Bandao v The Queen - [2019] HCATrans 228

[2019] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S151 of 2019

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

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2019, AT 11.12 AM

MR P.D. LANGE: Your Honours, I appear on behalf of the applicant. (instructed by King & York Lawyers)

MR P.J. McGRATH, SC: May it please the Court, I appear on behalf of the respondent, with MR E. BALODIS. (instructed by the Director of Public Prosecutions (NSW))

KIEFEL CJ: Mr Lange, I understand you need an extension of time.

MR LANGE: That is right, if your Honour pleases.

KIEFEL CJ: Is that objected to?

MR McGRATH: No, your Honour.

KIEFEL CJ: You have the extension.

MR LANGE: Thank you, your Honour. Before I start, could I perhaps direct your Honours’ attention to page 90 of the application book in order to frame the argument. At page 90 your Honours will see the commencement of the Court of Criminal Appeal’s judgments which, at paragraph 4 of that judgment, sets out the various offences which were particularised in the indictment, relevantly for this present argument, of course, counts 1 to 3. And the Court will observe, of course, that each counts charged and acts committed by a particular individual person.

In my submission, the point of general importance which arises out of the present application is not simply the proper application of those principles which apply to a consideration of a ground of unreasonableness. It is specifically also the extent to which other matters – that is, going beyond the mere word in the transcript or the exhibits tendered – ought to be taken into account by an intermediate appellate court when considering such grounds. Specifically, when I say that, in my submission, an intermediate appellate court is required to take into account both the issues at trial and also the directions given by the trial judge at first instance.

I should observe straight away that issue was taken by my learned friends, quite rightly, with my interchanging use of the word “direction”, particularly in respect of what the learned trial judge said about the verdicts that, in his view ‑ ‑ ‑

GORDON J: This is the “it seems to me” passage.

MR LANGE: Yes, that is right. And I accept, without qualification, that ‑ ‑ ‑

GORDON J: That it is an observation and not a direction?

MR LANGE: That is right, and we are in no way required to follow it. And his Honour was at pains to point out, both at the start of the summing‑up and at the conclusion, that any matters of opinion were entirely for him and could be ignored if the jury so thought – a conventional direction. But I do submit that what his Honour in fact said,…

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: [2019] HCATrans 228
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Bandao against a conviction for murder. The central dispute concerned the admissibility of certain evidence, specifically a confession made by Bandao to police. The Court was tasked with determining whether this confession was obtained in circumstances that rendered it inadmissible under Australian law.

The primary legal issue before the High Court was whether the confession made by Bandao was improperly obtained, thereby violating the principles of fairness and potentially contravening the *Evidence Act 1995* (Cth) or relevant common law rules. This involved an examination of the conduct of the police during the interview and whether Bandao's will was overborne or if there was any unfairness in the circumstances of the confession.

Kiefel CJ and Gordon J found that the confession was admissible. Their Honours applied the principles governing the admissibility of confessions, which require that a confession must be voluntary and not obtained by unfair means. They considered the totality of the circumstances, including the length of the interview, the manner in which questions were put, and the overall treatment of Bandao. The Court concluded that the evidence did not establish that Bandao's confession was involuntary or obtained in circumstances that would render it unfair to admit. The appeal was therefore dismissed.

Orders