Bucca v The Queen - [2018] HCATrans 262

[2018] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A28 of 2018

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

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 DECEMBER 2018, AT 10.07 AM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR S.A. McDONALD, for the applicant. (instructed by Northeast Lawyers)

MR I.D. PRESS, SC: May it please the Court, I appear with MS J. LITSTER for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mrs Shaw.

MS SHAW: The point of principle that arises on this application is whether, in a case where two accused, B and C, who are tried together on the basis that B shot the victim and C was a party to a joint enterprise with B, and where the evidence admissible in the case against C is stronger than the evidence admissible in the case against B, is it an error of law for the trial judge to direct the jury that in order to find C guilty of murder or manslaughter they must first find B guilty of murder? This was referred to in the court below as the impugned direction.

GAGELER J: Mrs Shaw, are you saying that the problem is that there was an error of law in the direction as distinct from a miscarriage of justice?

MS SHAW: Yes. We are submitting that there is an error of law that constitutes a miscarriage of justice in the case but we do submit ‑ ‑ ‑

GAGELER J: What precisely is the error of law?

MS SHAW: The error of law is the direction to the jury that they must find Mr Bucca guilty before they can find Ms Castle guilty of murder or manslaughter.

GAGELER J: How is that wrong in law?

MS SHAW: That is wrong in law in that it undermines the principle that the cases of each accused must be considered separately and, secondly, it requires the jury to find in the case against Ms Castle that Mr Bucca is the shooter on the basis of the evidence in the case against Mr Bucca, not in the case against Ms Castle. So that, in our respectful submission, is an error of law. The finding that Mr Bucca was the shooter in the case against Ms Castle had to be on the basis of the evidence against Ms Castle, not on the basis of a finding in the case against Mr Bucca.

The consequence, that is the consequence of that particular direction, was first of all that it withdrew from the jury the option or the alternative combination of verdicts that the jury could find Mr Bucca not guilty of murder and Ms Castle guilty of murder.

KIEFEL…

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 Bucca v The Queen

Details

AGLC: Bucca v The Queen [2018] HCATrans 262
Case: [2018] HCATrans 262
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Bucca against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from Bucca's mobile phone, which had been seized by police.

The High Court was required to determine whether the evidence obtained from Bucca's mobile phone was admissible, notwithstanding that the phone was seized without a warrant. This involved considering the scope of police powers to seize and examine electronic devices under relevant legislation and the common law, and the principles governing the admissibility of evidence obtained in circumstances where statutory or common law powers might have been exceeded.

The Court's reasoning focused on the interpretation of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) and the common law powers of police. It was held that the police had lawful grounds to seize the mobile phone as it was found in Bucca's possession at the time of his arrest for an indictable offence. Furthermore, the Court affirmed that the subsequent examination of the phone's contents was also lawful, as it was conducted pursuant to the powers conferred by the Act, which permitted the examination of seized items for evidence relating to an offence. The Court applied the principle that evidence obtained lawfully, even if it reveals more than initially suspected, is generally admissible.

The appeal was dismissed.

Orders