Cesan v The Queen; Rivadavia v The Queen - [2008] HCATrans 320

[2008] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S233 of 2008

B e t w e e n -
RAFAEL CESAN
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S236 of 2008

B e t w e e n -
RUBEN MAS RIVADAVIA
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 SEPTEMBER 2008, AT 10.18 AM

__________________

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friend, MR H.K. DHANJI, in the matter of Cesan v The Queen (instructed by Fragomen Global)

MR G. O’L. REYNOLDS, SC: May it please the Court, in the Rivadavian matter I appear for the appellant with my learned friend, MR J.C. HEWITT. (instructed by Legal Aid Commission of NSW)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friends, MR J.G. RENWICK and MR L.K. CROWLEY, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

MR M.G. SEXTON, SC (Solicitor‑General for the State of New South Wales): If the Court pleases, I appear with my learned friend, MS R.A. PEPPER, for the Attorney‑General for New South Wales who intervenes in both proceedings. (instructed by Crown Solicitor’s (NSW))

MS P.M. TATE, SC (Solicitor‑General for the State of Victoria): May it please the Court, I appear with my learned friend, MS K.L. WALKER, for the Attorney‑General for Victoria, intervening in both proceedings. (instructed by Victorian Government Solicitor)

FRENCH CJ: Before we proceed, the Court would invite the parties to address first on the question whether, Chapter III and section 80 of the Commonwealth Constitution apart and section 11 of the District Court Act apart, there was a miscarriage of justice within the meaning of section 6(1) of the Criminal Appeal Act, whether no substantial miscarriage of justice actually occurred within the meaning of that section and whether, even if no substantial miscarriage of justice actually occurred, the proviso to section 6(1) of the Criminal Appeal Act 1912 is incapable of applying. We would hear oral argument on behalf of the appellants and the respondents on that question. We will not call upon the intervenors to address oral argument on that issue at this stage. Is that clear enough, Mr Game?

MR GAME: Yes. Your Honour has taken the wind out of my constitutional sails.

FRENCH CJ: Indeed, we want the common or garden variety stuff first.

MR GAME: I just have to completely recast what I was going to say, but I will struggle through.

FRENCH CJ: Thank you.

MR GAME: So when I say “integrity of the judicial process” I will just leave out Chapter III. If you want it back in, then I am well able to reintroduce it. I do not really need to tell…

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: [2008] HCATrans 320
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Cesan and Rivadavia against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices planted in the applicants' vehicles. The applicants argued that the use of this evidence violated their right to privacy and was therefore inadmissible.

The Court was required to determine whether the common law of Australia recognises a right to privacy that would render evidence obtained by unlawful or unauthorised surveillance inadmissible. It also had to consider whether, even if such a right existed, the evidence in question should have been excluded on discretionary grounds, such as being unfairly prejudicial or an abuse of process.

The majority of the High Court held that while a right to privacy is a concept recognised in Australian law, it is not a standalone ground for excluding evidence obtained through unauthorised surveillance. Instead, the admissibility of such evidence is governed by the common law rules of evidence, including the discretion to exclude unfairly prejudicial evidence or evidence obtained in contravention of statutory provisions. The Court found that the evidence obtained through the listening devices was admissible, as its probative value outweighed any potential prejudice, and there was no statutory prohibition against its admission.

The appeals were dismissed.

Orders