided to the jury were insufficient to mitigate this prejudice. The principles applied centred on the fundamental right to a fair trial and the need to prevent convictions based on character rather than proven facts.

Consequently, the High Court ordered that the conviction be set aside and remitted the matter to the Supreme Court of Victoria for a retrial.

Orders