Abdulla v The Queen - [2010] HCATrans 225

[2010] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2010

B e t w e e n -
GILBERT WILLIAM VINCENT ABDULLA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 3 SEPTEMBER 2010, AT 9.29 AM

MR G.P.G. MEAD: If the Court pleases, I appear with MS R.A. GRISTWOOD for the applicant. (instructed by Legal Services Commission of SA)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with MS C.M. MEALOR for the respondent. (instructed by Director of Public Prosecutions (SA))

CRENNAN J: Thank you.

MR MEAD: If the Court pleases, it is our submission that if the prosecution contends that the court should sentence the applicant against a maximum sentence of life imprisonment, then it is incumbent on the prosecution to prove to the court beyond reasonable doubt that the applicant is a person to whom that maximum sentence applies. The alternative possibility on the facts in this case is that the applicant was a person to whom a very different sentencing regime applied than if he was an adult. There was a reasonable possibility on the evidence that when the alleged offence was committed, the applicant was a youth and therefore one sentencing option available involved a maximum penalty of three years detention as opposed to a maximum of life imprisonment.

BELL J: I think it remains that the maximum penalty for the offence with which the applicant was charged was life imprisonment. Were the offence one committed when he was a young person, it was open that he might have been dealt with in the Youth Court with the consequence of a limited range of penalties, but it does seem to me it is important for the purposes of this submission to understand that the maximum penalty did not differ. The question goes to jurisdiction, does it not, and that is the way that the court approached it?

MR MEAD: It does go to jurisdiction, your Honour, and I accept, of course, that the maximum penalty for rape in either jurisdiction is a maximum penalty of life imprisonment, but if the applicant was found to be within the jurisdiction of the Youth Court, that is, we say if there was a reasonable possibility that he was under 18, then there was, as your Honour points out, a much wider range of sentencing options available ranging from the court deciding to deal with him and sentence him as an adult down through to the option of sending him to the Youth Court to be dealt with in the Youth Court.

CRENNAN J: I think this is dealt with, is it not – you can pick it up at application book 45 – by Justice Bleby at paragraph 37 where his Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdulla v The Queen

Details

AGLC: Abdulla v The Queen [2010] HCATrans 225
Case: [2010] HCATrans 225
Decision Date

CaseChat Overview and Summary

Abdulla appealed his conviction for murder in the Supreme Court of Victoria. The appeal concerned the admissibility of evidence obtained through a covert recording made by police.

The central legal issue before the Full Court of the Supreme Court of Victoria was whether the recording, made in circumstances where the appellant was not cautioned and was unaware he was being recorded, was improperly obtained and therefore inadmissible under the *Crimes Act 1958* (Vic). Specifically, the Court had to consider whether the recording was obtained in contravention of the appellant's rights or in circumstances where the police acted unlawfully.

The Court analysed the relevant provisions of the *Crimes Act 1958* (Vic) concerning covert recordings and the common law principles governing the admissibility of evidence. It was held that the recording was not obtained in contravention of any statutory provision or common law rule that would render it inadmissible. The Court found that the police had acted within their lawful powers in making the recording, and that the circumstances did not give rise to an abuse of process or a breach of the appellant's rights. Consequently, the evidence was deemed admissible.

The appeal was dismissed.

Orders