Roach v The Queen [2011] HCA 12

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

KERRY RAYMOND ROACH APPELLANT

AND

THE QUEEN RESPONDENT

Roach v The Queen [2011] HCA 12

4 May 2011

B41/2010

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

M J Byrne QC with H C Fong and C W Heaton for the appellant (instructed by Legal Aid Queensland)

A W Moynihan SC with A D Anderson for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Roach v The Queen

Criminal law – Evidence – Propensity evidence – Admissibility and relevance – Where appellant charged with assault occasioning bodily harm – Where trial judge admitted evidence of other assaults by appellant upon complainant during their relationship pursuant to s 132B of Evidence Act 1977 (Q) ("Act") making admissible relevant evidence of history of domestic relationship – Where s 130 of Act preserved trial judge's discretion to exclude evidence where admission would be unfair to accused – Whether rule in Pfennig v The Queen (1995) 182 CLR 461 to be applied in determining admissibility under s 132B or exercising discretion under s 130 – If evidence admitted, whether jury ought to have been directed they could not rely upon evidence unless satisfied of its truth beyond reasonable doubt.

Words and phrases – "domestic violence", "prejudicial", "probative", "propensity", "relationship evidence", "unfairness".

Evidence Act 1977 (Q), ss 130, 132B.

1. FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ. The appellant was convicted by a jury of one count of assault occasioning bodily harm[1], following a trial in the District Court of Queensland. The appellant and the complainant had been in a sexual relationship for some two and a half years prior to the alleged assault, although the relationship was intermittent. For part of that period the appellant was the complainant's carer. The complainant suffered from a number of conditions, including cirrhosis of the liver, drug dependence and depression. 2. The appellant and the complainant were also somewhat itinerant. At the time of the alleged offence, April 2006, the complainant lived alone in a unit in the suburb of New Farm in Brisbane. The appellant was visiting her when the alleged offence occurred. 3. The circumstances of the offence, as given in evidence by the complainant and summarised by Holmes JA in the Court of Appeal, were as follows[2]: