RWB v The Queen [2011] HCATrans 34 - [2011] HCATrans 34

[2011] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S229 of 2010

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

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 3.29 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.J. BUTTON, SC. (instructed by Legal Aid Commission of NSW)

MR D.U. ARNOTT, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J: Yes, Mr Odgers.

MR ODGERS: Your Honours, this application raises questions of general importance regarding the meaning of the terms “miscarriage of justice” and “substantial miscarriage of justice” in the common form appeal provisions. We also contend that special leave should be granted to ensure that the applicant receives what the Court of Criminal Appeal accepted he was denied, a fair trial. The court accepted he did not receive a fair trial but, nonetheless, concluded that the appeal should be dismissed. Justice Simpson considered that, notwithstanding the errors made by the judge in his summing‑up and the conclusion that the applicant did not receive a fair trial, that there was no miscarriage of justice because the evidence in relation to which the comment was made had no significance. That was the nub of the ruling. The evidence in relation to which the judge made comment had no significance.

We accept it. We accept that what I will call “the bottom patting incident”, about which the applicant gave evidence and which had not been put to the complainant in cross‑examination, did not in itself have any real significance in the trial, bearing in mind the fact that defence counsel ultimately did not suggest to the jury that the complainant’s father did sexually abuse her. However, that was not determinative of whether there was a miscarriage of justice. If a jury concludes that an accused person has lied on oath in the witness box that is likely to have an impact on the jury’s assessment of the accused’s credibility regardless of the precise topic about which he has lied.

The issue which we submit the Court of Criminal Appeal should have addressed was whether there was significance in the jury being wrongly invited to infer that the applicant was “making it up as he was going along” in his sworn testimony in an attempt to falsely direct blame to the complainant’s father. The court failed to consider that question at all, either in respect of the issue of whether there was a miscarriage of justice or in the application of the proviso. If that question had been asked, the answer should be that it was reasonably possible that the jury accepted the Crown Prosecutor’s argument which was substantially endorsed by the trial judge, that is,…

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: [2011] HCATrans 34
Decision Date

CaseChat Overview and Summary

The High Court of Australia, constituted by Heydon and Bell JJ, heard an application for special leave to appeal in *RWB v The Queen*. The applicant, RWB, sought to challenge a decision of the Court of Criminal Appeal of New South Wales, which had dismissed RWB's appeal against a conviction for an offence. The precise nature of the offence and the grounds for the original appeal were not detailed in the provided text.

The central legal issue before the High Court was whether the applicant had demonstrated an arguable case of error in the decision of the Court of Criminal Appeal, sufficient to warrant the grant of special leave to appeal. This required the Court to consider whether there were substantial points of law or questions of public importance raised by the applicant's proposed grounds of appeal.

The High Court, having considered the submissions, determined that the applicant had not established an arguable case of error in the decision below. Consequently, special leave to appeal was refused.

Orders