CB v The Queen - [2013] HCATrans 277

[2013] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S18 of 2012

B e t w e e n -
CB
Applicant
and
THE QUEEN
Respondent
Application to reopen special leave

FRENCH CJ
HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 9.30 AM

MR J.F. BLEECHMORE: If your Honours please, I appear on behalf of the applicant in this matter. (instructed by Phillip Ryan Solicitors)

MR P.W. NEIL, SC: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Bleechmore.

MR BLEECHMORE: Your Honours, our case, which must be that there has been a serious miscarriage of justice in this case, arises, we say, from the erroneous quashing of the permanent stay granted by the primary judge. Our case is and our submission is that the decision, the reasons for judgment of the primary judge are compelling and have been vindicated and demonstrated to be correct in the light of X7, that is, her Honour correctly decided, and the Court of Criminal Appeal, with respect, incorrectly decided, or incorrectly imputed error to the primary judge when she said that the examination of my client by the ACC was an “interference with the administration of justice” in itself, regardless of whether information derived from that examination was communicated to investigating and prosecuting agencies. She made a careful analysis of the relevant ‑ ‑ ‑

HAYNE J: Well, now, is that right? Is not the conclusion in X7 that the examination was unauthorised and that is a conclusion reached as a matter of generality rather than as a matter of specificity in a particular case?

MR BLEECHMORE: Yes, it is certainly so, your Honour, but there are two steps here. First of all, has there been an interference with the administration of justice produced ‑ ‑ ‑

HAYNE J: In the particular case.

MR BLEECHMORE: ‑ ‑ ‑ by the examination and then the second question, we would respectfully submit, is whether the circumstances under which that examination was conducted and other circumstances justify a permanent stay. But the first question, her Honour was correct – in fact the parties agree that that was the proper analysis and the way in which the matter should proceed. The question should be the unlawfulness of the examination and, secondly, whether circumstances justified a permanent stay. We submit that her Honour was correct in deciding that the examination of CB was unlawful and constituted an interference with the administration of criminal justice and a contempt of court.

Secondly, and just as importantly, her Honour made a careful examination of the circumstances and the relevant authorities and, in our respectful submission, no error can be demonstrated in her Honour’s analysis of relevant matters and her decision that the exceptional remedy of a permanent stay was justified in this case and that their…

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: [2013] HCATrans 277
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by CB against a conviction for an offence. The central dispute concerned the admissibility of certain evidence obtained from CB.

The High Court was required to determine whether the evidence obtained from CB was improperly or illegally obtained, and if so, whether it should have been excluded from use at trial under section 138 of the *Evidence Act 1995* (NSW). This involved considering the balance between the public interest in having all relevant evidence adduced and the public interest in discouraging unlawful or improper conduct by law enforcement officers.

The Court analysed the nature of the conduct of the police officers in obtaining the evidence, noting that the question of whether evidence was improperly or illegally obtained required a factual assessment. It applied the principles established in cases such as *Bally v The Queen* and *DPP (NSW) v P*, which outline the factors to be considered when exercising the discretion to exclude improperly or illegally obtained evidence. The Court ultimately found that the evidence was improperly obtained and that the discretion to exclude it under section 138 of the *Evidence Act 1995* (NSW) should have been exercised.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the trial court for a retrial.

Orders