Arundell v The Queen - [2001] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M94 of 2000

B e t w e e n -
KEVIN PATRICK ARUNDELL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 AUGUST 2001, AT 2.30 PM

GAUDRON J: In this matter the parties rely on their written submissions. I should recount the background to the present application. The applicant was convicted of a number of sexual offences involving a child who, at the relevant time, lived next door. He presently seeks an extension of time within which to bring a second application for special leave to appeal from the decision and orders of the Supreme Court of Victoria Court of Appeal which, by majority, allowed his appeal in part but confirmed his convictions for the sexual offences to which reference has just been made.

The unusual course of making a second application for special leave to appeal to this Court is sought to be justified on the basis that counsel who appeared for the applicant in relation to his first application did not follow instructions. So, too, in support of the merits of the application it is complained of the manner in which his counsel conducted his trial.

Essentially the question that must be asked is whether it is arguable that the convictions recorded against the applicant involved a substantial miscarriage of justice. That is a question that necessitates consideration of the conduct of the trial if, as in the present case, it is properly to be inferred that a particular course was taken for the purpose of obtaining a forensic advantage. In the present case the applicant received a distinct forensic advantage in that the jury was not instructed that his record of interview was capable of corroborating the evidence of the complainant, an instruction which would otherwise have properly been given had the jury been warned with respect to delay in her complaint.

In these circumstances, Justice Gummow and I are satisfied that no miscarriage of justice was involved in the applicant’s convictions beyond that identified by the Court of Appeal. Accordingly, we would dismiss the application for extension of time within which to bring a second application for special leave to appeal.

KIRBY J: As the dissenting judge in the Court of Appeal of Victoria (Tadgell JA) pointed out, there are matters of concern about the circumstances in which, 21 years after the first alleged offences, the complainant first made her complaints against the applicant. There are also concerns about the contents of such complaints. See Reg v Arundell [1998] VSCA 102. The complainant was then still suffering from the departure of her partner; the discovery of the existence of her natural mother; and the discovery that her mother was dead and had suffered from a possible hereditary mental illness. Moreover, the accusations against the applicant appear to have…

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 Arundell v The Queen

Details

AGLC: Arundell v The Queen [2001] HCATrans 292
Case: [2001] HCATrans 292
Decision Date

CaseChat Overview and Summary

In *Arundell v The Queen*, the High Court of Australia considered an appeal by the applicant, Arundell, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The High Court was required to determine whether the evidence, which included statements made by the applicant to police, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from admission at trial. Specifically, the court examined whether the applicant had been improperly induced to make the statements and whether the police had failed to caution him in accordance with their obligations.

The Court held that the statements were admissible. It reasoned that the applicant had not been improperly induced to make the statements, nor had the police acted in a manner that would render the evidence unfairly prejudicial to the applicant. The judges applied principles relating to the admissibility of confessional evidence, emphasizing that exclusion is generally warranted only where there has been a breach of statutory provisions or where the evidence has been obtained unfairly.

The appeal was dismissed.

Orders