Orreal v The Queen [2021] HCA 44

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

KEANE, GORDON, STEWARD AND GLEESON JJ

MALCOLM LAURENCE ORREAL APPELLANT

AND

THE QUEEN RESPONDENT

Orreal v The Queen

[2021] HCA 44

Date of Hearing: 11 November 2021

Date of Judgment: 16 December 2021

B25/2021

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 8 May 2020 and, in its place, order that:

(a) the appeal be allowed;

(b) the appellant's convictions be set aside; and

(c) a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

S J Keim SC with P F Richards for the appellant (instructed by Legal Aid Queensland)

C W Heaton QC with C W Wallis 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

Orreal v The Queen

Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape – Where evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 ("impugned evidence") – Where impugned evidence irrelevant and inadmissible – Where Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety – Where Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury's assessment of reliability or credibility of complainant – Whether no substantial miscarriage of justice had actually occurred.

Words and phrases – "contested credibility", "jury's assessment of the reliability or credibility of the complainant", "miscarriage of justice", "natural limitations", "nature and effect of the error", "proviso", "substantial miscarriage of justice".