Betts v The Queen - [2015] HCATrans 328

[2015] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S110 of 2015

B e t w e e n -
JOEL BETTS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2015, AT 10.15 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE. (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL J: Mr Babb, given the background to this matter and the correspondence that has been exchanged, we would be assisted by hearing from you first.

MR BABB: Thank you, your Honours. Your Honours, in my submission, there was not error in this case. When the court finds error and moves to the section 6(3) determination, it takes into account all the relevant material before it to redetermine the objective and subjective circumstances and determine the appropriate sentence in its own assessment. Whether material that was not before the sentencing judge should be admitted into evidence and considered in that redetermination is determined by section 12(1) of the Criminal Appeal Act and that is at page 131 ‑ ‑ ‑

KIEFEL J: Quite so, but the evidence was admitted initially by the Court of Criminal Appeal ‑ ‑ ‑

MR BABB: It was.

KIEFEL J: ‑ ‑ ‑ and it was conceded in written submissions, which is the reason we are asking you to address us first.

MR BABB: Yes.

KIEFEL J: It was clearly conceded in written submissions that the material was relevant and ought to have been taken into account.

MR BABB: Yes.

KIEFEL J: Speaking for myself, I am unpersuaded by the letter from the solicitor to suggest that it was not intended as a concession.

MR BABB: Well, in any event, your Honour, I withdraw that concession. The material was not properly admissible under the section 12(1)(c) test in that it was not necessary or expedient in the interests of justice to revisit that issue of the mental state of the prisoner at the time of sentencing, and what was necessary and expedient in the interests of justice was consideration of material changes since that sentencing and what had happened in his time in custody and thereafter.

KIEFEL J: So you are saying that the evidence of the two reports that was sought to be relied upon either dealt with the same facts that had been the subject of finding before the sentencing judge, or was it in any way contrary to those findings?

MR BABB: It was contrary, your Honour, and in a key way. It was traversing what were the agreed facts before the sentencing judge and this is a key area where section 6(3) would never allow material in. For example, the history given…

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.

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Details

Case: [2015] HCATrans 328
Decision Date

CaseChat Overview and Summary

Betts appealed his conviction for aggravated robbery to the High Court of Australia following a decision of the Supreme Court of Queensland. The central dispute concerned the admissibility of evidence obtained through a covert recording of the appellant in his prison cell.

The High Court was required to determine whether the admission of the covert recording, made in circumstances where the appellant had a reasonable expectation of privacy, constituted a miscarriage of justice. This involved considering the application of the common law exclusionary rule concerning improperly or illegally obtained evidence, and whether the circumstances of the recording warranted its exclusion.

The Court reasoned that while the recording was obtained in breach of the appellant's reasonable expectation of privacy, its admission did not necessarily occasion a miscarriage of justice. Applying the principles established in *Bannon v The Queen*, the Court held that the evidence was relevant and possessed significant probative value. The trial judge had properly considered the prejudicial effect of the evidence against its probative value and had given appropriate directions to the jury. Consequently, the High Court found no error in the admission of the evidence and dismissed the appeal.

Orders