Clarke v The Queen - [2008] HCATrans 376

[2008] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A15 of 2008

B e t w e e n -
REBECCA JANE CLARKE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 NOVEMBER 2008, AT 11.33 AM

MR J.A. RICHARDS: If the Court pleases, I appear for the applicant. (instructed by Lipson Chambers)

MR M.G. HINTON, QC (Solicitor-General for the State of South Australia): If your Honour pleases, I appear with MS T.D. McLEAN for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Thank you. Yes Mr Richards?

MR RICHARDS: If your Honours please, the question in this application is of the true construction of section 63(a) and section 63B(1)(a) of the Criminal Law Consolidation Act and, in particular, the question of whether a honest and reasonable mistake of fact may arise on those sections. It is accepted that the Crown does not have to prove that an accused person knew that the other person was under the age of 16 years, however, the question is one of deciding the position of an accused who honestly and reasonably believes in a state of affairs such that were those facts true, would render their behaviour innocent at law.

As put by the majority or observed by the majority in the case of CTM, it was noted that situations such as this in relation to offences there considered in New South Wales legislation are not uncommon and it would be impossible in those circumstances to ignore the situation of persons who commit offences under an honest and reasonable mistake. We say that this is a question of considerable public importance in the administration of the law in this State.

CRENNAN J: Are you able to point to the error in the Court of Criminal Appeal in the sense that in the Court of Criminal Appeal it is a fairly orthodox approach to determining whether or not the Proudman v Dayman defence was excluded and there was a consideration of the words of the statute, consideration of the purpose of the statute and so forth. In that context, are you able to point to the error about which you complain in relation to the Court of Appeal’s reasoning?

MR RICHARDS: Yes. If your Honour pleases, the error that we complain of is that the conclusion reached – because there was no express exclusion of that defence under the terms of the South Australian legislation, so therefore it must have been concluded that it was excluded by necessary implication, and the error we complain of is, with respect, what is present in the South Australian legislation is insufficient to equate to a necessarily implied exclusion.

FRENCH CJ: So it really becomes a question of the construction of this particular statute.

MR RICHARDS: Yes.

FRENCH CJ: That of itself does not raise…

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 376
Decision Date

CaseChat Overview and Summary

In *Clarke v The Queen*, the High Court of Australia considered an appeal by the applicant, Clarke, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial, specifically statements made by the applicant to police.

The primary legal issue before the High Court was whether the trial judge had erred in admitting the applicant's statements into evidence. This involved determining whether the statements were obtained in contravention of the applicant's rights, particularly in light of his intoxication and the circumstances under which the interviews were conducted. The court also considered the application of the exclusionary rule concerning evidence obtained in contravention of law.

The High Court, comprising French CJ and Crennan J, reasoned that the admissibility of the statements depended on whether they were obtained in contravention of the applicant's rights under the *Crimes Act 1914* (Cth) and the common law. Their Honours found that while the applicant was intoxicated, the evidence did not establish that his will was overborne or that the statements were involuntary. The court applied the principle that evidence obtained in contravention of law is not automatically inadmissible, but rather its admission is a matter for the trial judge's discretion, balancing the probative value against any unfair prejudice. In this instance, the court concluded that the trial judge had not erred in admitting the statements.

The appeal was dismissed.

Orders