The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia regarding the principles governing the doctrine of part performance (namely, when an otherwise unenforceable oral contract over land can be recognised by the court because of acts of part performance of the agreement, so as to support an award of specific performance). The question raised was whether the requirements of the doctrine of part performance should be relaxed in line with the liberal test proposed by the House of Lords in Steadman v Steadman  AC 536, which merely required that the acts pointed on the balance of probabilities to the formation of a contract. The Australian test has hitherto reflected that expressed in Maddison v Alderson (1883) 8 App Cas 467, which requires the acts of part performance to be unequivocally referable to some such contract as alleged. The High Court confirmed that the Australian position remains the same, and declined to adopt Steadman v Steadman.
The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.
In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.
The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal. Continue reading
In the middle of Wednesday’s criminal appeal decision by the High Court, The Queen v Dennis Bauer (a pseudonym)  HCA 40 is the following remarkable paragraph:
[P]revious decisions of this Court have left unclear when and if a complainant’s evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
And speak with one voice the seven justices did, issuing a unanimous joint judgment to resolve all of the many issues raised by the appeal. While unanimous joint judgments have become commonplace in the High Court of late, child sexual abuse appeals have been a notable exception, with narrowly divided decisions on the topic in 2001, 2006, 2008, 2012, 2016 and 2017, the last four with 4-3 splits.
Still more remarkable is that the Court’s new ‘one voice’ is at odds with the voices of five justices from just two years ago, including four current justices. Continue reading