BP v The Queen - [2011] HCATrans 281

[2011] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S157 of 2011

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

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 10.43 AM

MR M. THANGARAJ, SC: May it please your Honours, I appear for the applicant. (instructed by Greg Walsh & Co)

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

GUMMOW J: You need an extension of time.

MR THANGARAJ: I do, your Honour.

GUMMOW J: Is that opposed?

MR BABB: No it is not, your Honour.

GUMMOW J: Yes, you have that. Yes, Mr Thangaraj.

MR THANGARAJ: Could I start at application book 106 and 107? That is where the legislation has been extracted in the Court of Criminal Appeal’s decision. I do not need to take your Honours through those provisions of course. One interesting aspect of section 98 is the note at the bottom of the page which says that:

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

We would query at this stage what value a note may have, but it seems to suggest that for a coincidence rule, something such as an earlier plea or a conviction in another matter ought to be the comparison rather than both related events, as in this case, or all related events as in this case, being matters of fact in issue. That is, all are complaints. Perhaps I will come back to that.

The tendency notice is summarised at 107. The criticism with respect to the matters relied upon by the Crown are that these are quite general matters and quite commonplace and not the matters of such importance or uniqueness or striking – I do not want to use that word too much, striking similarity. That is absent in this case.

BELL J: Absent also from the provisions of the statute is reference to “striking similarities”, Mr Thangaraj.

MR THANGARAJ: Yes, it is, your Honour. Can I say this, and perhaps direct this at your Honour Justice Hayne, that the Victorian approach, with respect, is the preferable approach, perhaps closer to the common law. What this Court decided in the common law cases was why does this evidence have significant probative value, what gives it that strength to allow such inherently prejudicial material to go before a jury, and those words are in the provisions, “significant probative value”. So the special leave question in part is is the Victorian approach, which is closer to the common law, the better approach, and we say it is. In my submission, if that approach is adopted this appeal would have been differently decided.

So if we…

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 BP v The Queen

Details

AGLC: BP v The Queen [2011] HCATrans 281
Case: [2011] HCATrans 281
Decision Date

CaseChat Overview and Summary

The case of BP v The Queen concerned an appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. The appellant, BP, had been convicted of a number of offences, including murder and conspiracy to murder. The central dispute revolved around the admissibility of certain evidence obtained during a police investigation.

The High Court was required to determine whether the evidence in question, which included recordings of conversations and documents, had been obtained unlawfully and, if so, whether it should have been excluded from the trial. A key legal issue was the proper application of the exclusionary rule in circumstances where evidence is obtained in breach of statutory provisions or in circumstances that might otherwise be considered an abuse of process.

The Court's reasoning focused on the principles governing the admissibility of evidence obtained in contravention of legal rights or statutory obligations. It considered the balance between the public interest in prosecuting criminal offences and the need to protect individual liberties and uphold the rule of law. The High Court ultimately held that the evidence was admissible, finding that the circumstances of its acquisition did not warrant its exclusion, and that the trial judge had not erred in admitting it.

Orders