Roach v The Queen - [2010] HCATrans 166

[2010] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B13 of 2010

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

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 2010, AT 12.46 PM

MR P.J. DAVIS, SC: If it pleases the Court I appear with my learned friend, MR C.W. HEATON, for the applicant. (instructed by Legal Aid Queensland)

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

KIEFEL J: Yes, Mr Davis.

MR DAVIS: Your Honours, there is a preliminary point. The application was actually made out of time. Page 84 is the application for special leave. There is no actual application there to extend time. Peculiarly though, the application is hidden on page 86 in the draft notice of appeal at paragraph 5. An affidavit was filed with the application. It does not appear to have made its way into the application book unfortunately and no party has taken any point in the actual outlines of submission.

KIEFEL J: No issue is taken with dispensation with the provisions of time?

MR MOYNIHAN: No.

KIEFEL J: You may proceed on that basis.

MR DAVIS: Thank you, your Honour. Your Honours, since the Court’s decisions in Hoch and Pfennig there has been legislative response in Queensland by amendment to the Evidence Act and there are three sections, two of them which are post‑Pfennig which are relevant to the argument in any event, and two of them are relevant to the Court of Appeal’s decision and relevant, we submit, to this argument; sections 132A, 132B and 130. Section 132A is headed “Admissibility of similar fact evidence” but in fact only really deals with one aspect of this Court’s decision in Hoch, so that, for present purposes, can be ignored. Section 132B, in particular, subsection (2) says:

Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.

Then section 130 maintains a “power”, it is described as:

of the court in a criminal proceeding to exclude evidence –

and we submit this is the important aspect –

if the court is satisfied that it would be unfair to the person charged to admit that evidence.

When it comes to questions of propensity evidence, there are three concepts, in our submission. The first is relevance; so obviously if the evidence does not meet that initial hurdle, then the evidence is inadmissible. Secondly, there is then the special exclusory rule which applies to similar fact evidence and, thirdly, there is the Christie discretion which, of course, is all tied up with the general notion of a…

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 166
Case: [2010] HCATrans 166
Decision Date

CaseChat Overview and Summary

In *Roach v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr. Roach, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence obtained from the applicant, which he argued was obtained in contravention of his rights. Specifically, the court had to determine if the evidence was improperly obtained and, if so, whether its prejudicial effect outweighed its probative value, thereby necessitating its exclusion in the interests of a fair trial.

The Court, comprising Kiefel and Bell JJ, analysed the circumstances under which the evidence was obtained, considering the relevant provisions of the *Crimes Act 1914* (Cth) and common law principles governing the admission of improperly obtained evidence. Their Honours affirmed that while evidence obtained in contravention of statutory provisions may be excluded, the discretion to exclude such evidence is not unfettered. The court must weigh the seriousness of the contravention against the probative value of the evidence and the prejudice it might cause to the accused. In this instance, the Court found no error in the trial judge's exercise of discretion to admit the evidence.

Orders