Xerri v The King - [2023] HCATrans 142

[2023] HCATrans 142
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S76 of 2023
B e t w e e n -
BRIAN XERRI
Appellant
and
THE KING
Respondent

GAGELER J
GORDON J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERA ON WEDNESDAY, 18 OCTOBER 2023, AT 9.47 AM
Copyright in the High Court of Australia
MR N.M. STEEL: Your Honours, I appear with MS R.J. RODGER for the appellant. May it please the Court. (instructed by Ryan Payten Le)
MS H.R. ROBERTS, SC: May it please the Court, I appear with MR B.A. HATFIELD, SC and MS E.S. JONES for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))
GAGELER J: I noticed that the estimates of time seem rather generous. How long do you expect to be, in practice, Mr Steel?
MR STEEL: Your Honour, I was thinking I would be 45 minutes to an hour.
GAGELER J: And Ms Roberts?
MS ROBERTS: Yes, I would be able to give a similar estimate, your Honour.
GAGELER J: Yes, thank you. Very well. Mr Steel.
MR STEEL: Yes. Thank you, your Honour. Your Honours, can I start by indicating there were two documents that we were seeking to hand up, to which I understand there may be no objection to. One of them, in turn, is the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill, which introduced a new section, 21B, into the Crimes (Sentencing Procedure)Act, which has been referred to in these written submissions of the appellant.
The other document is a document that shows the change in section 25AA, from just prior to the amendment, where 21B came in force, where certain provisions were applied not merely to child sexual offences but to all offences. Then it shows 25AA, as it appears now that 21B is in force with various provisions no longer being in force. Could I hand copies of those to the Court?

GAGELER J: Yes.
MR STEEL: Your Honours, the primary appeal in this appeal is whether a new maximum penalty of imprisonment for life for an offence of persistent sexual abuse of a child contrary to section 66EA of the Crimes Act (NSW) has retrospective application when at the time of the appellant’s offending the applicable maximum penalty was 25 years’ imprisonment. The appellant submits that the current section 66EA is partly retroactive, that is, that it operates retrospectively but for the maximum penalty due to the operation of section 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as made clear by section 25 of that Act, which is one of the documents that I have just handed up.
The current section 66A provision was enacted in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The earlier or predecessor form of section 66A had been in force in New South Wales since 1999. In the second reading speech for the Bill that…

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 Xerri v The King

Details

AGLC: Xerri v The King [2023] HCATrans 142
Case: [2023] HCATrans 142
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Xerri v The King*. The case concerned the proper application of the principles governing the admissibility of evidence of a defendant's prior convictions in criminal proceedings. The central dispute revolved around whether evidence of the appellant's previous convictions was unfairly prejudicial to the appellant and therefore inadmissible, or whether it was relevant to a fact in issue and properly admitted by the trial judge.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior convictions. Specifically, the Court had to consider whether the probative value of this evidence, in relation to the charges the appellant faced, outweighed its prejudicial effect. This involved an assessment of whether the evidence was capable of being used by the jury for an impermissible purpose, such as inferring guilt based on past conduct rather than on the evidence relating to the current charges.

The Court reasoned that evidence of prior convictions is generally inadmissible unless it has a direct bearing on a fact in issue in the current proceedings, beyond merely suggesting a propensity to commit the crime charged. In this instance, the High Court found that the evidence of prior convictions was admitted for the purpose of establishing the appellant's identity and his knowledge of the criminal enterprise. However, the Court concluded that the trial judge had failed to adequately direct the jury on the limited purpose for which the evidence could be used, thereby creating a substantial risk that the jury would use the evidence impermissibly to infer guilt. The Court held that the admission of the evidence, without sufficient limiting directions, resulted in a miscarriage of justice.

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

Orders