BJS v The Queen - [2013] HCATrans 318

[2013] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S120 of 2013

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

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 1.04 PM

MR G.A. WALSH: May it please the Court, I appear for the applicant. (instructed by Greg Walsh & Co)

MS M.M. CINQUE: May it please your Honours, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW)

BELL J: Yes, Mr Walsh.

MR WALSH: Yours Honours, at the outset I acknowledge that there are probably too many grounds but I would just like to firstly take your Honours to ground 7 which is the complaint in respect of the issue of what assistance the learned trial judge ought to have given to the jury when they sought assistance as to beyond reasonable doubt.

Your Honours, if I could take you to application book at page 91. I have to concede that the jury had returned with verdicts of guilt, you will see at page 90, in respect of counts 5, 6 and 11. His Honour then at page 91 in the second paragraph introduced a concept which became, in my respectful submission, relevant, namely reluctant agreement. The next day, your Honours, if you go to page 99, the jury asked a question of his Honour seeking assistance as to clarifying the meaning of “reasonable doubt”:

Can you suggest some examples to assist us in this regard. For example is there a probability weighting or threshholding that we might apply.

On the next page, page 100, learned senior counsel for the Crown and also Mr Boulten, senior counsel for the applicant, reminded his Honour of the principles of this Court such in Green’s Case. His Honour acknowledged himself the principles in Green’s Case. On the bottom of the next page at 101, your Honours, he said to the jury:

Unfortunately, I am not permitted by law to give you any examples –

The learned trial judge then at 102 proceeded to do, with the greatest of respect, the very opposite that he said he would not do in that sense and gave two particular examples - one was a loan given possibly to your son or daughter and if you gave that loan even though you did not want to give the loan that could amount to a reluctant agreement. The other example was the interstate trip or trip to Bundaberg and, again, if you did not want to go and you reluctantly agreed then that would be nevertheless an agreement. On page 103, his Honour again gave directions to the jury in relation to – towards the bottom of the page:

If even though reluctantly, you think I have got to agree he is guilty, you find him guilty. If the reluctance…

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: [2013] HCATrans 318
Decision Date

CaseChat Overview and Summary

The case of BJS v The Queen concerned an appeal to the High Court of Australia by the applicant, BJS, against a decision of the Court of Criminal Appeal of New South Wales. The applicant had been convicted of a number of offences, including sexual assault. The central dispute on appeal related to the admissibility of certain evidence obtained during the investigation of the offences.

The High Court was required to determine whether the evidence in question, which included admissions made by the applicant and material seized from his property, had been obtained in contravention of the applicant's rights under the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). Specifically, the court considered whether the police had acted unlawfully in their dealings with the applicant, thereby rendering the subsequent evidence inadmissible.

Bell and Gageler JJ held that the evidence was admissible. Their Honours reasoned that while there may have been some technical breaches of procedural requirements by the police, these breaches did not vitiate the lawfulness of the search and seizure. The court applied principles of statutory interpretation to the relevant provisions of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW), concluding that the powers exercised by the police were within their statutory authority. The court emphasised that the focus was on whether the powers themselves were lawfully exercised, rather than on strict adherence to every procedural step, particularly where no prejudice to the applicant was demonstrated.

The appeal was dismissed.

Orders