Collins v The Queen [2018] HCA 18

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ

JOHN COLLINS APPELLANT

AND

THE QUEEN RESPONDENT

Collins v The Queen [2018] HCA 18 9 May 2018 B68/2017

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland dated 2 June 2017 and in lieu thereof order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's convictions and sentences be quashed; and

(c) a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

P J Callaghan SC with D K Fuller for the appellant (instructed by Legal Aid Queensland)

M R Byrne QC for the respondent (instructed by 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

Collins v The Queen

Criminal law – Appeal against convictions – Jury direction – Prior inconsistent statement – Where appellant indicted for indecent assault, aggravated indecent assault and rape – Where consent main issue at trial – Where complainant made preliminary complaints to mother and others – Where mother gave evidence at committal hearing – Where mother gave different account at trial – Where trial judge directed jury committal evidence could only be used to assess mother's credibility – Where mother confirmed at trial she had given that evidence at committal and her memory was better at committal – Whether mother actually adopted committal evidence – Whether prior inconsistent statement available to jury to assess complainant's credibility – Whether trial judge misdirected jury.

Criminal law – Appeal against convictions – Application of proviso – Where Court of Appeal found erroneous jury direction – Where prosecution disavowed reliance on proviso – Where Court of Appeal applied proviso without notice and notwithstanding disavowal – Whether Court of Appeal bound to put appellant on notice of possibility of applying proviso.