Uq v The Queen - [2020] HCATrans 42

[2020] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2019

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

BELL J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 2020, AT 9.30 AM

MS A.E. MORRISROE: May it please the Court, I appear on behalf of the applicant. (instructed by Sharman Robertson Solicitors)

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

BELL J: Yes, Ms Morrisroe.

MS MORRISROE: Thank you, your Honours. Your Honours, in relation to this matter, the applicant was arraigned on indictment on 16 July 2018 in the ACT Supreme Court. The indictment contained seven counts of acts of indecency and seven counts of unlawful sexual intercourse. Pleas of not guilty were entered in relation to each count on the indictment. Following the arraignment, the applicant’s trial commenced before his Honour Justice Elkaim and a jury of 12.

BELL J: Yes. I think, Ms Morrisroe, you can take it that we have read the materials.

MS MORRISROE: Thank you. In relation to the matters we determine by your Honours as to the special leave point in respect of this matter, in my submission the issue is narrow but it has broad‑reaching ramifications. The issue is an important area of law relating to judicial directions at trial in circumstances where the issue of motive to lie has arisen as a result of the manner in which the trial has been run or the manner in which closing addresses have been put by counsel.

BELL J: Now, here the matter was raised at the trial and the trial judge sought to address it both by a direction following the Crown Prosecutor’s address and then a more fulsome direction tailored to the issue that had arisen in the course of the summing‑up. Your special leave question, as I understand it, seeks to have this Court give guidance about how a trial judge is to correct an error of the kind that occurred here when, in essence, the prosecutor, in closing address, invited the jury to consider why would the complainant lie.

The matter I raise with you, Ms Morrisroe, is the utility of the court attempting to give guidance about a matter which necessarily must depend on the particular facts and circumstances of the trial. The trial judge is expected to tailor any direction taking account of the way the issues have unfolded in the trial.

MS MORRISROE: Certainly, yes, I entirely accept what your Honour is saying in relation to that. However, it is my submission that there are certain elements of what should be addressed that this Court could give appropriate guidance on and, specifically, it is in relation to how the jury…

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 42
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Uq v The Queen*. The appellant, Uq, was convicted of a criminal offence. The central dispute concerned the admissibility of certain evidence during Uq's trial.

The High Court was required to determine whether the trial judge erred in admitting evidence that was obtained in circumstances that may have contravened the *Australian Consumer Law* (ACL). Specifically, the court considered whether the admission of this evidence was an error that rendered the conviction unsafe or unsatisfactory.

The Court reasoned that the admissibility of evidence obtained in contravention of the ACL should be assessed by reference to the principles governing the admission of improperly or illegally obtained evidence. It held that the trial judge had correctly applied these principles, finding that the evidence was admissible despite the potential contravention of the ACL. The Court emphasised that the focus was on whether the admission of the evidence would have had the effect of rendering the trial unfair.

The appeal was dismissed.

Orders