MR A.P. KIMBER, SC: If the Court pleases, I appear for the respondent with MS J. LITSTER. (instructed by Director of Public Prosecutions (SA))

MS SHAW: May it please the Court, the applicant submits that the special leave question that arises for determination concerns the admission of evidence of a past violent relationship where, firstly, identity is in issue - here the accused put forward an alibi - and, secondly, absent the relationship evidence, there was no evidence implicating the accused in the crime. The majority of the Full Court upheld the ruling of the learned trial judge, both in relation to the admission of the evidence and in relation to the use to which the jury could put the evidence upon her directions.

The applicant submits that where identity is in issue and the propensity evidence is an indispensable link to proof, the Pfennig test applies, not Wilson. The important point of principle that we submit arises from this application has not been resolved by this Court in HML, but your Honour Justice Heydon observed in Roach that the issue of the admissibility of relationship evidence in common law jurisdictions was not affected by Roach, which of course South Australia is, and your Honour observed it is a fundamentally important question.

BELL J: Can I just inquire whether this part of your argument depends upon a view that the circumstances of this case are to be distinguished from Wilson because, although the applicant was the person who found the body of the deceased and had been present with the deceased at the time -relatively close to the time that she met her death, nonetheless, there is an interval of time when, on his account, he was not present and there is a theory that a person other than the applicant might have come, killed the deceased and then left the scene as it was, some would say suggestive of suicide. That is the posit, is it not, of this argument?

MS SHAW: That is the first. There is a second posit and it is this that, firstly, as your Honour has rightly pointed out, in Wilson there was no issue of presence. The accused was admittedly present at the shooting. Secondly, in Wilson, as former Chief Justice Barwick pointed out, once accident, which solely depended upon the accused’s explanation, was rebutted inevitably there was murder and, thirdly, it is a very strong case apart from the relationship evidence, as…

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 Allen v The Queen

Details

AGLC: Allen v The Queen [2011] HCATrans 270
Case: [2011] HCATrans 270
Decision Date

CaseChat Overview and Summary

Allen appealed to the Court of Criminal Appeal of New South Wales against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, which the appellant argued was obtained in contravention of his rights.

The primary legal issue before the Court was whether the evidence, specifically a record of interview and a subsequent confession, should have been excluded from trial. This question turned on whether the interview and confession were obtained in circumstances that rendered them inadmissible, particularly in light of the appellant's rights and the conduct of the police.

The Court considered the principles governing the admissibility of evidence obtained in contravention of an accused's rights, referencing established common law and statutory provisions. It examined whether the police had acted unlawfully or unfairly in obtaining the interview and confession, and whether the probative value of the evidence outweighed any prejudice to the appellant. The Court ultimately found that the evidence was admissible, upholding the conviction.

Orders