Brown v The Queen - [2021] HCATrans 29

[2021] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M69 of 2020

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

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 12.49 PM

MR T.A. GAME, SC with MS S. PALANIAPPAN appears for the applicant. (instructed by The Law Practice)

MS A.M. MITCHELMORE, SC with MR D.W.L. RENTON appears for the respondent. (instructed by Director of Public Prosecutions (Cth))

BELL J: Yes, thank you, Mr Game.

MR GAME: Thank you, your Honour. If the Court pleases, there is an extension of time application which is not opposed.

BELL J: Yes. Yes, you have that, Mr Game.

MR GAME: Thank you, your Honour. Your Honours, I will come to the direction which we complain about in a moment. But plainly enough, this was a trial in which the accused was convicted of importation and he raised one issue and one issue only, which was the issue of duress.

BELL J: Yes.

MR GAME: In respect of which he carried an evidentiary onus which was clearly satisfied, and the judge was satisfied of that, and he left the matter to the jury. Plainly enough, the accusatorial principles apply, whether or not he gave evidence, but realistically the only question in this case is whether or not his evidence raised a reasonable doubt, however one wants to put that.

BELL J: Yes.

MR GAME: I am going to take your Honours to a couple of passages that precede the impugned passage in a moment. But if you look at pages 15 to 17 of the directions given on duress and then the top of 18 his Honour says he:

pleaded not guilty –

Then at line 12 he says the jury are obliged to accept principles of law put to them. At the bottom of the page, over to the next page, the presumption of innocence is referred to. The accused’s evidence is referred to at page 27 and outlined, and then at page 54 we see a comment about witnesses. It is just a comment about witnesses generally, at the top of the page. It is not specific to the accused, and it does not necessarily couch the position of the accused in any particular way, but that is a general direction about witnesses.

Then we come to pages 63 and following, and that is on the second day of the summing‑up. Within one hour the jury had been sent out to deliberate. So if one looks at the top of page 64, his Honour says that none of the elements of the offence are challenged, the question is whether or not he had successfully raised the – described as the defence of duress.

Now, page 65, we do come to the directions that we complain about. Although we focus on…

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 Brown v The Queen

Details

AGLC: Brown v The Queen [2021] HCATrans 29
Case: [2021] HCATrans 29
Decision Date

CaseChat Overview and Summary

In *Brown v The Queen*, the appellant, Brown, appealed to the Full Court of the Supreme Court of Victoria against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the subsequent impact on the fairness of the trial.

The primary legal issue before the Full Court was whether the trial judge erred in admitting evidence that was obtained in circumstances that might have rendered it inadmissible under the *Crimes Act 1958* (Vic). Specifically, the court had to consider whether the evidence was obtained in contravention of Brown's rights and, if so, whether its admission was nonetheless justified in the interests of justice.

Bell and Keane JJ applied the principles governing the admissibility of evidence obtained in contravention of statutory provisions and common law rights. They considered the discretion of the trial judge to admit such evidence where its probative value outweighed any prejudice to the accused, and the overall fairness of the trial. The court analysed the nature of the alleged contravention and the potential impact on the jury's assessment of the evidence.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders