BCM v The Queen - [2013] HCATrans 231

[2013] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B31 of 2013

B e t w e e n -
BCM
Appellant
and
THE QUEEN
Respondent

HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 OCTOBER 2013, AT 10.18 AM

MR D.C. SHEPHERD: I appear with MR J. LODZIAK for the appellant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC: If the Court pleases, I appear with MS C.M. KELLY for the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Shepherd.

MR SHEPHERD: Thank you, your Honour. If it please the Court, the judgment of the Queensland Court of Appeal did not reveal sufficient reasons for the conclusions reached in this case. When considering a ground of appeal that a verdict is unreasonable and not supported by the evidence, the Court of Appeal must determine whether on the whole of the evidence, it was open to the jury to convict. In doing so, it must make its own independent assessment of the evidence. That exercise, it is respectfully submitted, was not undertaken. When faced with such a ground of appeal, the Court of Appeal in this instance should have publicly provided transparent reasons which adequately demonstrate that the court has undertaken the task required of it.

HAYNE J: Let it be assumed for the purposes of argument, Mr Shepherd, that there were some weight in this criticism of what the Court of Appeal did, and no doubt we would have to hear Mr Moynihan in response to it, but assume for the purposes of debate that that were so, would we not then have to come to grips with, in this Court, the unsafe/unsatisfactory point?

MR SHEPHERD: The Court has two options. One is to remit the matter back to the Court of Appeal. My submission was that in considering whether the reasons were sufficient, or that the court had undertaken its task, this Court would in any event have to assess the evidence and could for itself undertake the task which miscarried below.

HAYNE J: Well, it is a two‑day trial or something under two days. The record is relatively brief.

MR SHEPHERD: Yes.

HAYNE J: Again, subject to anything that may be said by your opponent, assume for the purposes of debate that we were to form a view that we for ourselves should consider whether the verdict was unsafe or unsatisfactory, is that not the nub of the point that ultimately we have to grapple with however you frame the appellant’s case - sufficiency of reasons, what should we do. Do we not at some point have to come to grips with the allegation of unsafe/unsatisfactory?

MR SHEPHERD: If the Court proposes to proceed in that way rather than remit the matter back, yes, your Honour.

HAYNE J: I am asking, not telling, Mr Shepherd. I am only…

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 BCM v The Queen

Details

AGLC: BCM v The Queen [2013] HCATrans 231
Case: [2013] HCATrans 231
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BCM against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from BCM, specifically statements made by BCM to police and evidence derived from those statements. The High Court was tasked with determining whether the trial judge had erred in admitting this evidence, which BCM argued should have been excluded.

The primary legal issue before the High Court was whether the evidence obtained from BCM was rendered inadmissible by reason of the circumstances in which it was obtained. This involved an examination of whether BCM's admissions were voluntary and whether the police had acted unlawfully in obtaining the evidence. The court had to consider the application of the common law exclusionary rules and any relevant statutory provisions governing the admissibility of evidence obtained in such circumstances.

The High Court ultimately held that the evidence in question was admissible. Their Honours reasoned that the admissions made by BCM were voluntary and that the police conduct, while potentially subject to criticism, did not warrant the exclusion of the evidence under the common law. The court applied established principles regarding the voluntariness of confessions and the discretion of the trial judge to exclude evidence obtained improperly or unfairly, finding that the discretion had not been wrongly exercised. The appeal was therefore dismissed.

Orders