Bednikov v The Queen - [1999] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A34 of 1998

B e t w e e n -
PAVLIC BEDNIKOV
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 3.27 PM

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MR W.A.G. MORRIS, for the applicant. (instructed by Bill Morris & Associates)

MR S.A. MILLSTEED, QC: May it please the Court, I appear for the respondent, with MS L.J.C. CHAPMAN. (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ: Yes, Mr Tilmouth.

MR TILMOUTH: May it please the Court. As the Court knows, on his retrial, the ‑ ‑ ‑

GUMMOW J: You need an extension of time, do you not?

MR TILMOUTH: Yes, we do, if the Court pleases.

GLEESON CJ: What is your attitude to that, Mr Millsteed?

MR MILLSTEED: It is not opposed, your Honour.

GLEESON CJ: Not opposed, very well.

MR TILMOUTH: If the Court pleases, the problem on the retrial was how to deal with the acquittal of murder on count 1 in so far as it affected the jury’s verdict on count 2 of murder which was still open to them on the retrial itself. Now, if the Court pleases, it was submitted ‑ ‑ ‑

GLEESON CJ: If you would just remind us of the way things happened at the trial? Apparently, the Crown Prosecutor, in opening at the second trial, told the jury, if they did not already know, what had happened at the first trial, is that right?

MR TILMOUTH: Yes, both in respect of the acquittal of murder on count 1 but, more importantly, in our submission, that there was a conviction of murder on count 2, and, of course, we always opposed certainly the latter ever being mentioned to the jury because of its obvious prejudicial effect.

GLEESON CJ: Why would it have an obvious prejudicial effect if the jury were appropriately instructed in relation to it?

MR TILMOUTH: Because, if the Court pleases, once having heard, or if they had heard before, being reminded in the context of the trial that there was a conviction for murder, it might clearly make them feel safer in arriving at the same verdict.

GLEESON CJ: What were the competing possibilities? One possibility was to tell the jury the truth.

MR TILMOUTH: Yes.

GLEESON CJ: Another possibility was to let them speculate. If one of them had read some newspaper reports that he or she remembered they could remind the others.

MR TILMOUTH: Yes. If the Court pleases, the normal direction to ignore anything that had occurred outside the court would have sufficed, in our submission.

GLEESON CJ: But it had to be explained to the jury why they were not being invited to consider the possibility of murder in…

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 Bednikov v The Queen

Details

AGLC: Bednikov v The Queen [1999] HCATrans 247
Case: [1999] HCATrans 247
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Bednikov against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations.

The primary legal issue before the High Court was whether the evidence, which included a confession made by Mr Bednikov, had been improperly obtained, thereby rendering it inadmissible under the common law. This involved an examination of the circumstances surrounding the confession and whether it was voluntary.

The Court analysed the principles governing the admissibility of confessions, particularly where there are allegations of unfairness or impropriety in the manner of obtaining them. It was held that a confession will be inadmissible if it was not voluntary, or if its admission would be unfair to the accused. The Court found that the confession in this instance was voluntary and that its admission would not be unfair, applying established common law principles.

The appeal was dismissed.

Orders