High Court of Australia Judgment Summary Notes

Edward Pollentine & Anor v The Honourable Jarrod Pieter Bleijie Attorney-General for the State of Queensland & Ors [2014] HCA 30

Today the High Court unanimously upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Q) which allows a trial judge to make directions for the indefinite detention of a person found guilty of an offence of a sexual nature committed upon or in relation to a child.

Section 18 of the Act provides that a judge presiding at the trial of a person found guilty of an offence of a sexual nature committed upon or in relation to a child may direct that two or more medical practitioners inquire as to the mental condition of the offender, and in particular whether the offender “is incapable of exercising proper control over the offender’s sexual instincts”. The section provides that if the medical practitioners report to the judge that the offender “is incapable of exercising proper control over the offender’s sexual instincts”, the judge may, either in addition to or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that the offender be detained in an institution “during Her Majesty’s pleasure”. An offender the subject of a direction to detain is not to be released until the Governor in Council is satisfied on the further report of two medical practitioners that it “is expedient to release the offender”.

In 1984 Edward Pollentine and Errol George Radan each pleaded guilty in the District Court of Queensland of sexual offences committed against children. In each case, on the report of two medical practitioners, the District Court declared that Mr Pollentine and Mr Radan were incapable of exercising proper control over their sexual instincts and directed that they be detained in an institution during Her Majesty’s pleasure. Mr Pollentine and Mr Radan brought proceedings in the original jurisdiction of the High Court challenging the validity of s 18 of the Act on the ground that it was repugnant to or incompatible with the institutional integrity of the District Court, thereby infringing Ch III of the Constitution.

The High Court upheld the validity of the provision. The Court held that while a court may direct the detention but not the release of an offender under s 18, the court has discretion whether to direct detention. Furthermore, release of an offender is not subject to the unconfined discretion of the Executive and does not lack sufficient safeguards. Rather, a decision to release is dependent upon medical opinion about the risk of an offender reoffending, and the decision is subject to judicial review. The Court held that the provision is not repugnant to or incompatible with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.

 Anthony Charles Honeysett v The Queen [2014] HCA 29

Today the High Court unanimously allowed an appeal brought by Anthony Charles Honeysett against his conviction for armed robbery.

In 2011, Mr Honeysett was convicted following a trial by jury in the District Court of New South Wales of the armed robbery of an employee of a suburban hotel. The robbery was recorded by closed-circuit television cameras (“CCTV”). The head and face of one of the robbers (“Offender One”) was covered, as was the remainder of Offender One’s body, save for a small gap between sleeve and glove. At trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to Mr Honeysett and Offender One. Professor Henneberg’s identification of these characteristics was based on looking at the CCTV footage of the robbery and at images of Mr Honeysett taken while he was in police custody.

Mr Honeysett appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales, submitting that Professor Henneberg’s evidence was inadmissible evidence of opinion. The Court of Criminal Appeal agreed with the trial judge that Professor Henneberg’s evidence was admissible because it was evidence of an opinion that was wholly or substantially based on his “specialised knowledge” within the meaning of s 79(1) of the Evidence Act 1995 (NSW). The Court accepted that Professor Henneberg’s specialised knowledge was based on his study of anatomy and his experience in viewing CCTV images.

By special leave, Mr Honeysett appealed to the High Court. On the hearing of the appeal, the prosecution did not maintain that Professor Henneberg had specialised knowledge based on his experience in viewing CCTV images. The prosecution relied solely on Professor Henneberg’s knowledge of anatomy. The Court held that Professor Henneberg’s opinion was not based wholly or substantially on his knowledge of anatomy: his opinion regarding each of the characteristics of Offender One was based on his subjective impression of what he saw when he looked at the images. As Professor Henneberg’s opinion did not fall within the exception in s 79(1), the Court held that it was an error of law to admit the evidence. The Court quashed Mr Honeysett’s conviction and ordered a new trial.

Daniel Glenn Fitzgerald v The Queen [2014] HCA 28

On 19 June 2014, the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of South Australia, which had upheld the appellant’s convictions for murder and aggravated causing serious harm with intent to cause serious harm contrary to ss 11 and 23(1) respectively of the Criminal Law Consolidation Act 1935 (SA). The High Court allowed the appeal, quashed the appellant’s convictions and directed that a judgment and verdict of acquittal be entered. Today, the High Court delivered reasons for making those orders.

On 19 June 2011, a group of men forced their way into a house in Elizabeth South in South Australia and attacked two of the occupants with weapons including a gardening fork and a pole. One victim died four days after the attack and another sustained serious brain injuries. After a trial before a judge and jury in the Supreme Court of South Australia, the appellant was convicted and was sentenced to a term of life imprisonment with a non-parole period of 20 years.

At the appellant’s trial, the prosecution contended that the appellant was a member of the group that had forced entry into the house armed with weapons and was a party to a common plan to cause grievous bodily harm to persons inside the house. There was no direct evidence that the appellant inflicted harm on the deceased or the other victim. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish the appellant’s involvement in the attack. The prosecution’s circumstantial case was that the DNA in the sample derived from the appellant’s blood and was transferred by him to the didgeridoo at the time of the attack. The appellant argued that alternative hypotheses consistent with his innocence were open on the evidence. One such hypothesis was that a member of the group who was present at the crime scene had transferred the appellant’s DNA onto the didgeridoo, after the two men shook hands the night before the attack.

The appellant appealed unsuccessfully against his convictions to the Court of Criminal Appeal, arguing that the verdicts were unreasonable and could not be supported by the evidence. By special leave, the appellant appealed to the High Court.

The High Court unanimously held that the prosecution’s main contention, that the appellant’s DNA in the sample obtained from the didgeridoo derived from his blood, was not made out beyond reasonable doubt. Further, the recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. The Court held that it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt. As the evidence was not capable of supporting the appellant’s conviction for either offence, no question of an order for a new trial arose.