Baini v. The Queen - [2012] HCATrans 281

[2012] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M87/2012

B e t w e e n -
MICHEL BAINI
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 2012, AT 10.01 AM

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR T.R. ALEXANDER, for the appellant in this matter. (instructed by Defteros Lawyers)

MR T. GYORFFY, SC: If it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Tehan.

MR TEHAN: Your Honours, there has been a good deal of reform to criminal appeals in Victoria in recent years. This appeal concerns one of the most significant of those changes. The Criminal Procedure Act 2009 (Vic) replaces the two stage analysis of the common form of criminal appeal provision. Could we take the Court immediately to the relevant provision? Under section 276(1) of the Criminal Procedure Act 2009:

the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that –
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c)for any other reason there has been a substantial miscarriage of justice.

Under section 276(2), unless one of these legs for appellate intervention is made out, the Court of Appeal must dismiss the appeal.

This section is contained within Part 6.3 of the Criminal Procedure Act, which sets out the relevant provisions for appeals to the Court of Appeal in respect of indictable matters. The right of appeal against conviction comes from section 274. Section 275 deals with how an appeal is commenced. Section 276, to which we have referred, deals with the determination of an appeal against conviction. Division 7 of Part 6.3 deals with powers and procedures of the Court of Appeal.

Included in this division are section 317, which permits the Court of Appeal to order the production of documents, exhibits and other matters relevant to the appeal, section 318, which allows the Court of Appeal to order witnesses to attend, section 319, which allows the Court of Appeal to receive the evidence of any competent but not compellable witness, and section 320, which permits the Court of Appeal to appoint a special commissioner to inquire into and report on any question. These are powers which courts of criminal appeal have long been familiar with.

Before we return to section 276 of the Criminal Procedure Act, could we contrast it with the common form criminal appeal provision which, at least insofar as Victoria is concerned, was contained within section…

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.

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Details

Case: [2012] HCATrans 281
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Baini against his conviction for murder, following a trial in the Supreme Court of New South Wales. The central dispute concerned the admissibility of certain evidence obtained from Mr Baini and the subsequent use of that evidence in his trial.

The High Court was required to determine whether the evidence obtained from Mr Baini, specifically statements made by him and items seized from his residence, was unlawfully obtained. This involved an examination of whether the police had reasonable grounds to suspect Mr Baini had committed the offence of murder at the time the evidence was obtained, and whether the subsequent search and seizure were authorised by law. The Court also considered whether, even if the evidence was unlawfully obtained, it should have been admitted at trial under the discretion to admit such evidence.

The Court reasoned that the admissibility of evidence obtained in contravention of statutory provisions, such as those governing searches and seizures, is a matter for the exercise of judicial discretion. This discretion requires a balancing of the competing interests of the need for effective law enforcement and the protection of individual rights against unlawful intrusion. The Court analysed the specific circumstances under which the evidence was obtained, including the information available to the police at the time, and concluded that the evidence was unlawfully obtained. However, the Court found that the trial judge had correctly exercised their discretion in admitting the evidence, as the probative value of the evidence outweighed the prejudice to the accused.

The appeal was dismissed.

Orders