Sibanda v The Queen [2012] HCATrans 195 - [2012] HCATrans 195

[2012] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2011

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

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 10.42 AM

MR T. KASSIMATIS: May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the applicant. (instructed by Galbally Rolfe)

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the respondent. She will be proceeding with the respondent’s submissions. (instructed by Office of Public Prosecutions Victoria)

GUMMOW J: Yes, Mr Kassimatis.

MR KASSIMATIS: Your Honours, subject to what the Court may have to say, I shall proceed on the basis that the most recent submission raised by the respondent – namely, that in some way this Court’s decision in Getachew v The Queen undermines the error the subject of this appeal in the court below is misconceived. In my submission, the error was properly accepted in the court below and this Court ought not worry itself with anything other than the construction of 276(1) of the Criminal Procedure Act. That, of course, is a provision enacted to replace subsection (1) of what was section 568 of the Crimes Act 1958 and, in our submission, in accordance with the submission made below, effects a material change to the test for the determination of criminal appeals in this State away from that which was held by this Court in Weiss v The Queen.

GUMMOW J: Where do we see the statutory text?

MR KASSIMATIS: The statutory text ‑ ‑ ‑

GUMMOW J: The new statutory text. Is it page 193 of the application book?

MR KASSIMATIS: Yes, your Honour. Can I make this submission from the outset? The applicant in this case relies almost in toto on the statute itself. It is a matter of pure statutory construction that yields, in our submission, to the result that Weiss can no longer apply in the State of Victoria. Insofar as extrinsic materials are relevant and bear upon that question, they bolster that submission, but the submission does not depend upon them.

I have set out in the application book at pages 217 onwards the reasons for that. The primary reason, in my submission, is the shift in the onus. We have moved in this State from a provision which endorsed a two‑step process originally casting the doubt upon the onus upon the appellant to show error and, upon that having been satisfied, shifting the onus to the Crown to persuade a court of appeal that no substantial miscarriage of justice had actually occurred.

That no longer is the case. This is a provision that employs a single onus from beginning to end and a single step…

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: [2012] HCATrans 195
Decision Date

CaseChat Overview and Summary

Sibanda was the applicant and The Queen was the respondent in proceedings before the High Court of Australia. The applicant sought special leave to appeal against a decision of the Supreme Court of Queensland (Court of Appeal) which had dismissed his appeal against his conviction for murder. The central dispute concerned the admissibility of certain evidence during the applicant's trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior inconsistent statements, which had been made to police. Specifically, the issue was whether these statements were admissible as evidence of the truth of their contents, or only as evidence that the statements were made. This question turned on the interpretation of s 60 of the *Evidence Act 1977* (Qld).

The High Court granted special leave to appeal and allowed the appeal. Their Honours held that the trial judge had erred in admitting the prior inconsistent statements as evidence of the truth of their contents. The Court reasoned that s 60 of the *Evidence Act 1977* (Qld) did not render admissible a prior inconsistent statement as evidence of the truth of its contents, unless that statement was also an admission by the accused. In this instance, the statements were not admissions. The Court concluded that the admission of this evidence was a significant error, which likely led to a miscarriage of justice.

The High Court quashed the conviction and ordered a new trial.

Orders