Bakewell v The Queen - [2009] HCATrans 133

[2009] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D5 of 2009

B e t w e e n -
JONATHAN PETER BAKEWELL
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 JUNE 2009, AT 10.18 AM

MR M.L. ABBOTT, QC: May it please the Court, I appear with my learned friend, MR I.L. READ, for the appellant in this matter. (instructed by Legal Aid Commission)

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MS S.L. BROWNHILL, for the respondent. (instructed by Solicitor for the Northern Territory)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR N.M. WOOD for the Attorney‑General of the Commonwealth intervening in the interests of the respondent. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.L. CONLEY, on behalf of the Attorney‑General for Western Australia intervening in support of the respondent. (instructed by State Solicitor for Western Australia)

MR M.G.SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor for New South Wales)

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the Attorney‑General for Victoria intervening. (instructed by Victorian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear on behalf of the Attorney‑General for the State of South Australia with my learned friend, MR S.A. McDONALD, intervening in support of the respondent. (instructed by Crown Solicitor for the State of South Australia)

FRENCH CJ: The Court has sent a communication to the parties indicating that it invites submissions first from the Northern Territory and South Australia in relation to the operation of the interstate transfer of prisoners legislation in the context of this particular matter and, in particular, the effects of section 23 of the Prisoners (Interstate Transfer) Act (NT). Yes, Mr Grant.

MR GRANT: Yes, your Honours, if I could say something briefly to start with about the nature and purpose of this scheme. It is clearly a reciprocal legislative scheme and one purpose and operation of the reciprocal legislation is that transferred prisoners will stand in the same position after transfer as they stood before transfer in respect of both sentences and minimum terms.

FRENCH CJ: Can I ask just before you go on, is this the product of a formal intergovernmental agreement…

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.

Keep reading for free

Create a free CaseChat account to read Bakewell v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] HCATrans 133
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Bakewell against a conviction for murder. The dispute concerned the admissibility of evidence obtained from the appellant's mobile phone, which had been seized by police. The central question before the Court was whether the evidence derived from the phone was unlawfully obtained, and if so, whether it should have been excluded from the trial.

The High Court was required to determine whether the police had lawful authority to seize and retain the appellant's mobile phone under the relevant provisions of the *Crimes Act 1914* (Cth) and associated common law powers. Specifically, the Court had to consider whether the phone was an "instrument" or "evidence" of an offence, and whether the retention of the phone was justified. A further issue was whether, if the seizure or retention was unlawful, the evidence derived from the phone should have been excluded under the principle of *Bunning v Cross* due to its prejudicial effect outweighing its probative value.

The Court held that the police had lawful authority to seize the mobile phone as it was reasonably suspected to be evidence of the commission of an offence. Furthermore, the retention of the phone was also lawful, as it was necessary for the purposes of the investigation. The High Court found that the evidence derived from the phone was therefore lawfully obtained and admissible. The appeal was dismissed.

Orders