X7 v The Queen - [2015] HCATrans 109

[2015] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S313 of 2014

B e t w e e n -
X7
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MAY 2015, AT 10.20 AM

MR R. RICHTER, QC: If the Court pleases, I appear with my learned friend, MR G.D. WENDLER, for X7. (instructed by Weller & Weller Solicitors)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR C.P. O’DONNELL, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Richter.

MR RICHTER: If the Court pleases, your Honours both having sat on X7, there is a wealth of familiarity with the background to it in the material and I do not need to go into that. Your Honours would also be aware of the fact that part of the case stated recited the following – and this is at paragraph 11 of the case stated and we will have copies for your Honour if your Honours desire it, but it sets out that the plaintiff was administered an affirmation under section 28(5) of the ACC Act and was asked and answered questions which included detailed questions about matters concerning the subject matter of the offences with which he has been charged.

So that we start off with the notion that the case involved a situation in which an accused was asked detailed questions, not anodyne questions about name and address. He was asked detailed questions about the subject matter of the offences with which he had been charged.

KIEFEL J: That may be so but the primary judge found that the evidence showed that nobody associated with the investigation was present at the hearing and there was no evidence of dissemination or directions as to confidentiality and, I mean, they are more pertinent to the question of stay, are they not, Mr Richter?

MR RICHTER: They are, in one sense, depending on how you approach the question of stay in a situation where there has been what I might describe as effectively a constitutional contempt, more of the Moti variety than of the Jago variety.

KIEFEL J: Is this to suggest that a stay is to be used as a kind of penalty?

MR RICHTER: It is not so much a question of a penalty. Where you have an unpunished contempt which cannot be purged, for example, it is not a matter of punishing the Executive. It is a matter of recognising that an accused person cannot have the kind of trial that section 80 provides for in this sense: that where the accused has been questioned on oath and has been forced to commit himself to certain propositions, that necessarily ties that accused’s hands in terms of the choices to be made at any…

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 X7 v The Queen

Details

AGLC: X7 v The Queen [2015] HCATrans 109
Case: [2015] HCATrans 109
Decision Date

CaseChat Overview and Summary

The High Court of Australia, constituted by French CJ and Kiefel J, considered an appeal by X7 against a conviction for a sexual offence. The central dispute concerned the admissibility of certain evidence during X7's trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of X7's prior sexual conduct with the complainant, which had occurred some years before the offence charged. This involved determining whether the evidence was relevant and, if so, whether its probative value outweighed any potential prejudice to the appellant.

The Court reasoned that the evidence of prior sexual conduct was relevant to establishing the context of the relationship between X7 and the complainant and was capable of demonstrating a pattern of behaviour. However, the Court also acknowledged the significant risk of prejudice that such evidence could pose to an accused. Applying the principles of relevance and prejudice, the Court concluded that the admission of this evidence was an error. The probative value of the evidence was not sufficiently high to justify the substantial risk of unfair prejudice to X7.

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

Orders