Braysich v The Queen - [2010] HCATrans 189

[2010] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P45 of 2009

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

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 30 JULY 2010, AT 12.18 PM

MR G.R. DONALDSON, SC: If your Honours please, I appear with MR S.J. LEMONIS for the applicant. (instructed by Ainslie van Onselen – Lawyer)

MR W.B. ZICHY‑WOINARSKI, QC: If the Court pleases, I appear with MS W.F. GILLAN for the respondent. (instructed by Director of Public Prosecutions (Cth))

HAYNE J: Yes, thank you. We might be assisted first, Mr Donaldson, by hearing from the respondent in this matter.

MR DONALDSON: If your Honour pleases.

MR ZICHY‑WOINARSKI: If your Honour pleases. Your Honours, in our outline of submission in paragraph 1 we have identified why special leave should not be granted. Paragraph 1, as I say, sets out those matters. To that should be added one further matter so far as a question of general importance and general application is concerned, that the corresponding provision is now to be found in section 1041B of the Act, and there is no defence contained within section 1041B, or any of the other provisions of the Act, in relation to section 998(6) as it then was, your Honours.

BELL J: What of the administration of justice in this case?

MR ZICHY‑WOINARSKI: I was going to turn to that next if I may, your Honours. Your Honours, we take, will have received a supplementary submission that has been filed of behalf of our friends. It does raise matters in a way that was not argued in the court below and, in particular, the issue that is particularly raised by the supplementary submission relates to the evidence given by the applicant together with other evidence which went to the question of whether there had been a change in the beneficial ownership of the shares. That, in our submission, really advances the matter no further, and I will come to that in a moment if I may.

The case that was run below was clearly, in our submission, one where the applicant sought to run a case that the Crown could not establish the deeming provision under section 998(5) because it would not be able to establish knowledge in the applicant that he knew there was no change in the beneficial ownership. The verdict of the jury was clearly one that accepted the Crown’s case and necessarily, therefore, rejected the applicant’s specific evidence in relation to his belief. Without that there could have been no verdicts of guilty so far as the applicant was concerned.

Now, that that was the real defence that was being run below, in our submission, is further demonstrated by the fact that the co‑accused at the trial, the man called Mr…

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: [2010] HCATrans 189
Decision Date

CaseChat Overview and Summary

Braysich appealed his conviction for murder in the Supreme Court of Western Australia to the High Court of Australia. The appeal concerned the admissibility of evidence obtained from the appellant's mobile phone.

The central legal issue before the High Court was whether the evidence obtained from the appellant's mobile phone, which had been seized pursuant to a search warrant, was admissible at trial. Specifically, the Court had to consider whether the search warrant was validly issued and, if not, whether the evidence obtained was nonetheless admissible under the proviso to s 135 of the *Evidence Act 1906* (WA) or under the common law.

The High Court held that the search warrant was invalid because it had been issued by a police officer who was not an authorised justice of the peace. Consequently, the evidence obtained from the mobile phone was unlawfully obtained. However, the Court found that the evidence was nonetheless admissible under the proviso to s 135 of the *Evidence Act 1906* (WA), which allows for the admission of unlawfully obtained evidence if its probative value outweighs any prejudice to the accused. The Court reasoned that the evidence was highly probative of the appellant's guilt and that any prejudice was outweighed by its significance to the prosecution's case.

The appeal was dismissed.

Orders