Aubrey v The Queen - [1996] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 1995

B e t w e e n -
FREDERICK AUBREY
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1996, AT 11.59 AM

MR J.A. GRIFFIN, QC: May it please the Court, I appear with my learned friends, MR A.C. SMITH and MR D.C. RANGIAH, for the applicant. (instructed by Paul Richards & Associates)

MR M.J. BYRNE, QC: May it please the Court, I appear with my learned friend, MR L.J. CLARE, for the respondent. (instructed by D. Field, Solicitor to the Director of Public Prosecutions (Queensland)).

MR GRIFFIN: Your Honours will have seen that the applicant was 16.5 years of age at the time of the event and at the time of the interview. He lived in an Aboriginal community at Cherbourg and had lived there all of his life. A record of interview was conducted with him on a charge of attempted murder. The victim subsequently died and the charge was altered to murder. The interview was conducted in the presence of a Mr David Thompson.

Your Honours, if it was an essential prerequisite of the admissibility of the record of interview, as we submit it was, that the applicant receive advise from someone capable of advising him of his rights, it does not seem open to dispute that Mr Thompson was not such a person. Our friends go no further than to assert in their outline that he was found by the trial judge to be an independent adult person in whom the applicant had confidence and that was undoubtedly correct. But that is as far as it went. He had no knowledge of the rights of a suspect when an interview was taking place, and we remind your Honours of what was said in Collins by the present Chief Justice of this Court. He said, “A prisoner’s friend is intended to enhance the suspect’s ability to choose freely whether to speak or to be silent.” Mr Thompson plainly did not meet this criterion and, as the President said at page 48 of the application book:

He was in no better position than the appellant himself to decide what was in the appellant’s best interests.
Your Honours, it is accepted that rules such as the directives in the present case are not rules of law in the sense that any breach of them necessarily vitiates a confession. There is, of course, now a good deal of authority to the effect that they are rules of law in the sense that a police officer acts unlawfully if he commits a breach of them but, although they are not rules of law in the sense that any breach necessarily vitiates a confession, it has long been uncontested law, of course, that…

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 v The Queen

Details

AGLC: Aubrey v The Queen [1996] HCATrans 68
Case: [1996] HCATrans 68
Decision Date

CaseChat Overview and Summary

Aubrey appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from Aubrey during police interviews, specifically statements made by Aubrey after he had been cautioned by police.

The High Court was required to determine whether the trial judge had erred in admitting Aubrey's statements into evidence. This involved considering whether the caution administered by the police was sufficient to render the subsequent statements voluntary, particularly in light of Aubrey's intellectual disability and the circumstances of his detention. The court also had to assess whether the admission of the statements had occasioned a miscarriage of justice.

The majority of the High Court, comprising Toohey and McHugh JJ, held that the trial judge had erred in admitting the statements. Their Honours reasoned that while the caution was administered, the circumstances of Aubrey's detention and his intellectual disability meant that the caution was unlikely to have been fully understood or appreciated by him. Consequently, the statements could not be considered voluntary. Kirby J, in dissent, found that the caution was adequate and the statements were admissible. The majority concluded that the admission of the statements had occasioned a miscarriage of justice, and therefore, the conviction could not stand.

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

Orders