SKA v The Queen - [2010] HCATrans 290

[2010] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S100 of 2010

B e t w e e n -
SKA
Applicant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 NOVEMBER 2010, AT 10.17 AM

MR H.K. DHANJI, SC: May it please the Court, I appear for the applicant in that matter with my learned friend, MR C.E. ALEXANDER. (instructed by Crawford & Duncan)

MS D.M.L. WOODBURNE, SC: May it please the Court, I appear with MS J.A. GIRDHAM for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honours. Your Honours, this is an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales in relation to the dismissal of the applicant’s appeal against his convictions in the District Court. His appeal to that court was brought pursuant to section 5 of the Criminal Appeal Act 1912. It was to be determined by the Court of Criminal Appeal in accordance with section 6 of that Act. There was one ground of appeal with respect to the conviction. It was not in form expressed as being that the verdict of the guilty was unreasonable or could not be supported having regard to the evidence, but it was properly understood by the Court of Criminal Appeal as an appeal on that basis.

The primary contention on behalf of the applicant is that the Court of Criminal Appeal erred in that it, in determining the applicant’s appeal, failed to make an independent assessment of the evidence. That failure is manifested in two primary ways; firstly, the failure to consider all and only the relevant material relating to that appeal and, secondly, failing to apply an independent analysis to the material that was considered. That first primary contention has three limbs and those are that her Honour did not have regard to all the evidence, that her Honour had regard to matters which were not evidence and her Honour failed to have regard to the trial judge’s opinion. Those three matters are limbs, if I can put it that way, of the first aspect.

If I can take, however, the matters in reverse order and begin with the way in which her Honour dealt with the material that her Honour did take into account. That will, in turn, lead into a consideration of the material that should have been taken into account and, I hope, will then lead to an understanding of the significance of the failures of the Court of Criminal Appeal in this matter. If I can say very briefly something about the nature of the inquiry required of the Court of Criminal Appeal.

The proper approach to the question of whether a verdict of a jury is unreasonable or cannot be…

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 SKA v The Queen

Details

AGLC: SKA v The Queen [2010] HCATrans 290
Case: [2010] HCATrans 290
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by SKA against a conviction for murder. The appellant had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed the appeal. The central dispute concerned the admissibility of certain evidence and the directions given to the jury by the trial judge.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior convictions and whether the judge's directions to the jury regarding the use of that evidence were adequate. Specifically, the court had to consider whether the prejudicial effect of the evidence of prior convictions outweighed its probative value, and if the jury was properly instructed on how to consider such evidence, particularly in relation to the issue of propensity.

The High Court allowed the appeal, quashing the conviction and ordering a new trial. The majority of the Court held that the admission of the evidence of prior convictions was an error. They reasoned that the evidence was highly prejudicial and its probative value was limited, particularly in relation to the specific elements of the murder charge. The judges concluded that the directions given to the jury were insufficient to mitigate the prejudicial impact of this evidence, thereby creating a substantial risk that the jury had used the prior convictions as evidence of the appellant's propensity to commit the crime, rather than for a permissible purpose.

Orders