Orreal v The Queen [2021] HCATrans 71 (16 April 2021)

Last Updated: 11 August 2023

[2021] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B58 of 2020

B e t w e e n -

MALCOLM LAURENCE ORREAL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 9.32 AM

Copyright in the High Court of Australia
MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior, MR P.F. RICHARDS. for the applicant in this matter. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC: I appear with my learned friend, MR C.W. WALLIS, for the respondent. (instructed by the Office of the Director of Public Prosecutions (QLD))

GAGELER J: Mr Heaton, you can stay on your feet.

MR HEATON: Your Honours, the issue in this case turns upon not an erroneous understanding of the applicable principles but what is said to be a misapplication of those well‑established principles to the particular circumstances of this case. The essential thrust of the argument of the applicant is that the effect of the evidence – the impugned evidence, was such as to have had a prejudicial effect. Essentially, the difference in the ‑ ‑ ‑

EDELMAN J: Mr Heaton, it was common ground, was it not, that – or at least is common ground now, that the evidence was irrelevant?

MR HEATON: Yes.

EDELMAN J: Why was not that irrelevant evidence, evidence that could have had a very significant effect upon the jury?

MR HEATON: Because of the nature of the evidence it was irrelevant because it was not probative of any issue in the trial. It was not inherently prejudicial in its effect. The prejudice, if there was any, was said to arise from the possibility of a link between the acquisition of the herpes virus by the complainant as a result of the sexual activity that she alleged occurred on this one occasion with the applicant, and it was in relation to that particular issue that the submissions of defence counsel, the submissions of the Crown and, indeed, the directions of the judge completely neutralised the effect of the evidence.

EDELMAN J: Why would there not be at the very least a real prospect that a jury could reason on the basis that she is exposed to the herpes virus, the accused is exposed or has the herpes virus present in his blood, therefore, there must have been sexual contact between the two?

MR HEATON: Again, because of the way that the nature of this evidence in the context of this trial. As I said, this was not evidence which was inherently prejudicial. The evidence that was led from the doctor was that approximately 80 per cent of the population would test positive to this virus.

EDELMAN J: That was the adult population?

MR HEATON: The adult population. Even taking that limitation on it, the effect of the evidence was that this is very common. The fact that there was evidence led ‑ ‑ ‑

EDELMAN J: How old was she when ‑ ‑ ‑

MR HEATON: She was 12 at the time that the offence was said to have taken place.

EDELMAN J: The evidence was not that it was common in 12-year-old girls.

MR HEATON: No, it was not, but common in the population, the implication being that it is common in the population but it is easily transferrable. That, I guess, then brings into, then, the role of the evidence of the contact that she had had with the 15-year-old boy, which demonstrated that, perhaps unusually, this 12-year-old was someone who had, at least on that occasion, engaged in sexual activity.

Indeed, the way in which the evidence unfolded very clearly demonstrated the possibility the evidence that the HSV-1 virus was acquired as a result of that contact. Indeed, the Crown Prosecutor specifically alerted the jury to that very possibility and, in so doing, denying any prejudicial effect from this particular evidence. Indeed, that was ultimately the conclusion which Justice Bond, with whom Justice Mullins agreed, came to in relation to the effect of this evidence.

So the Court undertook the task that was required of them, considered the nature and effect of the error in the context of the evidence in the trial, and concluded that it could not have impacted on the assessment of the credibility and reliability of the complainant.

And therein lay the fundamental difference between Justice McMurdo in his dissenting view. It was simply that conclusion as to the effect of this impugned evidence in the context of this trial. We say that that was perfectly open in the discretion of the individual judges in this case to apply the well-established principles in their assessment of the evidence in that way.

GAGELER J: I think we understand that point, thank you. There will be a grant of special leave to appeal in this matter. It is a half-day case or less, I think, gentlemen?

MR HEATON: I would have thought so, yes.

GAGELER J: Yes. Thank you.

AT 9.39 AM THE MATTER WAS ADJOURNED