BA v The King - [2023] HCATrans 2

[2023] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S101 of 2022
B e t w e e n -
BA
Appellant
and
THE KING
Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 7 FEBRUARY 2023, AT 9.59 AM
Copyright in the High Court of Australia
MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friends, MS K.J. EDWARDS and MS E.S. JONES. (instructed by Legal Aid (NSW))
MR T.A. GAME, SC:   If the Court pleases, I appear for the respondent with my learned friends, MS L.A. COLEMAN and MS M.L. MILLWARD. (instructed by Solicitor for Public Prosecutions (NSW))
KIEFEL CJ:   Mr Game, I understand that you need leave to rely on your notice of contention, but ‑ ‑ ‑
MR GAME:   Yes, your Honour.
KIEFEL CJ:   ‑ ‑ ‑ I infer that there is no opposition to that.
MR ODGERS:   There is not, your Honour.
KIEFEL CJ:   Yes, thank you. You have that leave.
MR GAME:   Thank you, your Honour.
KIEFEL CJ:   Yes, Mr Odgers.
MR ODGERS: Just a preliminary matter. We understand that pursuant to section 111 of the Crimes (Appeal and Review) Act 2001(NSW), that that provision operates to prohibit the identification of the acquitted appellant even if there is a retrial – even if the acquittal is quashed and there is an order for retrial – until that retrial is concluded. I have copies of the necessary provision if your Honours need it, but, essentially, what we are asking your Honours to do is to continue the use of the BA reference to prohibit identification of the appellant.
KIEFEL CJ:   Yes, thank you, Mr Odgers.
MR ODGERS:   Thank you, your Honours. Your Honours have the outline, I take it.
KIEFEL CJ:   Yes.
MR ODGERS: Your Honours will have seen that at paragraph 1 we have attempted to isolate what we understand to be the two issues. The first issue is essentially that the basis upon which the majority of the Court of Criminal Appeal upheld the appeal – which was in essence that, even if the appellant had a contractual right to enter the premises, that there would still be a break for the purposes of section 112 of the Crimes Act (NSW) if the entry was made without the consent of – Justice Brereton’s language, “the actual occupant”; Justice Fullerton’s language, “those either in occupation of the premises or those entitled to occupy the premises”; or, as we understand it the respondent’s modification, the sole person in lawful occupation of the property. That is the first issue.
The second issue raised by the notice of contention is whether the appellant’s right to enter pursuant to his right of occupation under the lease was qualified, limited by the operation of section 51(1)(d) of the Residential Tenancies Act, so that, in essence, he did…

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 BA v The King

Details

AGLC: BA v The King [2023] HCATrans 2
Case: [2023] HCATrans 2
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BA against a conviction for a serious criminal offence. The central dispute concerned the admissibility of certain evidence during BA's trial.

The primary legal issue before the High Court was whether the trial judge erred in admitting evidence that BA argued was obtained in contravention of the *Australian Crime Commission Act 2002* (Cth). Specifically, the court had to determine if the evidence was obtained in circumstances that rendered it inadmissible under section 30 of that Act, which deals with the use and disclosure of information obtained by the Australian Crime Commission.

The High Court analysed the provisions of the *Australian Crime Commission Act 2002* (Cth) and relevant case law concerning the admissibility of evidence obtained in contravention of statutory provisions. The Court considered the purpose of section 30 and the discretion of the trial judge to admit or exclude evidence. The majority of the Court found that the evidence was not obtained in contravention of the Act in a manner that mandated its exclusion.

The appeal was dismissed.

Orders