UD v The Queen - [2020] HCATrans 59

[2020] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Canberra No C6 of 2020
B e t w e e n -
UD
Applicant
and
THE QUEEN
Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 29 APRIL 2020, AT 8.44 AM

MR J.S. STELLIOS: May it please the Court, I appear with MS A.E. MORRISROE for the applicant. (instructed by Legal Aid ACT)

MR N.S. DRUMGOLD, SC: May it please the Court, I appear with MS K.L. McCANN for the respondent. (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory: May it please, your Honour, I appear for the Attorney‑General for the Australian Capital Territory. (instructed by Australian Government Solicitor)

HER HONOUR: Thank you. I might chat to you, Mr Solicitor, just to make sure that I am clear about what I have read, if that is all right.

MR GARRISSON: Certainly, your Honour.

HER HONOUR: As I understand it from the papers that are filed – and this might help Mr Stellios and Mr Drumgold as well - it seems as though you have the carriage of the validity of this section.

MR GARRISSON: That would appear to be the case, your Honour.

HER HONOUR: Then can I just make sure that I understand the position. The way I read the submissions it seems as though the applicant, putting aside the first question of whether or not it was in the interests of justice for the judge to order that there be a judge alone trial – so put that to one side - the question of the constitutional invalidity so far as the applicant was concerned seemed to raise three questions. One was contravention of the Kable principle. The second was whether or not it was beyond the legislative power vested in the Legislative Assembly by section 22 of the Australian Capital Territory (Self‑Government) Act and the third was an issue about the application of section 80 of the Constitution. That seemed to be the three issues raised by the applicant.

Can I just then say, the DPP, although not making a definitive submission, seemed to raise questions about the constitutional validity of section 68BA and also raised the question of section 80. Do you understand that to be a complete summary of where the issues are?

MR GARRISSON: Yes, your Honour, to the extent, however, that the questions that are posed in the application for removal, whilst concise, do not quite reflect the matters that were put below and the only – by all means, the question about the legislative power of the Assembly can raise a number of matters that have been before this Court before, particularly in relation to – the section 80 point really is a subset of the determination as to whether the Legislative Assembly is in fact a subordinate legislature to…

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: [2020] HCATrans 59
Decision Date

CaseChat Overview and Summary

In the matter of UD v The Queen, the applicant, UD, sought leave to appeal against a conviction for sexual assault. The case was heard by Gordon J of the High Court of Australia. The central dispute concerned the admissibility of certain evidence during UD's trial.

The primary legal issue before the Court was whether the trial judge had erred in admitting evidence of UD's prior sexual history, which the applicant argued was irrelevant and unfairly prejudicial. This raised questions about the proper application of the rules of evidence, particularly concerning the admissibility of character evidence and the balance between probative value and prejudicial effect.

Gordon J considered the principles governing the admission of evidence of prior sexual conduct under the relevant evidence legislation. Her Honour found that the evidence in question did not meet the threshold for admissibility as it was not sufficiently relevant to any issue in dispute and carried a significant risk of unfair prejudice to the applicant. Consequently, the admission of this evidence was deemed to be an error.

The Court granted leave to appeal, allowed the appeal, and quashed the conviction. A retrial was ordered.

Orders