The High Court has dismissed an appeal from the Supreme Court of Nauru on applicant credibility in the evaluation of a claim for refugee status. The appellant fled Iran, arrived on Christmas Island and was transferred by the Australian Government to the Republic of Nauru in 2014. In the course of his transfer interview, he stated that he had been subject to multiple instances of domestic violence from his alcoholic and drug-addicted father, who forced the appellant to work to support his addictions, and whom he feared would kill him if he was returned to Iran (at [2]). The appellant claimed refugee status on the basis that, if returned to Iran, he would be persecuted by the government due to his association with and financial support for his father, whose alcohol and drug-addictions were contrary to Sharia law, and further that his father had connections with the police and paramilitary groups which he might use to find and harm the appellant (at [5]ff).

The Secretary of the Department of Justice and Border Control determined that the appellant was not a refugee and not owed complementary protection: the Secretary did not accept that the appellant’s father was a Continue reading →

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on the assessment of evidence and procedural fairness in refugee determination processing. The appellant claimed refugee status on the basis of his affiliation with the Bangladesh Nationalist Party (BNP) and his actual or imputed opposition to the Awami League, claiming that, after leaving the BNP for several reasons, including the ‘anarchy’ of violent clashes, he came under pressure from the Awami League to join them (at [2]–[3]). In March 2015, the Nauruan Secretary of the Department of Justice and Border Control rejected his claim for protection, and on review the Refugee Status Review Tribunal affirmed that decision, finding that the appellant had not suffered harm amounting to persecution, and that his fear of future persecution was not well founded, and, even if it were, that threat would be localised to the suburb of Dhaka from which he fled (at [4]).

After the NRSC affirmed that decision, the appellant appealed to the High Court, contending that the NRSC erred in failing to find that the Tribunal failed to assess the relevant evidence of assaults by the Awami League against people who refused to join them, and failed to give the appellant the opportunity to ascertain or comment on whether he was a formal member of the BNP, contrary to the principles of natural justice (at [5]). Continue reading →

The High Court has dismissed an appeal concerning evidence of other misconduct in a historic child sexual abuse prosecution. The accused, aged 58, was convicted of three sexual offences against his younger sister (by two years and ten months): carnal knowledge when the accused was 17 and the complainant was 14; rape when the accused was 28 and the complainant was 25 and a second rape when the accused was 29 and the complainant was 26. At the trial, the prosecution also presented evidence of other sexual incidents, including in a bathtub when the accused was 6 and the complainant was 3; in an implement shed when the accused was 8 and the complainant was 5; in a bedroom when the accused was 9 and the complainant was 6; in a shearing shed when the accused was around 10 and the complainant was around 7; and persistent sexual offending when the accused was aged 18 to 20 and the complainant was aged 15 to 17. The accused was originally convicted of offences in relation to the shearing shed and the persistent sexual offending, but these were quashed by the Full Court of the South Australian Supreme Court on the grounds that the accused was too young to be criminally responsible for the shearing shed incident and the evidence of the persistent sexual offending was too imprecise to support a conviction for that offence. The Full Court nevertheless upheld the accused’s convictions for carnal knowledge and two rapes.

The High Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously dismissed the accused’s argument that he should be retried on the remaining convictions because the prosecution offered evidence of the other uncharged (or charged, but incapable of sustaining a guilty verdict) incidents. The joint judgment noted (at [17]) that the Court’s recent ruling in Bauer v The Queen means that evidence of uncharged acts involving the complainant and the accused ‘will commonly have very high probative value as circumstantial evidence of the accused’s propensity to act on his or her sexual attraction to the complainant’; however, despite originally asking to use the evidence in this way, the prosecution in this case did not use the evidence for that purpose at the trial. The probative value of such ‘non-propensity’ evidence – to place otherwise inexplicable evidence in context; or to explain the complainant’s or accused’s conduct – ‘lies in its capacity to assist in evaluating the evidence of the offence’, while its prejudicial effect ‘is concerned is the risk that the jury will make some improper use of the evidence’ ([19]). There is seldom such a risk when the evidence is sourced from the complainant, especially where the jury is carefully directed on use ([20]) and there is no logical reason why the length of time since the alleged events will increase this risk ([21]).

The joint judgment held that the evidence offered to support the count of persistent sexual abuse, although inadequate for that purpose, was important to the evaluation of the two counts of rape. Continue reading →