RP v The Queen - [2016] HCATrans 261

[2016] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S193 of 2016

B e t w e e n -
RP
Appellant
and
THE QUEEN
Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 NOVEMBER 2016, AT 10.16 AM

MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MS J.L. ROY, for the appellant. (instructed by Legal Aid NSW)

MS S.C. DOWLING, SC: Your Honours, I appear with my learned friends, MR N.J. OWENS, SC and MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL J: Yes, Mr Dhanji.

MR DHANJI: Your Honours I trust have received our three‑page outline of argument. I propose to, in essence, cover the ground dealt with in that outline. Your Honours, many of the discussions in this area begin with reference to what was said by his Honour Justice Harper in the Supreme Court of Victoria in R (A Child) v Whitty (1993) 66 A Crim R 462. His Honour there made reference to what was said by Professor Howard, that is:

“No civilised society” . . . “regards children as accountable for their actions to the same extent as adults”.

Now, that as a starting point obviously informs one of the problems that one is dealing with, that it is in fact – or, in our submission, it is perhaps helpful to go back a step further and actually look at the interaction that is going on as between children and the criminal law. I appreciate this is trite, but it is worth starting with the observation that the modern criminal law is based on an assumption of free will and moral agency - in other words, the ability to make choices based on an understanding of what is right and wrong. In that sense, we have moved some distance from trials of the Middle Ages of machines or animals.

In the present context, the appellant was a child as young as 11 years and seven months at the time of count 2, and some weeks beyond that at the time of count 3. He was tried. He was convicted and ultimately sentenced on the basis that he bore moral responsibility for his act. He was sentenced, as your Honours will appreciate, to imprisonment, clearly as punishment for that wrongdoing as adjudged in the course of his trial.

The intersection involved requires some analysis of the notion of a child and that intersection with the law – and I am looking at point 3 under Part A – and the idea that the notion of “childhood” is both a legal and a developmental concept. So its legal significance is somewhat different to ordinary adults in that children are subjected to, or at least potentially exposed to, a variety of controls that go beyond the criminal law…

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 RP v The Queen

Details

AGLC: RP v The Queen [2016] HCATrans 261
Case: [2016] HCATrans 261
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by RP against a conviction for a sexual offence. The central dispute concerned the admissibility of certain evidence, specifically a recording of an interview between RP and police, and the subsequent use of that recording in the trial.

The High Court was required to determine whether the recording of the interview was improperly obtained, and if so, whether it should have been excluded from evidence under the *Uniform Evidence Law*. Specifically, the Court had to consider whether the interview was conducted in circumstances that rendered the recording unfair to the appellant, or whether its admission would have had an adverse effect on the proper administration of justice.

The Court's reasoning focused on the principles governing the admissibility of evidence obtained in contravention of legal or procedural requirements. It examined the discretion of the trial judge to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the accused, or where its admission would be otherwise contrary to the public interest. The High Court ultimately found that the interview had been conducted in a manner that did not render the recording inadmissible, and that the trial judge had correctly exercised their discretion in admitting the evidence.

The appeal was dismissed.

Orders