Steven Moore (a pseudonym) v The King - [2024] HCATrans 42

[2024] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M23 of 2024

B e t w e e n -
STEVEN MOORE (A PSEUDONYM)
Appellant
and
THE KING
Respondent

GAGELER CJ
EDELMAN J
STEWARD J
GLEESON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 JUNE 2024, AT 10.02 AM

MR C.T. CARR, SC: If the Court pleases, I appear with my learned friends MR J.R. MURPHY and MR P.D. COLERIDGE on behalf of the appellant. (instructed by Angus Cameron Lawyers)

MR B.F. KISSANE, KC: If the Court pleases, I appear with my learned friend MR J.P. O’CONNOR on behalf of the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER CJ: Thank you. Yes, Mr Carr.

MR CARR: The Court will perceive that embedded within our single ground of appeal there are two contentions of error, the first relating to the standard of error applied by the Court of Appeal, and the second concerning the Court of Appeal’s assessment of the danger of unfair prejudice. Starting logically with the first of those errors, it is convenient for us to start with the approach taken by the Court of Appeal to the finding of error.

One can see in the judgment of the Court of Appeal detailed explication of the House standard at paragraph 52 and, again in respect of section 137, at paragraph 178. The dispositive conclusion of the court is expressed in terms appropriate to that standard at paragraph 6(b) on core appeal book page 49. The dispositive conclusion is expressed in these words:

it was open to the judge to decide not to exclude the evidence pursuant to s 137 –

Again, in further explanation of their Honours’ reasons, at core appeal book page 94, the language of House is deployed in paragraph 187 to explain the court’s reasons for considering that it was “open to the trial judge”.

GAGELER CJ: And what do we make of paragraph 188?

MR CARR: In our respectful submission, not very much. It cannot be, as the respondent seems to contend, an alternative application of the Warren v Coombes standard because there is no mention anywhere in the judgment of that that standard at any other point, or indeed, any uncertainty expressed in their Honours’ reasoning as to the applicable standard of their own. So, it would be a curious thing to apply an otherwise unmentioned standard of error in a passing ‑ ‑ ‑

EDELMAN J: What does the word “correct” mean?

MR CARR: What it means is, in our submission, this. Their Honours took section 137 to be a discretionary power – that is, a power which permitted of a range of permissible outcomes – and paragraph 188 is a conclusion that they would have exercised the discretionary power in the same way.

It is effectively the completion of the task that their Honours describe is involved in House at paragraph 52…

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 Steven Moore (a pseudonym) v The King

Details

AGLC: Steven Moore (a pseudonym) v The King [2024] HCATrans 42
Case: [2024] HCATrans 42
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Steven Moore (a pseudonym) against the decision of the Court of Appeal of the Supreme Court of New South Wales. The dispute concerned the appellant's conviction for a serious criminal offence.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence that the appellant argued was unfairly prejudicial and should have been excluded. Specifically, the court had to determine the proper application of the principles governing the admissibility of evidence that might tend to suggest a party has a propensity to commit offences.

The High Court reasoned that the evidence in question, while potentially prejudicial, was relevant to establishing a crucial element of the prosecution's case. The judges applied established principles of evidence law, including the balancing exercise required under section 137 of the *Evidence Act 1995* (NSW), which mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice. The Court found that the trial judge had properly conducted this balancing exercise and that the admission of the evidence did not occasion a miscarriage of justice.

The appeal was therefore dismissed.

Orders