Balassis v The Queen - [2011] HCATrans 166

[2011] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M161 of 2010

B e t w e e n -
GEORGE BALASSIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 10 JUNE 2011, AT 1.59 PM

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by Melasecca, Kelly and Zayler)

MR G.J.C. SILBERT, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Boyce.

MR BOYCE: Your Honours, the principle that is at stake and is raised by this application is the fundamental principle that applies in the criminal law, namely that of remorse, especially in the area of sentencing and its mitigatory force. The reason why it arises in this instance is, it is submitted, because what occurred in this case was that the learned sentencing judge, notwithstanding he accepted that statements made by the applicant of a remorseful nature were genuine and sincere, treated them with “reserve” because in his Honour’s words, they were made by an offender who suffered from a disturbing underlying inadequacy and immaturity to his personality.

Now, one finds that finding by his Honour at application book 107 at paragraph 68 of his Honour’s reasons for sentence. Your Honours will see there that whereas the expressions of remorse made by the applicant and they found themselves set out really in a letter that was read with the concurrence of all into the transcript, and one finds that at AB 79 - I do not need to take your Honours to it. That expression of sincere remorse was objected to by the Crown ‑ ‑ ‑

FRENCH CJ: Where is there a finding of the sincerity? He did not propose that the letter be rejected as manufactured for the purpose of the plea. That is not the obverse of expressing reserve about the significance of the expression of remorse, is it?

MR BOYCE: I am sorry, your Honour, the finding is that his Honour treats the expression of remorse with:

some reserve. I say this not for the reason advanced by Ms Williams –

who was the prosecutor on the plea.

FRENCH CJ: That is right, he was not saying it was a manufactured ‑ ‑ ‑

MR BOYCE: Precisely. It was to be treated with reserve, namely because in the judge’s view:

there is, as Mr Newton –

who was the phycologist whose report was tendered on the plea - there existed –

a more disturbing underlying inadequacy and immaturity to –

the applicant’s personality. So it is submitted that where issue was joined between the parties on sincerity, the judge did not reject the expression ‑ ‑ ‑

KIEFEL J: I think we might…

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 Balassis v The Queen

Details

AGLC: Balassis v The Queen [2011] HCATrans 166
Case: [2011] HCATrans 166
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Balassis against a conviction for murder. The central dispute concerned the admissibility of evidence obtained from a covert recording made by a police informant.

The High Court was required to determine whether the evidence obtained from the covert recording was admissible, notwithstanding that the recording was made in circumstances where the appellant had a reasonable expectation of privacy. This involved considering the application of the common law exclusionary rule and the principles governing the admission of evidence obtained in contravention of an individual's privacy.

The Court held that the common law exclusionary rule, which permits the exclusion of illegally or improperly obtained evidence, did not automatically render the recording inadmissible. Instead, the Court applied a balancing exercise, weighing the probative value of the evidence against its prejudicial effect. The Court found that the recording was highly probative of the appellant's guilt and that its prejudicial effect was not so significant as to warrant its exclusion. The Court therefore upheld the admissibility of the evidence.

Orders