Burns v The Queen - [2012] HCATrans 100

[2012] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S46 of 2012

B e t w e e n -
NATALIE BURNS
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 MAY 2012, AT 10.19 AM

(Continued from 2/5/12)

FRENCH CJ: Yes, Mr Babb.

MR BABB: Your Honours, in relation to this matter it is my submission that clearly throughout the whole case this was a matter that went well beyond mere supply, as far as the Crown case was put. The cases were diametrically opposed, of course, in that the defence case was a plea of not guilty in relation to supply and a challenge to whether supply took place, whether ingestion occurred within the house, whether drugs had been taken once he had left the premises and returned to the backyard.

It was certainly never the case that this was a supply by merely handing over a vial of methadone for it to be injected at some other place in some other way. It was always a case of supply by means of injection within the house using the syringe and butterfly clip that was to be provided. It was clear that the needle was provided because in the listening devices at appeal book 446 the appellant talks about the deceased receiving “the best outfit” and there was evidence within the case that “outfit” was a reference to the syringe and needle used to inject.

Your Honours, on this case, certainly in relation to injection by the appellant, then questions of an informed and voluntary decision by the deceased did not arise because it was the direct act of the appellant.

FRENCH CJ: Except that the judge’s written direction to the jury put the unlawful and dangerous act – this is at 606 – as supply.

MR BABB: I do, your Honour, yes.

FRENCH CJ: What does it matter what the Crown case was? This was what the judge told the jury.

MR BABB: It was in the context of supply. Your Honour can encompass supply by injection and supply in the course of assisting in the injection, and it was clear that the Crown case was beyond mere supply; it was supplied by injection or alternatively supply in the course of assisting to inject.

HAYNE J: How is it then that at page 556 we see the Crown Prosecutor referring at lines 23 and 25 to the possibility of the deceased swallowing the methadone? Again at 29? I mean, you are trying to put the case into a straightjacket that it did not wear at trial, are you not, Mr Babb?

MR BABB: No, your Honour. It was clearly put that way at trial by the Crown Prosecutor.

FRENCH CJ: Not in opening.

MR BABB: Not in opening, your Honour, and your Honour asked me ‑…

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 Burns v The Queen

Details

AGLC: Burns v The Queen [2012] HCATrans 100
Case: [2012] HCATrans 100
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Burns against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police, which the appellant argued was unlawfully obtained and therefore inadmissible.

The primary legal issue before the High Court was whether the admission of the covert recording, despite its potentially unlawful origin, was justified under the 'rule in Bunning v Cross'. This rule permits the admission of unlawfully obtained evidence if the public interest in its admission outweighs the public interest in the strict observance of the law. The Court also considered the application of the 'discretionary exclusion' of evidence, which allows a judge to exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.

The High Court reasoned that the 'rule in Bunning v Cross' requires a balancing exercise between competing public interests. In this instance, the Court found that the probative value of the recording in establishing the appellant's guilt was high, and that the unlawful nature of its acquisition, while a serious matter, did not necessarily render its admission contrary to the public interest. The Court also considered the potential for unfair prejudice, but concluded that the jury could be adequately cautioned to mitigate any such risk. The Court affirmed that the admissibility of evidence obtained unlawfully is a matter for judicial discretion, guided by the principles of fairness and the public interest.

The appeal was dismissed, with the High Court upholding the conviction.

Orders