High Court of Australia

  • Dansie v The Queen [2022] HCA 25 (10 August 2022) – High Court of Australia
    Adverse inferences’ – ‘Appeal against conviction’ – ‘Circumstantial case’ – ‘Drowning’ – ‘Evidence’ – ‘Independent assessment of evidence’ – ‘Inference of guilt’ – ‘Murder’ – ‘People with disability and impairment’ – ‘Reasonable hypotheses consistent with innocence’ – ‘Unreasonable verdict’ – ‘Unreasonableness ground

    Charges: Murder x 1.

    Proceedings: Appeal against conviction.

    Facts: By special leave the defendant appealed the majority decision of the South Australian Court of Criminal Appeal (Parker and Livesey JJ, Nicholson J dissenting) to uphold his conviction following trial by judge alone (Lovell J) in the Supreme Court of South Australia for the murder of his wife. He argued that the trial judge’s verdict could not be supported having regard to the evidence.

    Following a stroke in 2005 the female victim was confined to a wheelchair and she could no longer speak. For two years before her death she had been living in a nursing home. The Crown alleged that while on an outing her husband pushed her wheelchair into a pond, resulting in her drowning. Lovell J drew inferences adverse to the appellant’s credit from the appellant's behaviour during interviews with police ‘that his relationship with his wife had changed since she had been living permanently in the nursing home, such that he had come to see her as "taking up his time" and no longer had a caring relationship with her.’ In assessing the appellant’s account of his wife’s death as implausible, Lovell J found support for the prosecution case in circumstantial evidence that he had left his watch, wallet and a spare change of clothes in the car and had done internet searches on funerals in the month before. Lovell J found 2 distinct interconnected motives, financial and relationship, concluding the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and therefore his guilt was proved beyond reasonable doubt.

    Ground: The majority in the Court of Criminal Appeal erred in how it approached the ground that the verdict was unreasonable or could not be supported having regard to the evidence. In particular, the majority misinterpreted and misapplied the approach required to be taken to that ground in accordance with M v The Queen [1994] HCA 63; (1994) 181 CLR 487 as applied in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.

    Decision and reasoning: Appeal allowed, conviction set aside and the matter remitted for rehearing. Livesey J’s judgment in the Court of Criminal Appeal, with which Parker J agreed, erred. ‘What was missing from this analysis, because it had been eschewed as raising “jury” questions, was any independent consideration of whether the evidence left open reasonable hypotheses consistent with innocence’ [35].

  • Peniamina v The Queen [2020] HCA 47 (9 December 2020) – High Court of Australia
    Appeal against conviction’ – ‘Exclusion of provocation’ – ‘Murder’ – ‘Partial defence of provocation

    Charges: Murder x 1.

    Proceedings: Appeal against conviction.

    Facts: The appeal concerned the partial defence of provocation, which operates to reduce what would otherwise be murder to manslaughter, under s 304(1) of the Criminal Code (Qld). Section 304 was amended in 2011 to exclude the defence (save in circumstances of a most extreme and exceptional character) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is “based on anything” done by the deceased, or anything the accused believes the deceased has done, to end or to change the nature of the relationship or to indicate in any way that the relationship may, should or will end or change. The 2011 amendments placed the burden of proof of the defence on the accused. The issue raised by the appeal is whether in discharging this burden the appellant was required to prove that the provocation was not "based on" anything done (or believed to have been done) by the deceased to change the relationship, notwithstanding that such conduct (or believed conduct) was not the conduct that he claimed had induced his loss of self-control. The appellant killed his wife in circumstances that left it open to find he was angered by a belief that the deceased had been unfaithful and planned to leave him. But the appellant’s case was that, for the purpose of s 304(1), his loss of self-control was ’based on’ the deceased “grabbing [a] knife, threatening [him] with it and cutting his right palm.” The jury found the appellant guilty of murder. On appeal, the Queensland Court of Appeal held that the trial judge was entitled to direct the jury to consider whether the exception set out in s 304(3) excluded the availability of the partial defence under s 304(1).

    Grounds of appeal: The Court of Appeal erred in holding that the exclusion of the defence of partial provocation pursuant to the exception in s304(3) was not confined to the provocative conduct of the deceased which the defence relied upon as causative of the appellant's loss of self-control.

    Held: Appeal was allowed. The majority (Bell, Gageler and Gordon JJ) found that, correctly understood, s 304(3) excludes the defence of provocation where the accused was in a domestic relationship with the deceased and his/her loss of self-control was induced by anything done (or believed to have been done) by the deceased to change the relationship. Whether the defence does not apply is a question of law.

    Here, it was the appellant’s defence that it was the deceased’s conduct with the knife that induced his loss of self-control. There was no evidentiary foundation to suggest that the conduct with the knife was itself a thing done to change the relationship. It was therefore not open to find that the defence was excluded under s 304(3). The trial judge was wrong to direct the jury that, in addition to proving the elements of the defence, the appellant was required to prove that his loss of self-control was not based on anything done by the deceased to change the relationship.

    Note: The appellant was subsequently retried and convicted of manslaughter (the sentencing judge found that the jury accepted the partial defence of provocation, and that the appellant’s belief that the victim had been unfaithful was reasonable) and resentenced: R v Peniamina (No 2) [2021] QSC 282 (25 October 2021).
  • Roy v O’Neill [2020] HCA 45 (9 December 2020) – High Court of Australia
    Admissibility of evidence’ – ‘Domestic violence order’ – ‘Female perpetrator’ – ‘Implied licence to enter’ – ‘People affected by alcohol misuse’ – ‘Police powers’ – ‘Pro-active policing’ – ‘Whether police had any basis to request to submit to a breath test’ – ‘Whether police have powers to attend the threshold of private property to ensure compliance with a domestic violence order

    Proceedings: Appeal from the decision of the Northern Territory Court of Appeal O'Neill v Roy [2019] NTCA 8 (4 September 2019).

    Issue: Scope and limits of implied licence.

    Facts: The respondent woman was the subject of a DVO that protected her male domestic partner (Mr Johnson, the victim). The DVO contained various conditions including that she was restrained from consuming and/or being under the influence of alcohol and other intoxicating substances when in the company of the victim [2]. In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime and as part of that operation three officers from the Northern Territory Police Force visited the respondent and victim’s unit. One of the attending officers gave evidence that he had observed ‘antisocial behaviour coming from the property over the weeks prior to the operation’ [3]. One of the officers had previously observed the respondent in an intoxicated state ‘and she was in an intoxicated state every time he had dealt with her’.

    Officers approached the shared unit and observed that the respondent "appeared to be just sort of laying on the ground" through the window and called her to come to the door "for the purposes of a domestic violence order check". Officers noted that the respondent’s eyes were bloodshot, her speech was slurred and had "a very strong odour of liquor on her breath", which lead them to conduct a breath test. The respondent was taken to Katherine Watch House after testing positive to alcohol for further breath analysis.

    The apartment was accessible to the public and there were no signs suggesting the police were not welcome to approach the unit and knock on the front door. They were not asked to leave by the occupants.

    The Northern Territory Court of Appeal held that the case involved an implied licence from the occupier of the premises for visitors to be on the footpath and approach the door of the unit rather than an implied licence for a specific purpose. The respondent sought special leave to appeal. The application regards the scope of the licence. It was agreed that the content of the implied licence is determined objectively while the infringement of the implied licence is determined by reference to some subjective characterisation of purpose.

    Judgment: The Court per Kiefel CJ, Keane and Edelman JJ dismissed the appeal, having earlier granted special leave to appeal subject to noting that the proposed grounds of appeal might be reframed with greater precision HCATrans 43 (20 March 2020). Keane and Edelman JJ observed that the making of a coercive direction is beyond the scope of the licence generally implied by the law to enter the curtilage of a property but that there was no need for a coercive direction here as Ms Roy complied with the request for a breath test. No question of coercion would arise unless and until Ms Roy refused to consent to provide a breath test, and Constable Elliott decided to invoke the power conferred by reg 6(1)(a). [93]

    Kiefel CJ held that either of two lawful purposes (to check compliance with a domestic violence order where Ms Roy was known to be invariably intoxicated or to ascertain the state of Ms Roy and Mr Johnson by way of a proactive domestic violence check) was sufficient for the law to imply a licence for Constable Elliott to enter the dwelling unit in question. He was not a trespasser. The evidence of the results of the breath test was admissible.

  • Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (11 October 2017) – High Court of Australia
    Crown appeal against sentence’ – ‘Current sentencing practice’ – ‘Instinctive synthesis’ – ‘Manifestly inadequate’ – ‘Sentencing’ – ‘Worst category of case

    Charges: Incest x 2; Sexual penetration of a child under 16 x 1; Indecent assault x 1.

    Appeal type: Crown appeal against sentence.

    Facts: The charge subject of the appeal was one count of incest. The appellant pleaded guilty, and was sentenced to 3 years and 6 months’ imprisonment. The total head sentence was 5 years’ and 6 months’ imprisonment with a non-parole period of 3 years ([12], [23]).

    Section 5(2)(b) of the Sentencing Act 1991 (Vic) provided that the court must have regard to current sentencing practices when sentencing an offender. The Court of Appeal stated that ‘but for the constraints of current sentencing practice’, it would have imposed a longer sentence ([33]).

    Issues: Whether the sentence for the charge of incest was manifestly inadequate. In resolving this question, the High Court clarified the relevance of ‘current sentencing practices’ to sentencing.

    Decision and Reasoning: The appeal was allowed, and the matter was remitted to the Victorian Court of Appeal for determination of the appeal against sentence ([77]). The High Court (Kiefel CJ, Bell and Keane JJ, Gageler and Gordon JJ agreeing) held that the Court of Appeal erred by treating the range established by current sentencing practices as decisive of the appeal before it ([2]).

    Kiefel CJ, Bell and Hayne JJ stated: ‘the terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor’ ([9]).

    Further, their Honours stated at [50]:

    section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.

  • Hughes v The Queen [2017] HCA 20 (14 June 2017) – High Court of Australia
    Meaning of “significant probative value”’ – ‘Tendency evidence

    Charges: Sexual offences against underage girls x 11.

    Appeal type: Appeal against conviction.

    Facts: The defendant was Robert Hughes, the star of the TV show Hey Dad! The 11 complainants were friends of his daughters or workers on the set. The prosecution sought to adduce the evidence of each of the 11 complainants to support each of the other counts. The prosecution sought to prove tendencies of ‘having a sexual interest in female children under 16 years of age’ and ‘using his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them’ ([3]). The tendency evidence was admitted, and the appellant was convicted ([8]).

    Issues: Whether tendency evidence is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. This issue had been the subject of diverging lines of authority between the Victorian and New South Wales Court of Appeal.

    Decision and Reasoning: The High Court (4:3) dismissed the appeal.

    The majority (Kiefel CJ, Bell, Keane and Edelman JJ) held that the evidence was admissible. The majority identified that there is likely to be a high degree of probative value when (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged ([41]).

    The majority endorsed the test for “significant probative value” posed in Ford, that ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged ([40]). The majority at [40] added the following qualification:

    it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

    Gageler, Nettle and Gordon JJ dissented.

    Gageler J advocated for a more conservative approach: his Honour argued that admitting all the evidence risks the jury placing too much emphasis on the series of allegations, and not assessing each charge individually ([109]).

    Nettle J emphasised that the fact that an accused has committed one sexual offence against a child is not, without more, sufficiently probative of the accused committing another sexual offence against a child ([158]). Something more is required, for example a similarity in the relationship between the alleged victims, a connection between the details and circumstances of each offence, or a system of offending ([158]). Nettle J also reiterated the dangers in admitting tendency evidence ([174]).

    Gordon J agreed with Gageler and Nettle JJ and set out her Honour’s own set of principles at [216].

  • The Queen v Kilic [2016] HCA 48 (7 December 2016) – High Court of Australia
    Appeal against sentence’ – ‘Appeal allowed’ – ‘Dousing with petrol and setting alight’ – ‘Drug misuse’ – ‘Intentionally causing serious injury’ – ‘Methylamphetamine’ – ‘Pregnancy’ – ‘Sentencing’ – ‘Worst category of offence

    Charges: Intentionally causing serious injury x 1; Using a prohibited weapon x 1; Dealing with suspected proceeds of crime x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The defendant and victim were in a relationship; the victim was 12 weeks’ pregnant with the defendant’s child ([5]). The defendant pleaded guilty to dousing the victim with petrol and setting her alight ([10]). The victim’s injuries were ‘horrendous’ ([11]), and she terminated her pregnancy ([13]). The sentencing judge said that he found it hard to recall a more serious example of the charge in his 38 years of working in criminal law ([14]). The sentencing judge imposed a head sentence of 15 years with a non-parole period of 11 years ([1]). The Court of Appeal allowed the defendant’s appeal against sentence on the basis that there was ‘such a disparity between the sentence imposed and current sentencing practice’ ([1]).

    Issues: Whether the Court of Appeal erred in holding that the sentence was manifestly excessive.

    Decision and Reasoning: The High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) overturned the Court of Appeal’s decision and reinstated the original sentence. The High Court discussed two aspects of the Court of Appeal’s decision: first, the Court of Appeal employing the term ‘worst category’ of offending; and second, the Court of Appeal’s interpretation of ‘current sentencing practice’.

    First, the High Court held that it is an error to describe offences as being within ‘the worst category of cases’ if the offence does not warrant the maximum penalty ([19]), as the term is likely to cause confusion ([17]-[20]).

    Second, the High Court remarked that ‘current sentencing practice’ is likely to change over time, ‘current sentencing practices for offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’ [21]. The High Court found that the cases were too few to establish a pattern, one case was 12 years old, and most did not occur in a domestic violence context ([25]-[31]). The High Court said that ‘violence perpetrated in the course of a domestic relationship against the offender's female partner … involve the abuse of a relationship of trust’, and such violence ‘must steadfastly be deterred’ ([28]). This was a distinguishing factor from cases with comparable serious injuries ([28]).

  • Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia
    Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Antecedents and personal circumstances’ – ‘Denunciation’ – ‘Deterrence’ – ‘Manslaughter’ – ‘Sentencing’ – ‘Social disadvantage’ – ‘Traditional Aboriginal and Torres Strait Islander punishment

    Charge/s: Manslaughter

    Appeal Type: Appeal against sentence.

    Facts: The appellant, an Aboriginal man, pleaded guilty to the manslaughter of his de facto spouse. He was sentenced to five years and three months’ imprisonment with a non-parole period of three years and three months’. The DPP appealed to the Court of Appeal on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the appeal and resentenced the appellant to seven years and nine months’ imprisonment with the same parole eligibility conditions. The appellant and the deceased had been in a relationship for approximately 16 years. On the day the deceased was killed, the appellant and the deceased spent the afternoon at a local tavern and both became intoxicated. After returning home, an argument ensued and the appellant assaulted the deceased in a prolonged and brutal way. He threw the deceased about the room, rammed her head into walls and repeatedly punched her on the face and head. There was a history of significant domestic violence in the relationship, including a conviction for grievous bodily harm for which the appellant was sentenced to 12 months’ imprisonment (conditionally suspended) as well as a conviction for common assault. The appellant was subject to a lifetime violence restraining order in favour of the deceased which prohibited him from having any contact with her. However, this order had been ignored by both parties and the relationship had continued.

    Issue/s: Some of the issues concerned –

    1. Whether the Court of Appeal incorrectly applied the principles which govern manifest inadequacy of a sentence.
    2. Whether the Court of Appeal erred by failing to pay sufficient regard to the appellant’s antecedents and personal circumstances, in particular the systemic deprivation and disadvantage (including endemic alcohol abuse which is prevalent in Aboriginal and Torres Strait Islander communities) that the appellant faced.

    Decision and Reasoning: The appeal was dismissed by majority (Bell J dissenting).

    1. The joint majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) found no error in the Court’s approach to the issue of manifest inadequacy. In the Court of Appeal, McLure P made express reference to the gross over-representation of Aboriginal people in the criminal justice system (particularly in relation to manslaughter) which is directly related to alcohol and drug abuse. Her Honour also made reference to various ‘weighting errors’ in the sentencing at first instance. The Court held that there was no error in this approach. See in particular at [37], where the joint majority noted ‘her Honour was proceeding to make the point that, even in the context of the circumstances of social disadvantage in which domestic violence commonly occurs, the seriousness of the offence is such as to make a compelling claim on the sentencing discretion. And that is so notwithstanding that the number of Aboriginal offenders (and victims) is "grossly disproportionate".

      See also McLure P’s statement quoted at [41] – "In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously". The joint majority approved these remarks at [42] – ‘The passage of time has not lessened the force of that statement. While the appellant's offence may not have been in the very worst category of offences of manslaughter, it is not easy to think of worse examples. Given that the maximum available sentence was 20 years imprisonment, and given the prolonged and brutal beating administered by the appellant upon his de facto spouse, a conclusion that the sentence imposed at first instance was manifestly inadequate cannot be said to have been wrong.’

    2. The appellant did not submit that ‘Aboriginality per se warrants leniency’ (see at [47]). Rather, the appellant contended that social and economic issues commonly associated with Aboriginal communities affected the appellant and that these should have been treated as mitigating factors. He also contended that he was likely to receive traditional Aboriginal and Torres Strait Islander punishment when released from prison and that he was ‘willing, and indeed anxious’ (see at [49]) to subject himself to this payback. He submitted that this should have received greater significance as a mitigating factor.

      In dismissing these arguments, the Court noted that while mitigating factors such as social disadvantage need to be afforded appropriate weight in sentencing, this cannot result in the imposition of a penalty which is disproportionate to the gravity of the offending. In particular, the Court noted at [53] – ‘To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’ and ‘Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.’

      The Court also addressed the argument that general deterrence has less significance in relation to crimes which are not premeditated in the context of social disadvantage. In dismissing this assertion, the Court noted that the criminal law is not limited to the ‘utilitarian value of general deterrence’ and stated that the obligation of the State is ‘to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence’ (see at [54]). Furthermore, the gravity of the offending in this case was extremely high - see at [55] –

      ‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’

      In relation to the appellant’s alcohol addiction, McLure P held that this factor would increase the weight to be given to personal deterrence and community protection. The joint majority of the High Court agreed and noted that the fact the appellant was affected by an environment of alcohol abuse should be taken into account in assessing personal moral culpability, but this has to be balanced with the seriousness of the offending. See further at [57] where the majority of the High Court said– ‘It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.’

      In relation to the relevance of traditional Aboriginal and Torres Strait Islander punishment, the High Court’s disposition was that the appellant’s willingness to submit to this punishment was not a relevant consideration in sentencing. However, the first instance judge did take it into account, which was not challenged in the Court of Appeal. While the joint majority of the High Court did not offer a conclusive opinion, they noted that the courts cannot condone the commission of an offence or ‘the pursuit of vendettas’ and held that the appellant did not suffer injustice because the prospect of traditional punishment was given only limited weight (see at [61]-[63]).

      Bell J dissented. Her Honour held that it was open to the primary judge to reach the sentence that he did, based on comparable authorities. Bell J was also critical of the practice of giving too much weight to the maximum penalty, given the wide variety of circumstances in which manslaughter convictions can arise. Her Honour stated that a sentence well short of half the maximum penalty does not of itself give rise to legal error.

  • Roach v The Queen [2011] HCA 12 (4 May 2011) – High Court of Australia (appeal from Queensland Court of Appeal)
    Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Probative value’ – ‘Propensity evidence’ – ‘Relationship evidence

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against conviction.

    Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides 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’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.

    Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.

    The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that 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. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).

    Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.

    The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:

    ‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].

    The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:

    [45] In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.

    [47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.

    [48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
  • Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009) – High Court of Australia
    Adjournments’ – ‘Amendment’ – ‘Appeal’ – ‘Case management’ – ‘Pleadings’ – ‘Practice and procedure

    Hearing: Appeal against decision to allow amendments to statement of claim.

    Facts: ANU applied for an adjournment at trial to make substantial amendments to its statement of claim against Aon. The adjournment was granted and the primary judge allowed the application to amend the statement of claim. Aon appealed against the decision.

    Decision and Reasoning: This case did not concern family violence but contained a number of relevant statements regarding adjournments. French CJ referred to the decision in Sali v SPC Ltd, which concerned the refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, the High Court held there ‘that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’’ (see [26]). Brennan, Deane and McHugh JJ went on to say:

    ‘What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources’.

    Toohey and Gaudron JJ dissented in the result but acknowledged that:

    ‘The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard’.

    In the present case, French CJ stated at [27]:

    ‘The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn’.
  • Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
    Battered woman syndrome’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Expert testimony - psychologist’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Self-defence

    Charge/s: Murder

    Appeal Type: Appeal against conviction.

    Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at [4]). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at [50]).

    The psychologist outlined the general characteristics of battered women as follows (at [51]):

    1. they are ashamed, fear telling others of their predicament and keep it secret.
    2. they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.
    3. they have an increased arousal and become acutely aware of any signal of danger from their partner.
    4. they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
    5. in severe cases, they may live with the belief that one day they will be killed by the other person.

    Issue/s: Some of the issues concerned –

    1. Provocation - Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation’ (see at [155]).
    2. Self-defence – Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence’ (see at [155]).

    Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.

    Gaudron and Gummow JJ:

    Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at [53])

    “…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at [55])

    “So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at [56])

    “…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at [60])

    Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at [239]). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.

    McHugh J did not make any comments on BWS.

    Kirby J:

    His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at [159]).

    His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at [161]).

    Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at [161]).

    Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at [167]).
  • M v M (1988) 166 CLR 69; [1988] HCA 68 (8 December 1988) – High Court of Australia
    Allegations of sexual abuse’ – ‘Custody order’ – ‘Risk’ – ‘Test to be applied’ – ‘Unacceptable risk

    Proceedings: Appeal against custody order.

    Facts: The trial judge made an order giving the wife guardianship and custody of the child. The wife alleged that the father had sexually abused the child and that the child’s welfare would be put at risk in allowing the father custody. The trial judge was not satisfied that the father had abused the child. However, His Honour considered that there was a possibility that the child had been sexually abused by the father. Accordingly, in the interests of the child, His Honour held that he should eliminate the risk of such abuse by denying access to the father. The father appealed this decision.

    Issue/s: What is the correct approach in dealing with sexual abuse allegations and unacceptable risk?

    Reasoning/Decision: The appeal was dismissed. The approach to be taken in these matters is not one of competing rights of the parents or ever purely a finding for or against either based on the evidence in support of the allegations. The approach is to determine on all of the evidence what is in the best interests of the child.

    The Court concluded and held at [25]:

    ‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm”, “an element of risk” or “an appreciable risk”, “a real possibility”, a “real risk”, and an “unacceptable risk”. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse’.

    With regards to the consideration of risk, it is in “achiev[ing] a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. A finding of sexual abuse need not be made to make a finding of unacceptable risk.

  • Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 (17 June 1970) – High Court of Australia
    Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Relationship evidence’ – ‘Relevance’ – ‘Statements made by deceased's wife charging accused with desire to kill her

    Charges: Murder.

    Appeal Type: Application for special leave to appeal against conviction.

    Facts: The facts of this case were summarised concisely by Martin CJ (with whom Pullin JA and Hall J agreed) in O’Driscoll v The State of Western Australia [2011] WASCA 175 (10 August 2011) [DT1] at [26] as follows -

    ‘[T]he appellant was convicted of the murder of his wife by shooting her in the back of the head. A critical issue at trial was whether she was deliberately shot or whether the gun had discharged by accident. The Crown led evidence that the deceased said to the accused, in the presence of other witnesses, 'I know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. These statements were admitted by the trial judge, subject to a direction that the jury should not treat them as evidence of the state of mind of the accused.


    1. Whether the statements made by the appellant’s wife were admissible.
    2. If they were admissible, whether they should have been excluded by the trial judge because their probative value was outweighed by the potential prejudice to the accused.

    Decision and Reasoning: The Court unanimously dismissed both grounds of appeal and held that the evidence was admissible.

    1. Barwick CJ noted at [3] that, ‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone.’ Evidence of the ‘nature of the current relationship between the applicant and his wife’ was relevant to the appellant’s guilt. Evidence of a ‘close affectionate relationship’ could be used by the jury to conclude that the appellant was not guilty. Evidence of hostility in the relationship could be used by the jury to conclude that the appellant’s argument that the shooting was accidental lacked credibility. His Honour did concede that if the deceased’s statements ‘had not been part of the evidence of a quarrel of a significant kind’ ([8]), they would have been inadmissible. However, in this case the statements were part of a ‘quarrel’ between the parties and were indicative, ‘of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached’ (see at [8]). More generally, his Honour concluded that ‘evidence of the relations of the accused with others’ is admissible not only in cases where it establishes motive, though this may be the most common way in which it is used. This type of evidence could also be admissible if it explains an ‘occurrence’ or assists in the choice between two explanations of an ‘occurrence’ because such evidence satisfies the test of relevance (see at [7]).

      Menzies J (with whom McTiernan J and Walsh J agreed) reached the same conclusion – ‘To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife’(see at [4]).
    2. Barwick CJ held that while the deceased’s statements were damaging to the appellant, they were not prejudicial, and showed, ‘the depths to which the relationship of the parties, as husband and wife, had sunk’ (see at [9]).
  • Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34 (30 June 1938) – High Court of Australia
    Civil cases’ – ‘Evidence’ – ‘Standard of proof

    Proceedings: Petition for divorce on the ground of adultery.

    Facts: The applicant sought a dissolution of his marriage to his wife on the ground of her adultery.

    Issue/s: What is the standard of proof required in civil matters?

    Decision and Reasoning: In explaining the civil standard of proof, Dixon J stated that ‘when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence…It cannot be found as a mere mechanical comparison of probabilities’. His Honour went on to explain that the standard is one of ‘reasonable satisfaction’:

    ‘But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency’.