Judgments this week from the High Court of Australia

The High Court will deliver judgment in three cases this week.

On Wednesday, 13 August 2014 the Court will deliver judgment in Honeysett v The Queen.  In this case the accused was convicted of armed robbery. The Crown adduced evidence from a “forensic anatomist” who compared images of the offender taken from CCTV footage of the robbery with police photographs of the accused.  The expert gave an anatomical description of the offender based on the CCTV by reference to eight features, including that he had a slim body build, a well-bent small of the back, sort hair and a head that was somewhat elongated rather than round.  The expert also gave evidence that the accused also shared the eight anatomical features identified in the offender.  He also gave evidence that he was unable to discern any differences between the accused and the offender.  At issue in the appeal is the admissibility of that evidence as “expert opinion” in accordance with section 79 of the Evidence Act 1995.

Also on Wednesday the Court will deliver judgment in Fitzgerald v The Queen.  At the conclusion of the hearing of the appeal the Court adjourned for four minutes before allowing the appeal and entering a verdict of acquittal, with reasons to be published. It is those reasons that will be delivered on Wednesday.  In this case the appellant was convicted of a number of offences arising from an attack by a large number of men in which one person was killed and another seriously injured.  None of the eyewitnesses to the attack identified the appellant as being present.  His conviction was based upon evidence that his DNA was found on a didgeridoo that had been moved within the house during the attack, along with evidence that he had never previously been to the house.  At issue in the appeal is whether this evidence was sufficient to establish beyond reasonable doubt, that he was one of the attackers.  The South Australian Court of Criminal Appeal held that this hypothesis depended upon the occurrence of a succession of unlikely events.  The appellant’s argument was, in essence, that the Crown had failed to exclude a reasonable hypothesis consistent with his innocence, namely that the presence of his DNA on the didgeridoo could be explained by secondary transfer from a co-accused. 

Finally, on Thursday, 14 August 2014 the Court will deliver judgment in Pollentinev The Honourable Jarrod Pieter Bleijie Attorney-General for the State of Queensland.  This case is a challenge to the Queensland regime for the indefinite detention “during Her Majesty’s pleasure” of persons convicted of sexual offences against children under 17 years of age who are found to be incapable of exercising proper control over their sexual instincts.  The challenge is yet another attempt to invoke the Kable principle to challenge indefinite detention regimes.