Bounds v The Queen - [2006] HCATrans 236

[2006] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P54 of 2005

B e t w e e n -
MATTHEW DAVID BOUNDS
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 MAY 2006, AT 10.23 AM

MR I.L.K. MARSHALL: May it please your Honours, I appear with my learned friend, MR P.G. GIUDICE, for the appellant. (instructed by Moss & Co)

MR K.P. BATES: If the Court pleases, I appear with my learned friend, MR L.M. FOX, for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

GLEESON CJ: Yes, Mr Marshall.

MR MARSHALL: Your Honours, there is the preliminary point of the summons to amend the grounds of appeal.

GLEESON CJ: Is that opposed, Mr Bates?

MR BATES: We would oppose it for three reasons. Firstly, the ground was not argued before the criminal appeal. Secondly, it was expressly disavowed by counsel at the special leave hearing. Thirdly, it has only been filed the day before this hearing after all the submissions have been filed.

GLEESON CJ: Then, Mr Marshall, you can pursue your application in the course of making your submissions and we will hear Mr Bates’ response to it in the course of his submissions and we will decide in due course.

MR MARSHALL: Thank you, your Honour. There are basically four points here and they all arise out of the misjoinder. The first of the points that we would raise is that either the entire indictment was a nullity or there was a partial nullity. The effect or consequence of the entire indictment being a nullity or it being a partial nullity is a significant irregularity.

GLEESON CJ: Under the Criminal Code (WA) is there a procedure for raising arguments about the validity of an indictment?

MR MARSHALL: Yes, you can demur to the indictment.

GLEESON CJ: What happens if you do not follow that procedure?

MR MARSHALL: You are left in a position like we are now.

GLEESON CJ: What is that?

MR MARSHALL: Which is seeking justice according to law.

GLEESON CJ: You mean you can ignore the rules about when you are supposed to complain about the indictment and then take the point in the High Court?

MR MARSHALL: No, you cannot ignore the rules. Yes, the Criminal Code (WA) does have – when you are called upon to plead you can demur.

GLEESON CJ: What does it say about taking objections to the indictment? There was no objection taken to this indictment, was there?

MR MARSHALL: No, the position here, your Honour, is that neither the prosecutor, the defence counsel or the trial judge were alive to the position that one of the counts was a summary matter.

GLEESON CJ: I think what we would like to understand a little better than we do at the moment is…

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 Bounds v The Queen

Details

AGLC: Bounds v The Queen [2006] HCATrans 236
Case: [2006] HCATrans 236
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Bounds against a conviction for murder. The central dispute concerned the admissibility of evidence obtained from the appellant following his arrest.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's confession, which was obtained after he had been cautioned and had indicated he understood his rights, but before he was formally charged. The court also considered whether the confession was voluntary and whether its admission prejudiced the appellant's right to a fair trial.

The High Court applied the principles established in *R v Swaffield* and *Pollard v The Queen*, which govern the admissibility of confessions obtained from an accused person. The court held that the trial judge had correctly applied these principles. The evidence indicated that the appellant was properly cautioned and understood his rights, and there was no evidence to suggest the confession was involuntary. The court found that the admission of the confession did not render the trial unfair, as the jury was properly instructed on how to consider the evidence.

The appeal was dismissed.

Orders