Agius and The Queen - [2013] HCATrans 30

[2013] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S254 of 2012

B e t w e e n -
ROBERT AGIUS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2013, AT 11.00 AM

MR I.M. BARKER, QC: If the Court pleases, I appear with MR P.R. COADY, for the applicant. (instructed by Eddy Neumann Lawyers)

MR P.W. NEIL, SC: May it please your Honour, I appear with my learned friend, MS S.M. McNAUGHTON, SC, for the respondent. (instructed by Director of Public Prosecutions (Cth))

HEYDON J: Yes, Mr Barker.

MR BARKER: Your Honours, can I commence by tendering by consent a letter from the Director of Public Prosecutions? We only got it yesterday and I could not include it in the bundle of documents. The purpose in the tender is simply to demonstrate that the issue before your Honours is very much alive in other jurisdictions. The case referred to in the letter relies upon the Court of Criminal Appeal decision in this case. We say that this is relevant to the ‑ ‑ ‑

HEYDON J: So the other proceedings you are speaking of are what are called the Melbourne proceedings?

MR BARKER: Yes.

HEYDON J: And also there is Mr Zerafa, is he part of Agius’ proceedings?

MR BARKER: Yes.

HEYDON J: Yes, I see. Thank you.

MR BARKER: He was convicted and released on a good behaviour bond. That is the subject of further litigation. So, looking at all this generally and, in particular, the matters revealed by the letter, we say that this case fits quite snuggly into a trilogy of cases, being this case, Ansari and R v LK, and should be looked at by the Court in order that the unenlightened such as myself will learn what it is all about.

The Commonwealth Director presented an indictment, which is at page 1 of the application book. The indictment alleged two separate and different conspiracies, one contrary to the Crimes Act and one between 1 January 1997 and 23 May 2001, and secondly, contrary to the Criminal Code, between 24 May 2001 and 10 April 2008. Notwithstanding the indictment, the particulars at application book pages 3 to 4 tell us that there was but one conspiracy. It was formed by May 1997. All the accused were parties to it by 31 December 2000, yet the indictment has it starting on 24 May 2001.

There are three areas of disagreement – I have tried to reduce it to three. Firstly, the applicant contends that proof of the conspiracy alleged in count 2 requires evidence of an agreement entered into on or after 24 May 2001 because that is the commencing date alleged in count 2. In that regard, your Honours, the matter is raised in the application book…

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 Agius and The Queen

Details

AGLC: Agius and The Queen [2013] HCATrans 30
Case: [2013] HCATrans 30
Decision Date

CaseChat Overview and Summary

In *Agius and The Queen*, the High Court of Australia considered an appeal by the applicant, Agius, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This evidence was admitted on the basis that it was relevant to establishing the applicant's propensity to commit the offence charged. The court was required to determine if this admission contravened the general rule against admitting such evidence, which is designed to prevent juries from convicting an accused on the basis of their past conduct rather than the evidence relating to the specific offence.

The High Court held that the admission of the evidence of prior convictions and bad character was an error. Their Honours applied the principle that evidence of an accused's prior convictions or bad character is generally inadmissible unless it has a specific relevance to an issue in the case, beyond merely showing a propensity to commit the crime. In this instance, the evidence did not possess such specific relevance and was therefore improperly admitted.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders