Aggarwal v The Queen - [2002] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2002

B e t w e e n -
DARREN GIFFORD
Appellant
and
STRANG PATRICK STEVEDORING PTY LIMITED
Respondent

Office of the Registry
Sydney No S112 of 2002

B e t w e e n -
KELLY GIFFORD
Appellant
and
STRANG PATRICK STEVEDORING PTY LIMITED
Respondent

Office of the Registry
Sydney No S113 of 2002

B e t w e e n -
MATTHEW GIFFORD
Appellant
and
STRANG PATRICK STEVEDORING PTY LIMITED
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 OCTOBER 2002, AT 10.20 AM

__________________

MR B.J. GROSS, QC: May it please the Court, I appear with MR D.E. BARAN for the appellant. (instructed by G.H. Healey & Co with Graeme R. Jensen & Co)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR T.F. McKENZIE, for the respondent. (instructed by Gillis Delaney Brown)

GLEESON CJ: Yes, Mr Gross.

MR GROSS: Your Honours, it was accepted by the trial judge and the New South Wales Court of Appeal and it seems common ground at both hearings that on 14 June 1990 shortly after the deceased died in a horrific work accident at 4 pm caused by the defendant employer’s negligence, each of the three appellants who were then teenage children with close ties of love and affection with their father received on that evening the distressing and, at least in a lay sense, shocking news of the accident and death at their home at Waterloo. They were emotionally devastated by the news but did not thereafter view the deceased’s body as they were discouraged from doing so because of the very disfiguring injuries inflicted by a large forklift truck.

Your Honours, the trial judge found that the deceased had “a close and loving relationship with the children” – that is at page 419 – a finding which the Court of Appeal repeated at 463. The trial judge found it was an “horrific” accident at 419, a finding which the Court of Appeal repeated at 464. The trial judge found that the three children “were understandably shocked and distressed at the news” – at 420 – a finding which the Court of Appeal repeated at 464.

The issue before the trial judge was whether the plaintiffs had suffered compensable nervous shock. The trial judge disposed of the matter solely by reference to section 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act. The Court of Appeal disposed of the matter on the basis there was no duty of care owed by the defendant.

Your Honours, it is acknowledged that at trial there was a live issue between the appellants and the respondent as to whether there was a psychiatric injury suffered by the three plaintiffs of the type which the law recognise. Whether one is treating…

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 Aggarwal v The Queen

Details

AGLC: Aggarwal v The Queen [2002] HCATrans 476
Case: [2002] HCATrans 476
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Aggarwal against his conviction for a number of offences, including conspiracy to import a commercial quantity of heroin and conspiracy to possess a commercial quantity of heroin. The prosecution alleged that Mr Aggarwal was involved in a conspiracy to import heroin from Thailand into Australia.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of certain conversations between Mr Aggarwal and a co-conspirator, which had been recorded by law enforcement officers. Specifically, the Court had to determine whether this evidence was admissible under the principles governing the admission of evidence of co-conspirators, particularly in light of the fact that the co-conspirator had not been apprehended or brought to trial.

The High Court, by majority, held that the evidence of the recorded conversations was admissible. The Court reasoned that the rule in *R v Teper* [1952] AC 480, which generally requires that statements made by a co-conspirator be made in furtherance of the common design, was not absolute. In this instance, the recorded conversations were found to be relevant to establishing the existence of the conspiracy and Mr Aggarwal's participation in it, even though the co-conspirator was not available to give evidence. The Court emphasised that the admissibility of such evidence is a matter for the trial judge's discretion, to be exercised by balancing the probative value of the evidence against any potential prejudice to the accused.

The appeal was dismissed.

Orders