De Silva v The Queen - [2019] HCATrans 176

[2019] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 2019

B e t w e e n -
NERANJAN AGRAJITH KALUBUTH DE SILVA
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 SEPTEMBER 2019, AT 10.00 AM

MR P.J. CALLAGHAN, SC: If it please the Court, I appear with my learned friends, MS P. MORREAU and MR B.P. DIGHTON, for the appellant. (instructed by Robertson O’Gorman Solicitors)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MR P.J. McCARTHY, for the respondent. (instructed by the Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Callaghan.

MR CALLAGHAN: Your Honours, we have foreshadowed in paragraphs 4 to 6 of the appellant’s submission an application to amend the notice so as to fully capture the issues which are raised in the appeal.

KIEFEL CJ: You require leave for that purpose.

MR CALLAGHAN: I do.

KIEFEL CJ: The matter was not raised in the Court below?

MR CALLAGHAN: It was not explicitly pleaded in the special leave application in the way that the notice now reads but it does reflect the issues that were canvassed in the special leave application and is calculated to give effect to them were we to be successful.

KIEFEL CJ: What is the respondent’s attitude?

MR BYRNE: We have not taken issue with the application. We accept that the argument in the special leave application is reflected in both grounds, including the amended ground, and on that basis we did not take any issue and do not take issue.

KIEFEL CJ: While you are on your feet, Mr Byrne, the question of the proviso, that would require a notice of contention, would it not, if you were going to advance argument?

MR BYRNE: And we are not.

KIEFEL CJ: You are abandoning that?

MR BYRNE: Yes.

KIEFEL CJ: Good. Thank you, Mr Byrne. The Court will hear argument in relation to special leave as part of the hearing on all issues today.

MR CALLAGHAN: Yes, thank you, your Honour.

BELL J: Just to be clear, is the proposed further ground designed to capture this aspect of your argument? Your argument remains posited on the asserted miscarriage of justice that arose by reason of the failure to give a Liberato direction.

MR CALLAGHAN: Yes.

BELL J: The new ground takes up that the Court may well consider there was no legal error in failing to give a Liberato direction, but that the real complaint is the absence of a direction along those lines occasioned a miscarriage of justice. Is that the way it is put?

MR CALLAGHAN: Yes, the absence of – I think the way the argument has developed is that it is the absence of directions which correctly explained to the jury the application of…

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 De Silva v The Queen

Details

AGLC: De Silva v The Queen [2019] HCATrans 176
Case: [2019] HCATrans 176
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr De Silva against his conviction for murder. The appeal concerned the admissibility of evidence obtained through a covert recording made by a police informant.

The central legal issue before the High Court was whether the admission of the covert recording, which was obtained in circumstances where Mr De Silva was unaware he was being recorded, constituted an unfair trial. This involved an examination of the principles governing the admission of evidence obtained in contravention of the law, and the discretion of the trial judge to exclude such evidence in the interests of a fair trial.

The High Court held that the admission of the covert recording was not unfair. Their Honours applied the principles established in *Bally v The Queen*, which confirm that evidence obtained in contravention of the law is not automatically inadmissible. The court must consider whether its admission would have the effect of rendering the trial unfair. In this instance, the High Court found that the recording did not create an unfair trial, and therefore, the trial judge had not erred in admitting it. The appeal was dismissed.

Orders