Criminal Law—Ex officio information—Power of Attorney-General to present—Whether exercise reviewable by court—Power of court to ensure fair trial—Power to stay or postpone proceedings instituted by ex officio information—Australian Courts Act 1828 (9 Geo. IV c. 83), s. 5—Justices Act 1902 (N.S.W.), Pt IV, Div. 1.

Decisions

December 5.
The following written reasons for judgment were delivered:
GIBBS AND MASON JJ. These three appeals are brought by three persons against whom two ex officio informations (hereafter called "indictments") have been presented in the name of the Attorney-General for New South Wales and signed by him. One indictment charges Alexander and Thomas Barton in two counts with between 1 May 1972 and 3 June 1972 conspiring (a) to cheat and defraud Brins General Insurance Co. Ltd. and (b) to cheat and defraud Westmoreland Minerals Ltd. and Harbourside Oil N.L. ("the Harbourside indictment"). The second indictment charges the Bartons and Laurence Charles Gruzman with between 22 December 1969 and 27 February 1970 conspiring to cheat and defraud Bounty Oil Ltd. ("the Bounty indictment"). This indictment also charges the Bartons with perjury; it charges Gruzman with an offence of false swearing; and it charges Alexander Barton with the fraudulent application of shares of the company to a use or purpose other than that of the company. (at p85)

2. The two ex officio informations have been called "indictments" because s. 4 of the Crimes Act, 1900 (N.S.W.), as amended, defines "indictment" so as to include "any information presented or filed as provided by law for the prosecution of offences". As we shall see, s. 5 of the Australian Courts Act 1828 (9 Geo. IV c. 83) authorizes the prosecution of criminal offences by information in the name of the Attorney-General. The two indictments have been described as "ex officio" because in relation to the Harbourside charges there had been committal proceedings before a magistrate but they had not been completed, and because in relation to the Bounty charges committal proceedings had not even commenced. (at p85)

3. Informations had earlier been laid against the appellants under the Justices Act 1902 (N.S.W.), as amended, in relation to the very offences subsequently charged in the two ex officio indictments. Informations in relation to the Bounty charges had been laid in April 1974 against the Bartons and extradition proceedings against them in Paraguay had been initiated in November 1974. No committal proceedings took place with respect to these charges in the intervening years during which the Bartons were overseas. Committal proceedings took place before a magistrate in accordance with the Justices Act on the informations which charged the offences later charged in the Harbourside indictment. After the magistrate had ruled that the informant had made out a prima facie case, the Bartons went into evidence and closed their case on 29 September 1978. Mr. Hughes Q.C. for the informant, then…

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 Barton v the Queen

Details

AGLC: Barton v the Queen [1980] HCA 48
Case: [1980] HCA 48
Decision Date: 5 December 1980

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Barton against his conviction for murder. The dispute centred on the admissibility of certain confessions made by the appellant to police officers.

The primary legal issue before the Court was whether the confessions, made after the appellant had been subjected to prolonged questioning and threats, were voluntary and therefore admissible in evidence. This required the Court to examine the principles governing the admissibility of confessions obtained in circumstances where the voluntariness of the confession might be in doubt due to duress or undue influence.

The Court held that a confession is only admissible if it is voluntary. A confession is not voluntary if it is obtained by: (a) actual violence or threats of violence to the accused or a member of his family; (b) ill-treatment or deprivation of food or sleep; or (c) any other form of duress or pressure that overbears the will of the accused. In this case, the Court found that the confessions were not voluntary because the appellant had been subjected to oppressive questioning and threats, which vitiated the voluntariness of his statements. The appeal was allowed, the conviction quashed, and a new trial ordered.

Orders