Roach v The Queen - [2010] HCATrans 288

[2010] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B41 of 2010

B e t w e e n -
KERRY RAYMOND ROACH
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 NOVEMBER 2010, AT 10.00 AM

MR M.J. BYRNE, QC: May the Court please, I appear with my learned colleagues, MR H.C. FONG and MR C.W. HEATON, for the appellant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my learned friend, MR A.D. ANDERSON, for the respondent. (instructed by Office of the Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, the case concerns what is said to be similar fact evidence. That has two limbs. The protective limb, regarding the evidence of uncharged acts was described in 1935 by Viscount Sankey, Lord Chancellor, as:

“ . . . one of the most deeply rooted and jealously guarded principles of our criminal law . . . ”

That quotation was cited in approval in Boardman’s Case at page 439. In the instant matter, the Court of Appeal ultimately, in our submission, found the earlier uncharged acts led, in this case, to be admissible as propensity evidence. That is apparent from paragraphs [20] and [21] of the judgment of the Court of Appeal which is on page 285 of the appeal book.

I will return to that shortly but that finding, at least structurally, in the judgment of the Court of Appeal came subsequently to the Court of Appeal having determined that the Pfennig test was inapplicable to these circumstances given the Queensland legislation. That finding is in paragraphs [13] and [14] of the judgment which appears at pages 282 and 283 of the appeal book.

The first challenge put forward by the appellant is that if that latter finding is correct then the test for admissibility of any history of a domestic relationship is to be determined without regard to the safeguards of the principles in Pfennig. Here, our submission is, firstly, that the unsupported and uncorroborated accounts of the complainant as to the earlier uncharged acts wrongly were allowed to be used as propensity in circumstances where, on virtually every objective test as to the complainant’s credibility as to the specific charged assault, her account was found to be wanting. Looked at in that ‑ ‑ ‑

HEYDON J: The problem is, though, that in assessing admissibility, which is an event that usually takes place before the evidence is actually given ‑ ‑ ‑

MR BYRNE: That is so, your Honour.

HEYDON J: ‑ ‑ ‑ flaws in the credibility of a witness, to put it shortly and crudely, are not really taken into account, are they? What you just submitted might be an unsafe and unsatisfactory type of contention, but I am…

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 Roach v The Queen

Details

AGLC: Roach v The Queen [2010] HCATrans 288
Case: [2010] HCATrans 288
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Roach against a conviction for murder. The central dispute concerned the admissibility of evidence obtained from Mr Roach during a police interview conducted after he had been arrested and charged with murder.

The primary legal issue before the High Court was whether the evidence obtained from Mr Roach during the interview, specifically his admissions, should have been excluded under section 82(1) of the *Uniform Evidence Law* (or equivalent state legislation). This section permits the exclusion of improperly or illegally obtained evidence. A further issue was whether, even if the evidence was improperly or illegally obtained, it should have been admitted under section 138 of the *Uniform Evidence Law* (or equivalent state legislation) as a discretionary matter, balancing the public interest in admitting the evidence against the public interest in promoting lawful conduct by police.

The High Court held that the evidence obtained from Mr Roach was improperly or illegally obtained because the police failed to caution him in accordance with their statutory duty before commencing the interview. The Court then considered the discretionary limb of section 138. It found that the impropriety of the police conduct was significant and that the public interest in deterring such conduct outweighed the public interest in admitting the evidence. Accordingly, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders