RR v The Queen - [2013] HCATrans 272

[2013] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 2013

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

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 11.58 AM

MS C.A. BOSTON: May it please the Court, I appear on behalf of the applicant. (instructed by Valos Black & Associates)

MR T. GYORFFY, SC: If it please the Court, I appear on behalf of the respondent with my learned friend, MR E.H. RUDDLE. (instructed by Office of Public Prosecutions Victoria)

CRENNAN J: Yes.

MR GYORFFY: There is one preliminary matter that I ask be dealt with. I understand this will be by consent, your Honours, and it is pretty self‑explanatory if I hand up the proposed orders that are sought by consent in relation to this matter.

CRENNAN J: This is an application for a non‑publication order?

MR GYORFFY: Yes, your Honour.

CRENNAN J: I might just have the matter called and then we will take the consent orders.

COURT OFFICER: No other appearance, your Honour.

CRENNAN J: Thank you. Yes, Mr Gyorffy.

MR GYORFFY: I might hand up the proposed order, your Honour. It relates to just one item in the materials, that is annexure C to the applicant’s submissions in reply. Your Honours would realise that that is the offending material in relation to the criminal prosecution.

CRENNAN J: Yes, we have the minute now, thank you, Mr Gyorffy. Yes, we make those orders in the form of the minute, thank you.

MR GYORFFY: Thank you, your Honour.

CRENNAN J: Yes, Ms Boston.

MS BOSTON: If the Court please. Stalking and making a false document, offences which this Court has not yet been able to consider the elements of, and which, in my respectful submission, are ill‑fitting suits for the conduct in which the jury clearly found the applicant engaged. Indeed, the suits are not only ill‑fitting, they are bursting at the seams and they are made of shoddy. The golden thread of the criminal law by contrast is made of much stronger stuff. Its importance to the administration of criminal justice in this country cannot be overstated. The phrase is oft repeated, an accused is not guilty unless the prosecution discharges its burden of proving each and every element of an offence beyond reasonable doubt.

BELL J: I think you can take that as read.

MS BOSTON: Every jury is told as much. They are also told ‑ ‑ ‑

CRENNAN J: Just remember we are not a jury, Ms Boston.

MS BOSTON: Yes, your Honour. They are also told they must be careful to exclude from their deliberations any feelings of prejudice, bias and sympathy. The question of general importance raised by ground 1 is what approach then should appellate courts take in deciding whether it was open to the…

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.

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Details

Case: [2013] HCATrans 272
Decision Date

CaseChat Overview and Summary

The case of *RR v The Queen* concerned an appeal by the applicant, RR, against a conviction for sexual offences. The appeal was heard by Crennan and Bell JJ of the Supreme Court of Victoria, Court of Appeal.

The central legal issue before the Court was whether the trial judge had erred in admitting evidence of the applicant's prior sexual history. Specifically, the Court had to consider the application of s 102 of the *Uniform Evidence Law* (Victoria), which governs the admissibility of evidence of a person's sexual reputation or past sexual behaviour in sexual offence proceedings. The applicant argued that the evidence was improperly admitted as it did not fall within any of the exceptions to the general prohibition on such evidence.

The Court's reasoning focused on the interpretation of s 102 and its exceptions. Crennan and Bell JJ analysed the purpose of the provision, which is to prevent prejudice to an accused by preventing the jury from being influenced by irrelevant or unfairly prejudicial information about their past sexual conduct. They considered whether the evidence in question met the criteria for admissibility under the exceptions, which typically require the evidence to be relevant to a fact in issue in the proceeding, or to be evidence of the complainant's sexual behaviour that is not unfairly prejudicial. The Court ultimately found that the evidence of prior sexual history was not admissible under any of the exceptions to s 102.

The Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders