Bell v The Queen - [2021] HCATrans 132

[2021] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2021

No A3 of 2021
B e t w e e n -
TROY STEPHEN BELL
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GAGELER J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 3.28 PM

MS M.E. SHAW, QC appears with MR B.J. DOYLE, QC and MR S. JOYCE for the applicant in each application. (instructed by Shaw & Henderson)

MR M.G. HINTON, QC appears with MS K.J. PARK for the respondent in each application. (instructed by Office of the Director of Public Prosecutions (SA))

GAGELER J: Mr Doyle, could you stay on mute for a moment, please? I have a couple of questions to ask Mr Hinton.

MR DOYLE: If your Honour pleases.

GAGELER J: Mr Hinton, there were three proceedings before the Full Court. There was the appeal proceeding and the order in that is the subject of the first of the applications before us. There was what was described as the reservation proceeding and the answers to the questions reserved in that proceeding are the subject matter of – I am sorry, that is the subject matter of the first proceeding before us. The orders in the appeal proceeding are the subject matter of the second application before us. Then there was also a third proceeding, a declaration proceeding, to which I think you were not a party. The Commissioner was the moving party there. Was the Commissioner separately represented?

MR HINTON: She was.

GAGELER J: What has happened to that declaration proceeding?

MR HINTON: My understanding is it remains in abeyance. The orders ‑ ‑ ‑

GAGELER J: So, no orders have been made or no ‑ ‑ ‑

MR HINTON: That is my understanding.

GAGELER J: Okay.

GORDON J: Can we ask why it was in abeyance?

MR HINTON: I think the answer to that question can be found at 203 of the application book.

GAGELER J: What numbers are you using, Mr Hinton?

MR HINTON: The bold numbers, top right‑hand corner.

GAGELER J: Excellent, thank you. Whereabouts?

MR HINTON: At paragraphs 417 through to 419.

GAGELER J: All right. Has it just proved too hard, or what is happening?

MR HINTON: I cannot really answer your Honour’s question other than to say that the Commissioner has not seen fit to go back before the Full Court at this point in time.

GAGELER J: All right. Was the Commissioner an active participant in the argument before the Full Court?

MR HINTON: On her application, yes.

GAGELER J: So, going to the proceeding where you were the moving party, the questions reserved, no doubt you accept them to be important questions?

MR HINTON: Yes. We would not have made the application if they were not. I have to concede that.

GAGELER J: Of course. I think…

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 Bell v The Queen

Details

AGLC: Bell v The Queen [2021] HCATrans 132
Case: [2021] HCATrans 132
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Bell against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police, which Mr Bell argued was unlawfully obtained and should have been excluded from his trial.

The High Court was required to determine whether the admission of the covert recording evidence was an error of law that rendered the conviction unsafe or unsatisfactory. This involved considering the application of the common law exclusionary rule, which permits the exclusion of unlawfully or unfairly obtained evidence, and the principles governing the exercise of judicial discretion to admit such evidence.

The Court reasoned that the common law exclusionary rule is not absolute and that a judge retains a discretion to admit evidence even if it has been unlawfully obtained, provided its probative value outweighs its prejudicial effect. In this instance, the High Court found that the trial judge had properly exercised this discretion, having regard to the significant probative value of the recording in establishing Mr Bell's guilt and concluding that its prejudicial effect did not outweigh that value. The Court affirmed that the admissibility of evidence obtained in breach of a statutory prohibition is a matter for judicial discretion, not an automatic bar to admission.

The appeal was dismissed.

Orders