Orreal v The Queen

Orreal v The Queen [2021] HCA 44
High Court of Australia
Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ
Criminal practice – appeal – majority in the Court of Appeal of the Supreme Court of Queensland (Mullins JA and Bond J, McMurdo JA dissenting) held that a miscarriage of justice had occurred but that no substantial miscarriage of justice had actually occurred for the purposes of s668E(1A) of the Criminal Code (Qld) – application of proviso that no substantial miscarriage of justice actually occurred – appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape – evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 (“impugned evidence”) – impugned evidence irrelevant and inadmissible – Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety – Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury’s assessment of reliability or credibility of complainant – whether no substantial miscarriage of justice had actually occurred – it was not possible for the Court of Appeal to assess whether guilt was proved beyond reasonable doubt at trial – appeal allowed.
Orreal