Drummond v The Queen - [2013] HCATrans 76

[2013] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A23 of 2012

B e t w e e n -
ADRIAN SHANE DRUMMOND
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 APRIL 2013, AT 10.51 AM

MR K.V.BORICK, QC: If the Court pleases, I appear with MR P.D. KEYZER for the applicant. (instructed by C B McDonough & Co)

MR I.D. PRESS: I appear with MS S.S. BOREK for the respondent. (instructed by Director of Public Prosecutions (SA))

HAYNE J: Yes, Mr Borick.

MR BORICK: Your Honour, unlike the – I have listened to the case of Newton where the court apparently made reference to the principle expressed or the proper test expressed in M - in this case the court made no reference to M whatsoever. It made no reference to Bellchambers – no reference to SKA, I am sorry, and it made no reference to the question that it had to ask itself when dealing with the ground of appeal that the verdict was unsafe and unsatisfactory.

In coming to their conclusion, the Court of Criminal Appeal made no attempt to make an independent assessment of the whole of the evidence. What they did was to say that because the defence did not put to the girl – the complainant – that she had not been attacked at all that that in effect was the key point in it and established the case for the prosecution, and added to that, that she put the registration number of the car into her telephone before anything happened and the court never made that clear. She said she put it in the phone because she thought she was going to be murdered and under cross‑examination she said “I know that sounds stupid” but the court never considered that when it came to its conclusion that the verdict of guilty was correct and clearly correct.

HAYNE J: Does the applicant have these difficulties, Mr Borick? The complainant recorded his registration number. He accepted that he – that is the applicant accepted that he was in the area at the time of the alleged offence when the police inspected his motor car, what, on the same day as the alleged offence, I think?

MR BORICK: Yes, within a matter of hours.

HAYNE J: Yes. The passenger seat of the vehicle was in the unusual position which the complainant described.

MR BORICK: Yes, that is so, but the case for the defence was that he never stopped at all. This is a busy main road in Adelaide - a narrow main - that is not wide, six U‑turns. The important point to make to your Honours is that not one witness, including T, said she saw any of those U‑turns. So that when the court assumed that all…

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: [2013] HCATrans 76
Decision Date

CaseChat Overview and Summary

In *Drummond v The Queen*, the High Court of Australia considered an appeal by the applicant, Drummond, against his conviction for murder. The case concerned the admissibility of evidence obtained through an alleged breach of the applicant's rights.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence that was obtained in circumstances where the applicant's rights, specifically his right to communicate with a lawyer, may have been infringed. This raised questions about the proper application of the exclusionary rule in Australian criminal law, which permits the exclusion of improperly or illegally obtained evidence if its admission would be unfair to the accused.

The High Court analysed the circumstances surrounding the obtaining of the evidence, paying close attention to the timing of the applicant's request to speak with a lawyer and the actions of the police. Their Honours applied the principles established in cases such as *Bunning v Cross* and *Ridgeway v The Queen*, considering the competing interests of the need for effective law enforcement and the protection of individual rights. The Court ultimately determined that the evidence was improperly obtained and that its admission at trial would have been unfair to the applicant, leading to a miscarriage of justice.

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

Orders