Crump v The Queen - [1995] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S165 of 1994

B e t w e e n -
KEVIN CRUMP
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 10.09 AM

MR P.J. HIDDEN, QC: May it please the Court, I appear with my learned friend, MR P.M. STRICKLAND for the applicant. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN: May it please the Court, I appear for the respondent in this appeal. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Hidden.

MR HIDDEN: May it please the Court. Your Honours, this application raises the interpretation of section 13A of the New South Wales Sentencing Act which was introduced in 1989. At that time, the indeterminate sentence was abolished in New South Wales and thereafter sentences are now either for the term of the prisoner’s natural life or for a determined number of years. Your Honours, as far as existing life sentenced prisoners are concerned, the legislation bears some similarities to the Victorian legislation which this Court considered in Bugmy v The Queen but there are, of course, some differences.

GUMMOW J: The legislation has been amended in New South Wales, has it not?

MR HIDDEN: It has, your Honour, yes. In 1993 significant amendments were made.

GUMMOW J: Since the time of the relevant events here?

MR HIDDEN: Indeed, your Honour and in fact, if this applicant did reapply, as I understand he has, your Honour, he comes under the new system which carries certain jeopardies to which he was not subject at the time of this application. Your Honours, it is perhaps of some significance to remember that section 13A, exceptionally now in New South Wales, empowers on a redetermination of sentence the specification of a minimum term of a number of years and an additional term of a prisoner’s life which cannot be done in any other circumstance now in New South Wales.

Now, what the application really raises, your Honours, is the question of what are the considerations at the stage of determining whether the application should be granted, as opposed to the considerations as determining what the sentence should be if it is. It is clearly a two-stage process. In short, your Honour, our submission is that both the primary judge and the majority of the Court of Criminal Appeal erred in their approach to that first stage of the process. Indeed, your Honours, Mr Justice Hunt, who affirmed the primary judge’s decision on another basis but who was alone in that was, in our respectful submission, correct when he said, in effect, at the stage of whether an application should be granted a judge need not be satisfied that the prisoner is then suitable for release or will…

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 Crump v The Queen

Details

AGLC: Crump v The Queen [1995] HCATrans 119
Case: [1995] HCATrans 119
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Crump against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, specifically statements made by him and items seized from his person, following his arrest. The appellant argued that these items and statements were obtained in contravention of his rights and should have been excluded from evidence.

The High Court was required to determine whether the evidence obtained from Crump after his arrest was unlawfully obtained, and if so, whether it should have been excluded from the trial. This involved considering the scope of police powers upon arrest and the principles governing the admission of evidence obtained in circumstances where those powers may have been exceeded or improperly exercised. The court also had to assess whether the admission of the evidence, if unlawfully obtained, would have resulted in a miscarriage of justice.

The Court applied the principles established in *Bunning v Cross* and *Kingswell v The Queen*, which govern the admissibility of illegally or improperly obtained evidence. Brennan CJ, Dawson and Gummow JJ held that the evidence in question was obtained in contravention of the appellant's rights. However, they concluded that the admission of this evidence did not occasion a miscarriage of justice, and therefore, the appeal should be dismissed. The Court emphasised that the question of whether a miscarriage of justice has occurred is a question of fact and degree, to be determined by considering all the circumstances of the case.

Orders