Conway v The Queen - [2001] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Registry
No C11 of 2001
B e t w e e n -
JOHN TERENCE CONWAY
Appellant
and
THE QUEEN
Respondent

GAUDRON ACJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 OCTOBER 2001, AT 10.18 AM

MR S.W. TILMOUTH, QC: If the Court pleases, I appear with my learned friend, MR J. PAPPAS, for the appellant. (instructed by pappas j. ‑ attorney)

MR P.S. HASTINGS, QC: If the Court pleases, I appear with my learned friends, MR S.J. ODGERS, SC and MS P.J. de VEAU, for the respondent. (instructed by the Director of Public Prosecutions (ACT))

GAUDRON ACJ: Yes, Mr Tilmouth.

MR TILMOUTH: If the Court pleases, if I could commence my submissions and deal briefly if I may with the facts and, if the Court pleases, in our submission it is quite important to appreciate at the start that there was very little direct evidence against the appellant, Conway ‑ ‑ ‑

KIRBY J: I am not entirely clear what the theory of the case that your client ultimately propounded was. There was a question which apparently suggested that Ms McFie was the sole actor in instigating the murder, but was that ultimately your client’s case, can I ask you that?

MR TILMOUTH: It was partly that, your Honour. First of all, it was not involvement and, secondly, it was, if McFie was involved, it was a frolic of her own, if I can put it that way. It is certainly true that at one point counsel for the appellant did cross-examine McFie to suggest that and that led to what was called in the courts below but not pursued here, the judge’s intervention, but there is no doubt that one aspect of his defence was that it was a frolic of his own, if I can put it that way, in which he was not involved at all. The prime part of his case was simply a denial of the relevant events and, if the Court pleases, in my submission, there was very little against him, at least directly, in the matter.

Could I summarise it, if I may, in this way first generally and then a little bit more specifically. The Crown case relied heavily, as the Crown Prosecutor acknowledged in his address to the jury and was clear on the evidence of Williams and Steer, in sum, your Honours, Williams gave evidence of the killing of course but, in the events leading up to it, he gave evidence about a conversation or conversations involving McFie and Conway - and I will identify these briefly in the papers in a moment – that he wanted his wife “knocked”, was the word used, that he needed it done soon and that there would be a payment of $15,000 and it was to look as if it was a heroin overdose.

As regards Williams,…

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.

Continue reading Conway v The Queen

Details

AGLC: Conway v The Queen [2001] HCATrans 356
Case: [2001] HCATrans 356
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Conway against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from the appellant, which he argued was obtained in contravention of his rights.

The primary legal issue before the Court was whether the evidence, specifically a confession made by the appellant, was improperly obtained and therefore inadmissible under section 138 of the *Evidence Act 1995* (NSW). This required the Court to balance the probative value of the evidence against the impropriety of its admission and the unfairness to the appellant.

The Court engaged in a detailed analysis of the circumstances surrounding the obtaining of the confession. It considered the appellant's mental state, the duration of his detention, and the conduct of the police. The judges applied the principles established in cases concerning the admissibility of confessions, particularly the need to ensure that any confession was voluntary and not the result of oppression or unfair inducement. The Court weighed the public interest in admitting relevant evidence against the public interest in discouraging unlawful or unfair conduct by law enforcement officers.

Ultimately, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders