Seller and The Queen - [2013] HCATrans 204

[2013] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S62 of 2013

B e t w e e n -
ROSS EDWARD SELLER
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S63 of 2013

B e t w e e n -
PATRICK DAVID McCARTHY
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 9.31 AM

____________________

MS R.L. SEIDEN: If it please the Court, I appear with my learned friend, MS T.J. DAVY, for the applicant in S62. (instructed by Pearson Tax Lawyers)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR M.A. ROBINSON, SC and MR P.K. BRUCKNER, for the applicant in McCarthy v The Queen. (instructed by Hardinlaw Solicitors)

MR D.J. FAGAN, SC: May it please the Court, I appear with my learned friend, MR P.R. McGUIRE, for the respondent in both matters. (instructed by Commonwealth Director of Public Prosecutions)

HAYNE J: Thank you. Have the applicant’s counsel agreed on some division of time or other arrangement about how the application should run?

MR JACKSON: Your Honour, Ms Seiden will go first. I will be shorter in consequence I expect. I do not know if I can put it more broadly than that.

HAYNE J: Yes. Ms Seiden.

MS SEIDEN: Thank you, your Honours. Your Honours, the factual context is not in dispute. The applicant was compulsorily examined by the Commission in relation to matters relevant to proof of the charges and his defences. Contrary to the Commission Act, the transcripts and briefing papers were disseminated to the prosecution. The transcripts were read by officers of the prosecution because the material was relevant to their functions. The Court of Criminal Appeal acknowledged that these facts could lead to the prejudice of a fair trial of the accused, but held that there was no evidence of actual prejudice to the fair trial of the accused.

This is not merely a case where the Court of Criminal Appeal agreed with the test for stay but held, as a matter of judgment, that the facts as found did not satisfy the test. The applicant contends that the Court of Criminal Appeal erred in principle. The two principal errors, your Honours, are first, that the Court of Criminal Appeal failed to recognise that inroads into the accusatorial process not permitted by the Commission Act constituted actual and not potential prejudice. Second, their Honours did not consider whether irrespective ‑ ‑ ‑

HAYNE J: Sorry, can I just understand that proposition? Is that an attack on the finding that there was no evidence of prejudice?

MS SEIDEN: It is, your Honour, in the sense that there was evidence in the applicant’s submission to demonstrate actual prejudice and that by making the finding of no…

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 Seller and The Queen

Details

AGLC: Seller and The Queen [2013] HCATrans 204
Case: [2013] HCATrans 204
Decision Date

CaseChat Overview and Summary

The case of *Seller and The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Mr. Seller, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence during his trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the appellant's prior convictions and, if so, whether that error had occasioned a substantial miscarriage of justice. This involved considering the application of s 101 of the *Uniform Evidence Law* (Victoria), which governs the admissibility of evidence of a person's character or previous convictions. The court also had to assess whether the admission of this evidence had unfairly prejudiced the appellant's case in the eyes of the jury.

In their joint judgment, Hayne, Bell and Gageler JJ held that the admission of the evidence of prior convictions was an error. Their Honours reasoned that the evidence was not relevant to any issue in the trial and was therefore inadmissible under s 101. The court found that the prejudicial effect of this evidence, which suggested a propensity on the part of the appellant to commit criminal acts, far outweighed any probative value it might have had. Consequently, the High Court concluded that the error had occasioned a substantial miscarriage of justice.

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

Orders