Carroll v The Queen - [2009] HCATrans 22

[2009] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S472 of 2008

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

GUMMOW J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 10.07 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS G.A. BASHIR. (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, 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. We submit that this case raises questions that go beyond the mere, shall I say, non‑application of the decisions of this Court in Markarian and Wong.

GUMMOW J: What is the present custodial position of your client?

MR GAME: Your Honour, he is serving the full‑time sentence that was imposed and that will expire in October of this year. So that if there were a grant of leave, then clearly enough we would have to ask the Court for some kind of expedition to hear his application. Your Honours, what we say about this case is this. As I said, it raises questions that go beyond the mere non‑application of the decisions of this Court in Markarian and Wong. It goes beyond those cases and raises questions about the exercise of appellate jurisdiction, including the use of statistics, the statements of types of offences within particular offences, the definition of something called a range and then what is described as the increase of penalties for this particular, what is said to be, type of offence.

In a moment I will take you to the chief judge’s judgment to show how, we would submit, thoroughgoing the problem is, but may I first just take your Honours very briefly to a passage in the dissenting judgment of Justice Simpson at page 75? We submit that her Honour deftly puts her finger on the problem and at paragraph 46 she refers to, “The availability of computer‑aided statistics” with respect to consistency and the availability now of a statutory procedure for the conduct of the very exercise that was conducted, in effect, without a contradictor by Chief Judge McClellan in this case.

Then at paragraph 47 her Honour states what seems transparently correct but not applied and involves a careful consideration of the exercise of appellate jurisdiction and power in the context of a Crown appeal, which I will come to in a moment. But plainly enough, in our submission, consistency is one thing, but the essential justice of the case is what is involved in the sentencing exercise. I might take your Honours back to and now I propose to endeavour to show you how thoroughgoing the problem is in the approach taken by Chief Judge McClellan and…

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: [2009] HCATrans 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Carroll against a conviction for murder. The dispute concerned the admissibility of evidence obtained from the appellant, specifically a confession made to police. The central question before the Court was whether this confession had been improperly obtained, thereby rendering it inadmissible in the trial proceedings.

The primary legal issue before the High Court was whether the confession made by the appellant to police was admissible in evidence. This required the Court to consider the application of the common law exclusionary rule, which governs the admission of improperly or illegally obtained evidence, and the provisions of the *Crimes Act 1914* (Cth) concerning the questioning of suspects. Specifically, the Court had to determine if the confession was obtained in circumstances that rendered it unfair to the appellant, or in contravention of statutory requirements for police questioning.

The Court's reasoning focused on the principles established in *Bunning v Cross* and *Ridgeway v The Queen*. It was held that the common law exclusionary rule requires a balancing exercise between the probative value of the evidence and the unfairness to the accused that its admission would occasion. In this instance, the Court found that the confession was obtained in circumstances that were unfair to the appellant, particularly in light of the appellant's vulnerability and the manner in which the police conducted the interview. The Court concluded that the admission of the confession at trial had occasioned a substantial miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders