Achurch v The Queen - [2014] HCATrans 15

[2014] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S276 of 2013

B e t w e e n -
BRIAN WILLIAM ACHURCH
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2014, AT 10.01 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with MS G.A. BASHIR. (instructed by Catherine Hunter Solicitor)

MR L.A. BABB, SC: I appear with MS S.C. DOWLING, SC. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases. The Court should have our outline. Your Honours, should I wait for a moment or just press on?

FRENCH CJ: I think you can get started, Mr Game.

MR GAME: Thank you, your Honour. Could I take the Court directly to page 493 of the appeal book? In paragraph 22 of the judgment - and there are complexions on it but there really are two different ways in which this provision can be approached and they are set out there in paragraph 22. What then the court did in the judgment was to examine the judgments in that line of cases that we have set out in paragraph 1 and then when one comes to paragraph 61 the court says:

where no challenge is made to those decisions it would be inappropriate to construe the provision in the narrow fashion.

Now, those cases and really the genesis of the – the genesis of what might be described as the liberal construction of the provision commenced in Denning but the real articulation of it was in Ho by Justice Kirby where his Honour – that was actually a backdating case and it is maybe worth going directly to Ho 37 NSWLR. This was a case about failing to have regard to some days of untaken - custody not taken into account. The critical passage is at page 403 in the judgment at 37 NSWLR 393 at paragraphs (4) and (5). So that, if I just pause there, that really is the passage which has been adopted in the cases.

Now, we do not dispute that the narrow construction might have been open, but this is the construction that has been adopted and adopted consistently in the cases and never challenged by our opponents in this case in any formal sense.

CRENNAN J: But is it not a consistent thread in the conception of a broad operation - is not a consistent theme that section 43 is not, as the Court of Appeal said in this case, a proxy for an appeal? Justice Kirby says that too, does he not?

MR GAME: Actually, yes, your Honour, but that particular passage in his judgment - a different approach has been taken with respect to what might be described as the second phase which is,…

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.

Keep reading for free

Create a free CaseChat account to read Achurch v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] HCATrans 15
Decision Date

CaseChat Overview and Summary

Achurch appealed his conviction for murder in the Supreme Court of New South Wales. The central issue on appeal concerned the admissibility of evidence obtained from a covert recording of a conversation between Achurch and a prison informant. The High Court of Australia was required to determine whether the admission of this evidence, which was obtained in circumstances where Achurch was unaware he was being recorded, was an error that rendered his trial unfair.

The High Court considered whether the admission of the covert recording constituted a miscarriage of justice. This involved an assessment of whether the evidence was improperly obtained and, if so, whether its prejudicial effect outweighed its probative value. The Court also had to consider the application of the exclusionary rule, which generally requires the exclusion of improperly obtained evidence, and the exceptions to that rule.

The High Court held that the recording was improperly obtained because it was made without Achurch's consent and in circumstances where he had a reasonable expectation of privacy. However, the Court found that the admission of the recording did not occasion a miscarriage of justice. This was because the recording was highly probative of Achurch's guilt, and the jury was given clear and strong warnings about the potential unreliability of evidence obtained from informants. The Court emphasised that the admission of improperly obtained evidence does not automatically lead to a miscarriage of justice, and that the overall fairness of the trial must be considered.

The appeal was dismissed.

Orders