MR P. BYRNE, SC: May it please your Honours, I appear for the applicant with my learned friends, MR D.H. PATCH and MS G.A. BASHIR. (instructed by Rutland’s Law Firm)
MR R.F. SUTHERLAND, SC: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)
CALLINAN J: Yes, Mr Byrne.
MR BYRNE: Your Honours, there is initially an application that the time within which this application for special leave be brought be extended.
CALLINAN J: Is that opposed, Mr Sutherland?
MR SUTHERLAND: No, your Honour.
CALLINAN J: Yes, go ahead. You have that leave.
MR BYRNE: Thank you. Your Honours, this matter raises two questions regarding the interpretation and application of the provisions of the Evidence Act in New South Wales, which are, in our submission, important matters because of their frequency of occurrence in practice in the criminal courts. The first concerns the circumstances in which a warning regarding the potential unreliability of a witness should be given to a jury, that being a matter raising section 165 of the Act. The second matter concerns the admissibility of evidence of relationship – conduct which is separate from the offence charged, but which is used to prove the commission of the offence charged.
In our submission, as we have set out in the outline of argument that has been filed in the Court, that raises questions of the application of both section 97 and section 101 of the Evidence Act. The relationship evidence that was introduced in this case concerned earlier transactions in which the applicant was involved with the witness, Wang, which were clearly drug deals in which the two of them were involved. That is according to the evidence that Mr Wang gave. That evidence was admitted, but it was admitted purely as relationship evidence ‑ ‑ ‑
CALLINAN J: Was it objected to?
MR BYRNE: Yes, it was objected to.
CALLINAN J: Objected to on any basis.
MR BYRNE: Yes, your Honour. Of course, that was the main basis of the challenge to the correctness of the conviction in the Court of Criminal Appeal, that this material should not have been admitted. It should have been excluded, because it did not satisfy the tests which are established in the Evidence Act for the admissibility of tendency evidence.
HEYDON J: Presumably, the argument must be, even if it were relevant, it could only come in under 97 or 101. If it did not come in under those sections, it would be too prejudicial and should have been excluded under 135 and 137. That must have…
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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AGLC
Chan v The Queen [2004] HCATrans 68
Case
[2004] HCATrans 68
Decision Date
CaseChat Overview and Summary
Chan appealed his conviction for armed robbery from the Supreme Court of New South Wales to the High Court of Australia. The appeal concerned the admissibility of evidence obtained from the appellant's mobile phone.
The central legal issue before the High Court was whether the evidence derived from the appellant's mobile phone, which was seized pursuant to a search warrant, was admissible at trial. Specifically, the Court had to consider whether the search warrant was validly issued and, if not, whether the evidence obtained was nonetheless admissible under the proviso to section 13(1) of the *Crimes (Appeal and Regulation) Act 1971* (NSW) (now repealed).
Callinan and Heydon JJ held that the search warrant was invalid because it did not specify the offence for which the search was authorised with sufficient particularity. However, their Honours found that the evidence obtained from the mobile phone was admissible under the proviso, as it was overwhelmingly probable that the jury would have convicted the appellant even if the evidence had not been admitted. The Court reasoned that the other evidence against the appellant was so strong that the admission of the mobile phone evidence did not occasion a miscarriage of justice.