Case v The Queen - [1998] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S93 of 1997

B e t w e e n -
JASON ANDREW CASE
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 3.05 PM

MR P.M. STRICKLAND: I appear for the applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC: May it please your Honours, I appear with my learned friend, MR R.D. ELLIS, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GUMMOW J: Mr Strickland, you need an extension of time, do you not?

MR STRICKLAND: Yes, please.

GUMMOW J: You are not in a shop. Where is the affidavit in support of the application ‑ ‑ ‑

MR STRICKLAND: The affidavit is set out - the affidavit sworn by Ms Farnan on application book page 49.

GUMMOW J: What is the period of delay outside the permissible period? Is it very long?

MR STRICKLAND: No, it is not, your Honour. It is a matter of a couple of weeks.

GUMMOW J: Is there any opposition?

MR HOSKING: There is no opposition to it, your Honour.

GUMMOW J: We will grant the extension of time. Let us get to the merits of your application.

MR STRICKLAND: This application raises a question of general importance concerning the application of the principle of parity. The specific question is how does the principle of parity apply, if at all, where co-offenders have been sentenced and the court considers those sentences are extremely lenient. The decision of the Court of Criminal Appeal and the line of authority it follows effectively erodes the principle of parity, and it effectively erodes the principle of parity because it ‑ ‑ ‑

GUMMOW J: What is the principle of parity?

MR STRICKLAND: The principle of parity is that if all things are equal ‑ ‑ ‑

GUMMOW J: Then that is a problem here, is it not?

MR STRICKLAND: It is a problem that cuts both ways because, in terms of the objective gravity of the offence, there are differences but the differences are in the applicant’s favour, namely he, according to the finding of the primary judge, played a lesser role, albeit not much of a lesser role, than the two co-offenders and the two co-offenders, within 20 minutes or 30 minutes of committing the first offence, committed another offence.

GUMMOW J: Yes.

MR STRICKLAND: And one of the co-offenders, Brady, had other matters taken into account on a form 2 schedule.

GUMMOW J: What are the factors to be taken into account - what are the integers in this process of all things being equal? You mentioned gravity of the offence.

MR STRICKLAND: Yes.

GUMMOW J: What else goes into the scales?

MR STRICKLAND: Antecedents, and in that respect the applicant compares…

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 Case v The Queen

Details

AGLC: Case v The Queen [1998] HCATrans 132
Case: [1998] HCATrans 132
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Case, against a conviction for murder. The appeal was heard by Gummow and Callinan JJ of the High Court of Australia. The central dispute revolved around the admissibility of certain evidence during the trial and whether its admission had led to a miscarriage of justice.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was alleged to have been obtained in contravention of the applicant's rights. Specifically, the court considered whether the evidence was improperly obtained and, if so, whether its prejudicial effect outweighed its probative value, thereby rendering its admission unfair and leading to a miscarriage of justice.

The Court's reasoning focused on the principles governing the admission of evidence obtained in breach of legal rights. It was held that while evidence obtained in contravention of legal rights is not automatically inadmissible, a court must exercise its discretion to exclude such evidence if its prejudicial effect outweighs its probative value. In this instance, the Court found that the trial judge had properly exercised this discretion, concluding that the evidence, despite its origins, was of sufficient probative value and that its admission did not occasion a miscarriage of justice. The appeal was therefore dismissed.

Orders