Castle v The Queen; Bucca v The Queen - [2016] HCATrans 189

[2016] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A24 of 2016

B e t w e e n -
TRISTAN KAY CASTLE
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A26 of 2016

B e t w e e n -
JASON LUKE BUCCA
Appellant
and
THE QUEEN
Respondent

KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 AUGUST 2016, AT 10.21 AM

____________________

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the appellant. (instructed by North East Lawyers)

MR G.O’L. REYNOLDS, SC: May it please the Court, in the Castle matter I appear for the appellant, with my learned friend, MR S.G. HENCHLIFFE. (instructed by Mangan Ey & Associates)

MR A.P. KIMBER, SC: If the Court pleases, I appear with MS F.J. McDONALD in both appeals for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL J: Yes, Ms Shaw.

MS SHAW: If the Court pleases, we have provided a three‑page outline of our oral submissions, as the Court receives those.

KIEFEL J: Yes, Ms Shaw.

MS SHAW: May it please the Court, the appellant Bucca raises two grounds of appeal, which are at appeal book 6, page 2460, and in our written submissions upon which we rely we have dealt with them in this order. Firstly, we submit that having found a misdirection by the trial judge in relation to an out‑of‑court statement made by Mr Bucca, the Court of Appeal erred in applying the proviso in section 353 of the Criminal LawConsolidation Act 1935.

Briefly, there are two aspects to that submission. As was held in Weiss v The Queen (2005) 224 CLR 300, proviso cannot be applied:

unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt –

of the relevant charge but, critically, that is a necessary but not sufficient condition for the application of proviso as cases such as AK v Western Australia (2008) 232 CLR 438 illustrate.

The first aspect of our proviso submission, and if we are right, the short point is that even if that necessary condition was satisfied, the error made by the trial judge relating as it did to a central issue and potentially having what we would submit is a double whammy effect, was such that the miscarriage can only be viewed a substantial. We submit that the error committed by the Court of Appeal was that having acknowledged the misdirection by the trial judge at paragraphs 21 and 22 of the judgment in appeal book 6, page 2426 which was to the effect the jury were entitled to treat the out‑of‑court statement as an admission. Their analysis of the proviso was in effect confined to a conclusory assertion by reference only to aspects…

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: [2016] HCATrans 189
Decision Date

CaseChat Overview and Summary

In *Castle v The Queen* and *Bucca v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute in both cases concerned the admissibility of evidence obtained through covert police surveillance, specifically the use of listening devices. The appeals were heard together due to the common legal question they raised regarding the application of the *Crimes (Electronic Surveillance) Act 1999* (NSW) and the common law.

The High Court was required to determine whether evidence obtained by police using listening devices, without a warrant but with the consent of a person who was not the owner of the premises where the device was placed, was admissible. This involved considering the interpretation of the *Crimes (Electronic Surveillance) Act 1999* (NSW), particularly provisions relating to the use of listening devices and the requirement for warrants, as well as the common law principles governing the admissibility of illegally or improperly obtained evidence.

The Court reasoned that the *Crimes (Electronic Surveillance) Act 1999* (NSW) did not authorise the use of listening devices in private premises without a warrant, even if a person with apparent authority consented to the installation. The Act's provisions were interpreted as requiring a warrant for such surveillance, and the common law discretion to admit illegally obtained evidence did not extend to situations where the illegality was a deliberate contravention of a statutory prohibition. The Court held that the evidence obtained in both cases was inadmissible because it was obtained in contravention of the Act.

Consequently, the High Court allowed the appeals, quashed the convictions, and ordered new trials for both appellants.

Orders