Burns v The Queen - [2012] HCATrans 99

[2012] HCATrans 099

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 WEDNESDAY, 2 MAY 2012, AT 2.15 PM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with MS G.A. BASHIR and MR D.P. BARROW. (instructed by Legal Aid (NSW))

MR L.A. BABB, SC: I appear with my learned friend, MS J.A. GIRDHAM. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Thank you. Yes, Mr Game.

MR GAME: If the Court pleases, we have provided to the Court Officers our outline. Shall I pause for a moment while your Honours have a look at it?

FRENCH CJ: That is not a bad idea, Mr Game. Just give us a few minutes.

MR GAME: I am probably being presumptuous, it might be an idea of your Honours looked at the respondent’s outline as well because, looking at them both, you might see that the issues have perhaps narrowed somewhat.

FRENCH CJ: Yes, Mr Game.

MR GAME: If I could take your Honours to the second appeal book, page 602 and following of the written directions, and these written directions and the correctness of them, we would submit, is really at the heart of the resolution of this appeal. What I will do is go through these written directions and then advise your Honours as to which part of the written outline they relate to. If I could take you to page 604, the trial judge – this is 12 August 2009 and these directions had first been handed out on 10 August over the subject of discussion on the 10th, 11th and 12th, and with one limited exception about the voluntary issue in respect of manslaughter by gross criminal negligence the Crown did not demur from these directions.

Now, the joint criminal enterprise is identified at page 604 as a joint criminal enterprise to supply. When I go through this I will give your Honours some references to the oral summing up but I will not take your Honours to that because what happens, essentially, is they are repeated, so there is some extrapolation but there does not appear to be material changes. So, what one sees at 604 there on joint criminal enterprise is repeated at 624.

FRENCH CJ: So far as you are concerned, that aspect was not contentious, is that right?

MR GAME: That is correct, and even on the Crown – if you even go the way in which the Crown ultimately put his case, which the trial judge summarises at 676, correctly summarises, the Crown identifies the “joint criminal enterprise with her husband in selling the drugs”. The Crown had opened on joint criminal enterprise to supply the…

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 99
Case: [2012] HCATrans 99
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