SBX v The Queen - [2013] HCATrans 238

[2013] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2013

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

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 10.04 AM

MR P.J. CALLAGHAN, SC: If it please the Court, I appear with my learned friend, MR B.P. DIGHTON, for the applicant. (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC: If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Callaghan.

MR CALLAGHAN: Your Honour, the jury found the applicant guilty of count 3. That was an offence that was unproven by any evidence.

FRENCH CJ: Now, this was an error which was not picked up by either counsel or by the judge. Is that correct?

MR CALLAGHAN: That is correct, but the jury received explicit and repeated directions as to their responsibilities in the circumstances, and I will take you to those in a moment.

FRENCH CJ: But your basic submission is that their conviction on count 3 has tainted everything else?

MR CALLAGHAN: That is our first and overriding submission, yes. It is reinforced when regard is had to the conviction on count 6, which is not quite as stark an example of the jury failing in its responsibilities, but is nonetheless quite a compelling one. I might turn to that directly.

The Court of Appeal suggested that the evidence on count 6 and 7 was not easy to follow but, in fact, the relevant timeframe for the offences was identified, the relevant acts were described and the counts were clearly particularised. The problem began when the trial judge told the jury that count 6 related to an incident that involved both ejaculation and use of a condom. As pleaded and ostensibly proven, count 6 involved neither.

The Court of Appeal expressed the view that his Honour had conflated count 6 with count 7. That was, with respect, another mistake by the court. Count 7 did not involve a condom. If count 6 had been conflated with anything, it is with some evidence of uncharged acts that involve both a condom and ejaculation. In any case, count 6 involved neither.

What that means is that either the jury did convict on the basis of what the judge told them count 6 was all about, in which case they convicted of an offence that was not even charged, or they were not following the judge’s directions at all on this point. It probably does not matter, but if we had to say which was more likely, we would point to evidence that supports the latter scenario and that brings us back to count 3 because in order to convict on count 3 the jury had to ignore, we…

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 SBX v The Queen

Details

AGLC: SBX v The Queen [2013] HCATrans 238
Case: [2013] HCATrans 238
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by SBX against a conviction for murder. The dispute concerned the admissibility of certain evidence during SBX's trial, specifically evidence relating to a prior inconsistent statement made by a key prosecution witness.

The central legal issue before the High Court was whether the trial judge had erred in admitting the prior inconsistent statement of the witness into evidence. This involved determining whether the statement was admissible as evidence of the truth of its contents, or merely for the purpose of showing that the witness had made a prior inconsistent statement. The Court also considered the potential for unfair prejudice arising from the admission of such evidence.

The High Court held that the trial judge had erred in admitting the prior inconsistent statement as substantive evidence of the facts contained within it. The Court reaffirmed the principle that a prior inconsistent statement of a witness is generally admissible only to impeach the credit of the witness, not to prove the truth of the matters asserted in the statement, unless specific exceptions apply. In this instance, the Court found that the admission of the statement for its truth had created a substantial risk of unfair prejudice to the appellant, outweighing its probative value.

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

Orders