High Court of Australia Judgment Summary Notes

SKA v The Queen [2011] HCA 13

SKA was convicted of five counts of sexual offences against a child committed when the child was staying at the house of SKA and his family. The offences were alleged to have been committed in two time periods. Three counts were alleged to have occurred in 2004. Counts four and five were alleged to have occurred between 1 December 2006 and 25 December 2006. In relation to counts four and five, the child was unable to specify a date on which the incidents took place but gave evidence that it was around Christmas 2006. The date on which these two offences were said to have occurred was critical because SKA led evidence at trial which provided an alibi for the period from the evening of 22 December 2006 up to and including Christmas Eve.

SKA appealed to the Court of Criminal Appeal of New South Wales against conviction and sentence, including under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) states that the Court of Criminal Appeal “shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. The Court of Criminal Appeal dismissed SKA’s appeals and allowed the Crown’s cross-appeal against sentence.

SKA’s application for special leave to appeal to the High Court from the Court of Criminal Appeal’s decision was referred to the Full Court. Today, the High Court granted special leave on three grounds of appeal, and a majority of the Court allowed the appeal, holding that the Court of Criminal Appeal had incorrectly concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own assessment of the evidence. The High Court held that it was critical for the Court of Criminal Appeal to determine the date at which it was alleged, in the evidence, that SKA committed the offences the subject of counts four and five. The Court of Criminal Appeal’s failure to do so led the Court into error when considering the sufficiency of evidence to support the jury’s verdict.

The High Court also refused special leave to appeal on two grounds of appeal, holding that the Court of Criminal Appeal was not in error in not viewing a video recording of an interview between the child and the police, instead relying on a transcript of the recording.

The order of the Court of Criminal Appeal dismissing SKA’s appeal against conviction to that Court was set aside and the matter was remitted to the Court of Criminal Appeal for rehearing.

Roach v The Queen [2011] HCA 12

Mr Roach was convicted by a jury of assault occasioning bodily harm, arising out of an alleged incident with the complainant, a woman with whom he had been in an intermittent relationship for two and a half years. Mr Roach had telephoned the complainant asking if he could visit her. Shortly thereafter he arrived at the complainant’s house, and immediately went to get a drink from the refrigerator. When the complainant suggested that he ought not to help himself before being invited to do so, Mr Roach allegedly punched her face and arms, then pulled on her left arm, which he had previously injured. He then spoke aggressively to her, before punching her another eight times.

At Mr Roach’s trial in the District Court of Queensland, the trial judge admitted evidence of other assaults by Mr Roach upon the complainant in the course of their relationship. Section 132B of the Evidence Act 1977 (Qld) (“the Act”) applies, inter alia, to proceedings for assault occasioning bodily harm and states that “[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.”

In the Court of Appeal Mr Roach argued that, in considering whether to admit such evidence under s 132B, the trial judge ought not to admit that evidence if, in the context of the prosecution case, there was a reasonable view of that evidence consistent with innocence (“the rule in Pfennig“). The rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused (“propensity evidence”), and applies at common law to propensity evidence as a measure of the probative force of that evidence. Mr Roach contended alternatively that if the evidence were admitted, the jury ought to have been directed that they could not rely upon it unless satisfied of its truth beyond reasonable doubt. The Court of Appeal rejected both arguments and dismissed the appeal. It held that the sole test for admissibility under s 132B of the Act is relevance, and that the rule in Pfennig had no application.

In the High Court, Mr Roach advanced the same arguments. He argued further, and in the alternative, that the rule in Pfennig ought to be considered and applied in connection with s 130 of the Act. Section 130 provides that nothing in the Act “derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

Today the High Court dismissed the appeal. It observed that s 132B has a potentially wide operation not restricted to similar fact evidence tendered to prove propensity on the part of the accused, and that the sole test of admissibility for evidence of domestic violence in the history of a relationship is relevance. The Court observed that, while the rule in Pfennig addressed the same factors as are relevant to a court’s discretion to exclude evidence on the basis of unfairness, the rule in Pfennig was of the nature of an exclusionary rule of law rather than a discretion. Therefore the rule could not be imported into the power referred to in s 130, which is discretionary in nature.

In relation to the adequacy of the directions to the jury, the High Court held that the directions explaining the limited use to which the evidence of the history of the relationship between Mr Roach and the complainant may be put were sufficient, and that it was neither necessary nor appropriate for any direction to be given about the standard of proof to be applied to that evidence. Contrary to the view taken in the Court of Appeal, the High Court observed that there was a dual purpose for which the evidence was tendered: evidence both of the alleged offence and as “relationship” evidence.

Kuhl v Zurich Financial Services Australia Ltd & Anor  [2011] HCA 11

Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and held that Zurich Financial Services Australia Ltd (“Zurich”) was liable in negligence to Mr Geoffrey Lawrence Kuhl.

In 1999 Mr Kuhl, an employee of Transfield Construction Pty Ltd, suffered injuries on a work site when his left arm was sucked into a vacuum hose after the hose was passed to him by another person. Mr Kuhl commenced an action in negligence against Zurich and QBE Insurance Services Australia Ltd (“QBE”) in the District Court of Western Australia. Mr Kuhl alleged that WOMA (Australia) Pty Ltd (“WOMA”) and Hydrosweep Pty Ltd (“Hydrosweep”) were liable in negligence for his injuries. Zurich and QBE were the respective insurers of these two companies.

The District Court held that neither Zurich nor QBE were liable to Mr Kuhl in negligence. Mr Kuhl appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on the basis that neither Zurich nor QBE owed Mr Kuhl the duties of care contended for, and that there was no breach of duty in any event.

A majority of the High Court allowed the appeal, and made an order setting aside the orders of the Court of Appeal and the District Court in respect of Zurich and entering judgment against Zurich in the amount of $265,000. The High Court held that WOMA had a duty of care to users of the hose which extended to risks in relation to the passing of the hose. The Court further held that WOMA had breached that duty by failing to issue instructions not to pass the hose while the power was turned on and by failing to install a “break box” close to the head of the hose which could be employed to break the vacuum pressure, and that each of these breaches had caused Mr Kuhl’s injuries. The High Court also held that the trial judge erred in drawing an inference adverse to Mr Kuhl, on the basis of Mr Kuhl’s oral evidence, that some action by him subsequent to the passing of the hose caused his arm to be drawn in to the hose. The nature of this error was the trial judge’s failure to give reasons for his inference and his failure to give Mr Kuhl an opportunity to address the point.

The High Court upheld the orders of the District Court and the Court of Appeal in favour of QBE.