Burns v The Queen - [2012] HCATrans 32

[2012] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S339 of 2011

B e t w e e n -
NATALIE BURNS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2012, AT 11.13 AM

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

MR L.A. BABB, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Game.

MR GAME: If the Court pleases, there is an extension of time sought and I do not think it is opposed.

GUMMOW J: Is that opposed?

MR BABB: It is not opposed.

GUMMOW J: Thank you. You can have that extension.

MR GAME: If the Court pleases, in our submission, there are two questions of general importance that arise in this case. The first concerns the nature of duty and breach in a case involving an allegation of manslaughter by gross criminal negligence based on an omission and the second concerns the issue of causation.

A convenient point to start is in a judgment which his Honour Judge Woods gave at the close of the case. The relevant part of it - if you go to the application book at page 9 you will see that really developed from Beardsley and Jones in Taktak, a duty of care in a case involving an allegation of breach by omission was found in a case where a person has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering ‑ ‑ ‑

GUMMOW J: What is the legal criterion we are applying here?

MR GAME: The legal criterion?

GUMMOW J: Yes. These submissions roam around the law of negligence and civil cases but what is the proposition of criminal law here?

MR GAME: The proposition – that is a difficulty with the area ‑ ‑ ‑

GUMMOW J: I know.

MR GAME: This is really about – it is quite difficult – it is silly for me to say that, but it is really about how you bring the tort into the crime, whether you, in fact, the idea in the tort is the same idea as you bring over to the identifying the duty in criminal law. The Court of Criminal Appeal eschewed that very exercise. What we actually say is that you have to bring to consideration of this question the very kind of considerations that were brought in cases such as Miller v Miller where one is kind of identifying how the crime is brought into the tort which is the considerations – the incongruity of the relationship between the tort law and the criminal law are kind…

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: [2012] HCATrans 32
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.

The High Court was required to determine whether the recording, made in circumstances where the appellant was unaware he was being recorded, was unlawfully obtained and, if so, whether it should have been excluded from evidence. This involved considering the application of the common law exclusionary rule concerning illegally or improperly obtained evidence, and the principles governing the exercise of discretion to exclude such evidence.

The Court affirmed that the common law exclusionary rule applies to evidence obtained in contravention of a person's rights, even if the contravention does not amount to a criminal offence. However, the Court also reiterated that the admission of such evidence is not automatic and requires the exercise of judicial discretion. This discretion involves balancing the probative value of the evidence against its prejudicial effect and the unfairness that might arise from its admission, particularly where the evidence was obtained improperly. The Court found that the recording, while improperly obtained, possessed significant probative value and that its admission did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders