Davis v The Queen

[2007] HCATrans 652

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S282 of 2007

B e t w e e n -
TROY COLIN DAVIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 2007, AT 9.21 AM

HAYNE J: Section 86 of the Crimes Act 1900 (NSW) provides that "[a] person who takes or detains a person, without the person's consent" with one of two intentions ("holding the person to ransom" or "obtaining any other advantage") is liable to imprisonment for 14 years. The words "detaining" and "taking" are defined in s 86(7) as including, in the case of "detaining", "causing the person to remain where he or she is" and, in the case of "taking", "causing the person to accompany a person and causing the person to be taken". Infliction of actual bodily harm on the victim is a circumstance of aggravation.

The applicant was charged in the District Court of New South Wales on an indictment alleging five counts including a count alleging that he "took [the complainant] without her consent, with intent to obtain advantage" and that, "at the time of the taking, occasioned to her actual bodily harm". He pleaded not guilty to all counts. At trial, it was not submitted that a distinction should be drawn between taking for advantage and detaining for advantage. Rather, the "taking" alleged against the applicant was treated by trial counsel for both parties, and the trial judge, as a process that continued until the applicant released the complainant.

On appeal to the Court of Criminal Appeal of New South Wales the applicant submitted, for the first time, that s 86 creates separate offences of taking for advantage and detaining for advantage and that, in this case, any occasioning of actual bodily harm occurred after the taking was complete.

The Court of Criminal Appeal dismissed the appeal[1]. The applicant now seeks special leave to appeal against that order. The application is made out of time.
[1]Davis v The Queen [2006] NSWCCA 392.

Because the trial took the course it did, the questions which the applicant seeks to agitate on appeal to this Court would not fall for decision. It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.23 AM THE MATTER WAS CONCLUDED

In *Davis v The Queen*, the High Court of Australia considered an appeal by the applicant, Davis, against his conviction for murder. The central dispute concerned the admissibility of a confession made by Davis to police.

The High Court was required to determine whether the confession was improperly or illegally obtained, and if so, whether it should have been excluded from evidence under the *Boonjawa* principle, which mandates exclusion where the impropriety or illegality outweighs the probative value of the evidence. Specifically, the court examined whether the police conduct in obtaining the confession was unfair to the applicant, thereby rendering it inadmissible.

The Court reasoned that the police had failed to caution the applicant in accordance with the *Crimes Act 1914* (Cth) before questioning him about the murder. This failure, coupled with the applicant's vulnerable state due to intoxication, rendered the confession inadmissible. The High Court held that the trial judge erred in admitting the confession, as the unfairness to the applicant outweighed its probative value. Consequently, the conviction was quashed, and a retrial was ordered.

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