Achurch v The Queen - [2013] HCATrans 278

[2013] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S116 of 2013

B e t w e e n -
BRIAN WILLIAM ACHURCH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 9.52 AM

MR T.A. GAME, SC: May it please the Court, I appear for the applicant with MR D.P. BARROW. (instructed by Catherine Hunter Solicitor)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. For reasons that were essentially concerned with cost and expediency, after this Court’s decision in Muldrock, application was made to courts of first instance, but this was actually the first case. This was really a test case as to whether or not section 43 of the Crimes (Sentencing Procedure) Act could be utilised to reopen the sentences.

Events have overtaken that now, but what happened was that we were unsuccessful in reopening and a test was formulated which we say was contrary to the tests that had previously been propounded and which would make the provision largely unworkable for reasons which I will say in a minute, except for purely technical errors that amounted to unlawful sentences. Shall I talk about that now or shall I come to it in a moment, your Honour?

FRENCH CJ: Before you go on, do you require an extension of time?

MR GAME: I require an extension of time which is not opposed.

FRENCH CJ: Is that opposed?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR GAME: So the first judgment, if I could just take your Honours to page 58 of the application book - there are the grounds and 1 was upheld but was immaterial; 2 to 5 were all upheld. They all concerned a standard non‑parole period and they were all held by the Court of Criminal Appeal in the subsequent proceedings to have been wrongly upheld. Ground 6 was found not to have been infected by error and 7 was found to have been infected by error from Muldrock.

If I could just take your Honours briefly to some parts of the judgment of the first court, we see at page 80, paragraph 76 and following, why grounds 2 to 5 are infected by error. Then we see in a passage at page 86 that 2, 3, 4, 5 had an impact on sentence. Then when we come to ground 7, we see at paragraph 142 the excessive sentences. We see that the Muldrock error infected the excessive sentences, and we see that again at 155, and the court accepted also that the errors infected the sentences imposed on resentencing at 166.

So we have gone from a sentence with a non‑parole period of six years to…

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 Achurch v The Queen

Details

AGLC: Achurch v The Queen [2013] HCATrans 278
Case: [2013] HCATrans 278
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 certain evidence, specifically a confession made by Achurch to police. The High Court of Australia was required to determine whether the trial judge had erred in admitting this confession, given the circumstances under which it was obtained.

The High Court considered whether the confession was rendered inadmissible by reason of the provisions of s 86 of the *Evidence Act 1995* (NSW), which deals with the admissibility of admissions made by an accused person. Specifically, the Court had to assess whether the confession was obtained in circumstances that rendered it unreliable, or whether its admission would have had an adverse effect on the fairness of the proceedings that outweighed its probative value.

The Court reasoned that the admissibility of the confession depended on a careful consideration of the totality of the circumstances in which it was made. This included the length of Achurch's detention, the nature of the police questioning, and Achurch's mental state at the time. The Court applied the principles established in cases concerning the admissibility of confessions, emphasizing that the onus is on the prosecution to prove that a confession was not obtained in circumstances rendering it unreliable or unfair. The High Court ultimately found that the trial judge had not erred in admitting the confession.

Orders