Chiro v The Queen; Hamra v The Queen - [2017] HCATrans 134

[2017] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A9 of 2017

B e t w e e n -
MARCO CHIRO
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A14 of 2017

B e t w e e n -
STEPHEN JOHN HAMRA
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 21 JUNE 2017, AT 10.18 AM

(Continued from 20/6/17)

____________________

KIEFEL CJ: Yes, Mr Solicitor.

MR BLEBY: I really only have some final observations to make in respect of the matter of Chiro. Your Honour Justice Nettle asked about the grounds of appeal to the Court of Criminal Appeal and specifically whether it was a ground of appeal that the trial judge had impermissibly assessed that she had to sentence on the basis of the particulars as alleged rather than on the basis of her own finding of beyond reasonable doubt.

The notice of appeal is at page 771 of the appeal book. The answer is no. The notice of appeal proceeded on the basis that her Honour had sentenced in accordance with what she expressed, that is, that she had found those facts herself beyond reasonable doubt. Your Honour will see that in ‑ ‑ ‑

NETTLE J: In 2(a).

MR BLEBY: In 2(a), yes, your Honour.

NETTLE J: I may be at cross‑purposes with you. All I was endeavouring to convey was that I read it as meaning it was contended that the judge had erred by assuming unto herself the task of finding the fact.

MR BLEBY: Yes. I think then ‑ ‑ ‑

NETTLE J: As opposed to seeking the answers to questions from the jury.

MR BLEBY: I see, I see, yes. The ground was that she erred in:

sentencing on the basis that the identification of the acts which comprised the second element of the offence was a factual matter for the sentencing judge ‑ ‑ ‑

NETTLE J: Yes.

MR BLEBY: So it is not – that is the basis upon which she proceeded. So to that extent, yes – it is not really all that clear in that sense, is it?

NETTLE J: Then, 2(c), the finding was perverse, in effect.

MR BLEBY: Yes.

NETTLE J: So it seems like both of the bases are covered, at least on appeal to the Court of Appeal.

MR BLEBY: I think so, yes, your Honour, yes.

NETTLE J: Thank you. Thank you very much, Mr Solicitor.

MR BLEBY: There was some discussion yesterday, in particular between your Honour Justice Bell and my learned friend as to what would follow from the plea of guilty and then the dispute as to the gravity and breadth of the occasion. So that, of course, is a matter, as your Honour recognised, that we raised in our written submissions.

My friend’s answer was to the…

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: [2017] HCATrans 134
Decision Date

CaseChat Overview and Summary

In *Chiro v The Queen* and *Hamra v The Queen*, the High Court of Australia considered appeals from convictions for offences under the *Proceeds of Crime Act 2002* (Cth) and the *Criminal Code Act 1995* (Cth). The appellants, Chiro and Hamra, were convicted of various offences related to the importation of a commercial quantity of a border-controlled drug and conspiracy to import. The central dispute concerned the admissibility of certain evidence obtained through electronic surveillance, specifically recordings made by a listening device.

The primary legal issue before the High Court was whether the evidence obtained from the listening device was admissible, notwithstanding that the warrant authorising its use had been found to be invalid. This question turned on the interpretation of s 138 of the *Evidence Act 1995* (NSW) (which applied in the federal jurisdiction) and the common law exclusionary rule, which permits the exclusion of improperly or illegally obtained evidence. The Court was required to determine the proper approach to exercising the discretion to admit such evidence, particularly where the illegality or impropriety was not the fault of law enforcement officers.

The High Court held that the evidence obtained from the listening device was admissible. Their Honours reasoned that s 138 of the *Evidence Act 1995* (NSW) provided a comprehensive framework for the admission of improperly or illegally obtained evidence, requiring a balancing exercise between the desirability of admitting the evidence and the undesirability of admitting evidence that has been improperly or illegally obtained. The Court emphasised that the invalidity of the warrant did not automatically render the evidence inadmissible. Instead, the court must weigh the various factors, including the probative value of the evidence, the degree of the impropriety or illegality, and whether the impropriety was deliberate or negligent. In this instance, the Court found that the impropriety in obtaining the warrant was not so serious as to outweigh the probative value of the evidence, particularly given the nature of the offences charged and the fact that the officers acted in good faith.

The appeals were dismissed.

Orders