GAX v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on unreasonable or insupportable jury verdicts. The appellant was convicted of aggravated indecent dealing with a child and acquitted of two other counts of the same offence. A majority of the QCA (Atkinson J, Morrison JA agreeing) rejected his appeal against that conviction, in which he contended that the guilty verdict was inconsistent with the not guilty verdicts for the other counts. Before the High Court, the appellant argued that the QCA majority failed to make an independent assessment of the evidence in determining that it was open to the jury to convict him, and that the majority erred in concluding that the verdict was not unreasonable (see at [21]–[22).

The High Court unanimously allowed the appeal. The plurality judges (Bell, Gageler, Nettle and Gordon JJ) noted that there was ‘force’ to the appellant’s arguments that the lead judgment of Atkinson J did not disclose her Honour’s own assessment of the sufficiency and quality of the evidence (at [25]). The complainant’s statement that the appellant’s ‘fingers were near [her] vagina’ was, as a question of law, evidence of an indecent dealing, while the issue of the unreasonable verdict was one of fact, which required the QCA to assess whether it was open to the jury to be satisfied of the appellant’s guilt: Atkinson J’s reasoning noted that the jury had been entitled to reject the possibility of that being a reconstructed memory of the complainant’s (on which, see [18]) and took that into account in identifying a reason for the different verdicts, but it was ‘less clear’ that that was ‘an independently formed conclusion about the capacity of the evidence to exclude the possibility of reconstruction’ (at [25]).

Given the shortness of the trial and the parties agreement that any deficiency in the QCA majority analysis should not be remitted to the QCA but rather resolved by the High Court, the plurality noted that the interests of justice favour the Court deciding the question here. After rejecting the appellant’s contention, made in the courts below, that the prosecution failed to exclude the possibility of collusion linked to a property division and spousal maintenance claim (at [27]), the plurality held that while the complainant’s evidence allowed an inference that there had been indecent touching, the real possibility that that evidence was a reconstruction rather than an actual memory could not be excluded beyond reasonable doubt: her evidence on not knowing what had happened at the time, and that she was asleep and found out what happened later suggested a reconstruction, as were inconsistencies in accounts of various witnesses on the state of the complainant’s underwear (at [29]–[30]). Consequently, the plurality allowed the appeal, set aside the order of the QCA and ordered that that appeal be allowed, the conviction quashed and a verdict of acquittal entered.

Edelman J agreed with the reasons of the plurality that the verdict was unreasonable in that it was not open to the jury to conclude that count three was proved beyond reasonable doubt, and thus agreed that the appeal should be allowed on ground two. His Honour stated that, contra the plurality’s approach, it was unnecessary to consider the first ground of appeal: ‘[a]s the joint judgment observes, the first ground of appeal is arid. It serves no purpose in circumstances where both parties accept that there is no basis to remit this matter to the Court of Appeal’ (at [35]). Edelman J added two observations on why, if it were necessary to decide that ground, he would have dismissed it: first, that ‘there is no single, correct way in which reasons must be written’ (at [36]), and secondly, while submissions at the appellate level can be important where the reasons are said to not adequately reflect an independent assessment of the evidence, a court need not ‘disclose every aspect of the thought process’ leading to its conclusions independently of the way in which the case was argued (see at [37]ff). Here, contrary to the appellant’s submission, Atkinson J dealt with the unreasonableness and inconsistent verdicts in a compendious way (see at [38]ff).

High Court Judgment [2017] HCA 25 21 June 2017
Result Appeal allowed
High Court Documents GAX v The Queen
Full Court Hearing [2017] HCATrans 96  5 May 2017
Special Leave Hearing [2016] HCATrans 304 16 December 2016
Appeal from QCA [2016] QCA 189 22 July 2016
Trial Judgment, QDC
Case No 187 of 2014 8 February 2016
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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