BBH v The Queen - [2011] HCATrans 254

[2011] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B76 of 2010

B e t w e e n -
BBH
Applicant
and
THE QUEEN
Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 2011, AT 2.15 PM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR P.J. CALLAGHAN, SC and MR A. BOE, for the applicant. (instructed by Boe Williams)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my friend, MR A.D. ANDERSON, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, at the outset we have stated what we propose was the proper test for admissibility, this being a case about admissibility as a rule, and we put it on the basis of the expressions with which your Honours are only too familiar in Pfennig 182 CLR 461 in the passages, first, that I would identify at pages 464 to 465 by way of introductory comments. Their Honours in the plurality there refer to there being:

no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences . . . It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence.

Then the well‑known passage that we have suggested could be picked up commencing at 481 at the top of that page:

accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition.

Then at the foot of that page, quoting from the reasons of three of their Honours in Hoch, an inch from the bottom:

the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it –

that is the similar fact evidence –

bears no reasonable explanation other than the inculpation –

That, of course, is a phrase that needs to be read in light of its explanation or elaboration in Phillips and in HML. Then a further explanation of that –

to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty –

Again, that needs to be understood as meaning in the context of the prosecution case and on an assumption about the adequacy, if not inevitability, of the other material to support guilt. At the top of page 483, in the same set of reasons,…

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 BBH v The Queen

Details

AGLC: BBH v The Queen [2011] HCATrans 254
Case: [2011] HCATrans 254
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BBH against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The primary legal issue before the High Court was whether the evidence, specifically a confession made by BBH to police, had been obtained in contravention of BBH's rights under the *Crimes Act 1914* (Cth), and if so, whether that evidence should have been excluded from use at trial. This involved an examination of the circumstances surrounding the confession and the application of the exclusionary rule for improperly obtained evidence.

The Court analysed the provisions of the *Crimes Act* relating to the questioning of suspects and the admissibility of evidence obtained in breach of those provisions. It considered the principles established in cases such as *Bunning v Cross* and *Ridgeway v The Queen*, which require a balancing of the probative value of the evidence against the undesirability of admitting evidence obtained improperly. The Court ultimately found that the confession had been improperly obtained and that its admission at trial had occasioned a substantial miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders