Warner v The Queen - [1995] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A45 of 1994

B e t w e e n -

GARY JOHN WARNER

Applicant

and
THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 30 MARCH 1995, AT 11.24 AM

MS M.E. SHAW: If it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, for the applicant. (instructed by Phillip A. Templeton)

MS W.J. ABRAHAM: If the Court pleases, I appear with MR R.N. JENSEN for the respondent. (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN J: Yes, Ms Shaw.

MS SHAW: There are two parts to the applicant’s submission for special leave. Both raise the issue of the potential implications of a verdict of not guilty on one count of an information joining several counts. The first special leave point raises the question of the proper direction to be given to a jury where a number of counts are joined on an information and depend upon the evidence of a single complainant.

The second part of our submission is that the majority of the Court of Criminal Appeal has erred in principle in not carrying out a proper evaluation of the nature and quality of the evidence of the complainant in order to determine whether the verdicts are unsafe and unsatisfactory. It is our submission that his Honour Justice Prior, who delivered the majority judgment, incorrectly interpreted the verdict of not guilty on counts 1 and 2 as being unsafe on the part of the complainant as to the date of the offence.

As to our first special leave point concerning the proper directions, it is our submission that the standard direction commonly given where several counts are tried together, namely that the jury must consider each count separately, is capable of misleading a jury in its overall evaluation of the evidence, if standing alone. That was the view taken by his Honour Chief Justice King in his dissenting judgment in the circumstances of the present case. He says so at page 345 of book 2 of the application books at line 5. His Honour the Chief Justice did not specifically consider the direct issue because he found the verdicts were unsafe and unsatisfactory but during the course of his finding on the issue of the satisfactory nature of the verdict, at line 6 he said:

The second factor is that the summing up was misleading as to the significance of the refutation of the girl’s evidence as to the Australia Day weekend. In directing the jury to consider each count separately, His Honour said:

“Do not confuse or consider the evidence with regard to any one occasion in considering the evidence with regard to another occasion or the other occasions.”

And, in fact, his Honour the trial judge had twice…

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 Warner v The Queen

Details

AGLC: Warner v The Queen [1995] HCATrans 71
Case: [1995] HCATrans 71
Decision Date

CaseChat Overview and Summary

In *Warner v The Queen*, the High Court of Australia considered an appeal by the applicant, Warner, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and certain statements made by him to police. This evidence was admitted on the basis that it was relevant to the applicant's propensity to commit the offence charged.

The High Court held that the admission of evidence of prior convictions and the statements made to police was an error. Brennan, Deane and Dawson JJ reasoned that such evidence was not relevant to proving the commission of the offence charged, but rather served to demonstrate the applicant's bad character and propensity to commit offences. This, they found, was contrary to the principle that evidence of prior convictions is generally inadmissible to prove guilt of a subsequent offence, unless it possesses a specific probative value beyond mere propensity. The court affirmed that the onus was on the prosecution to demonstrate that the evidence had a relevance that outweighed its prejudicial effect.

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

Orders