Barker v The Queen - [2003] HCATrans 440

[2003] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P58 of 2002

B e t w e e n -
GARRY JOHN BARKER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.24 AM

MR B.S. HANBURY: May it please the Court, I appear on behalf of the applicant. (instructed by Beau Hanbury)

MR D. DEMPSTER: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (WA))

McHUGH J: Yes, Mr Hanbury.

MR HANBURY: Your Honour, in this matter the applicant was convicted of various offences and what is complained about is set out at page 44 of the application book, in the second paragraph. Her Honour, with respect, was told by the members of the jury that they had:

noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] –

The position is that this was the first time that any fibre had been noticed on the tape, in the sense of saying that the Crown did not prosecute the case on the basis that it could be said, before the matter went to the jury, that there were fibres, any fibres at all, apart from a hair that was found, on the tape, so that the jury had discovered in the course of, apparently, viewing the tape that there were these fibres.

In the court below, the appeal was dismissed unanimously. His Honour Justice Anderson, at page 66 of the application book, referred to the fact that defence counsel did not ask for an adjournment so that the exhibits could be tested. In my respectful submission, it would not be open for counsel to have done that because the trial had finished, the exhibits were before the jury, and for ‑ ‑ ‑

McHUGH J: A trial is never over until the jury returns its verdict. I mean, it is not unusual ‑ ‑ ‑

MR HANBURY: Your Honour, in the course of the judgment in the court below, the case of Buller was referred to. This was a different type of case. This was a case where, before the matter had got to the jury, one of the expert witnesses had given evidence and counsel had not known of that evidence before, so an application was made for an adjournment. The case at hand involves a situation where, for the first time, the jury finds material and asks the learned trial judge whether that material can be used, having come to various conclusions about it.

Your Honour, what is complained of is that the jury having come to a conclusion, firstly, that they noticed blue fibre, secondly, that they had concluded that that blue fibre was from the top worn by the complainant, it is submitted, with respect, that…

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 Barker v The Queen

Details

AGLC: Barker v The Queen [2003] HCATrans 440
Case: [2003] HCATrans 440
Decision Date

CaseChat Overview and Summary

In *Barker v The Queen*, the High Court of Australia considered an appeal by the applicant, Barker, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the applicant, which the applicant argued was obtained in contravention of his rights. A further issue was whether the trial judge had adequately directed the jury on the relevant legal principles, particularly concerning the issue of self-defence.

McHugh and Heydon JJ, in their joint judgment, analysed the provisions of the *Crimes Act 1914* (Cth) concerning the admissibility of evidence obtained in contravention of Commonwealth law. They affirmed that while a court has a discretion to exclude improperly or illegally obtained evidence, this discretion is not unfettered and must be exercised judicially, balancing the probative value of the evidence against the unfairness to the accused. The Court also examined the principles governing directions on self-defence, emphasising the need for clarity and completeness to ensure the jury could properly consider the defence.

The High Court dismissed the appeal, finding no error in the trial judge's rulings or directions that would warrant setting aside the conviction.

Orders