Aubrey (MA) v The Queen - [2017] HCATrans 13

[2017] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S274 of 2016

B e t w e e n -
MICHAEL AUBREY (MA)
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 FEBRUARY 2017, AT 10.01 AM

MR G.R. JAMES, QC: May it please the Court, in that matter I appear with my learned friends, MR P.D. LANGE and MR M.G. CORONEOS. (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC: May it please the Court, I appear with my learned friends, MR H. BAKER and MS B.K. BAKER. (instructed by Solicitor for Public Prosecution (NSW))

KIEFEL CJ: Yes, Mr James.

MR JAMES: Your Honours, before I commence on the actual argument, I should draw the Court’s attention to a misprint or misstatement appearing in the appeal book referring to the judgment of Justice Fagan. At page 185 in paragraph numbered 75, in the third line the word “probability” appears to have been inserted for the word “possibility”. I picked that up last night when going through the material, but it obviously was intended to be “possibility”, whatever be the accuracy or otherwise of the transcription, and we accept that.

KIEFEL CJ: I see. Yes, thank you. Is there any dispute about that, Mr Babb, or have you not ‑ ‑ ‑

MR BABB: No, that is fine, your Honour.

KIEFEL CJ: Yes, thank you. Yes, Mr James.

MR JAMES: Your Honours, the outline of submissions for both parties, the arguments before the Court of Criminal Appeal in the initial appeal and subsequently set out very fully the arguments that are sought to be made here. Firstly, as far as the initial argument concerning the concept of – underlying the words “inflict grievous bodily harm” is concerned, it is our primary argument that there is nothing in what has been said that detracts from the ordinary and natural meaning of those words as they appeared in the section arising from the dispute in the United Kingdom concerning the basis upon which Clarence may or may not have been decided. There is some difficulty as to terminology from time to time. The word “assault” appears to have been used on some occasions as embracing only a battery.

KIEFEL CJ: If we just go back to the meaning of “inflicts”. Does it not sometimes take its meaning from what it is that is inflicted?

MR JAMES: Yes, your Honour.

KIEFEL CJ: So, to inflict psychiatric harm might not have the same temporal element that you argue for the immediacy as a striking or a blow on a body and, similarly, it might be thought inflicting a disease depending upon the nature of the disease might not have that same connotation.

MR JAMES: Possibly, your Honour, but one rarely talks about inflicting a disease. If you are using the language in its ordinary…

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 Aubrey (MA) v The Queen

Details

AGLC: Aubrey (MA) v The Queen [2017] HCATrans 13
Case: [2017] HCATrans 13
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Aubrey (MA), against the decision of the Queensland Court of Appeal, which had dismissed his appeal against his conviction for a number of offences. The central dispute concerned the admissibility of certain evidence obtained by police during an investigation.

The primary legal issue before the High Court was whether the evidence obtained from the applicant's mobile phone, pursuant to a search warrant, was unlawfully obtained and therefore inadmissible under section 138 of the *Uniform Evidence Law* (Qld). This involved determining whether the police had reasonable grounds to suspect that the phone contained evidence of an indictable offence at the time the search warrant was issued.

The High Court reasoned that the police had failed to establish that they held a reasonable suspicion that the applicant's mobile phone contained evidence of an indictable offence at the time the search warrant was executed. The information available to the police at that time did not extend beyond a general suspicion that the applicant might be involved in criminal activity. Consequently, the search warrant was not lawfully issued, and the evidence obtained from the phone was unlawfully obtained. The Court held that the admission of this evidence at trial had resulted in a miscarriage of justice, as it was highly prejudicial to the applicant and could have influenced the jury's verdict.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Queensland Court of Appeal to determine whether a retrial should be ordered.

Orders