Duke v The Queen - [1988] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Adelaide No A27 of 1985
B e t w e e n -
GRAHAM WILLIAM DUKE
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

WILSON J
BRENNAN J
DEANE J
DAWSON J
TOOHEY J

Duke
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON MONDAY, 22 AUGUST 1988, AT 3.30 PM
Copyright in the High Court of Australia

A1T7/1/SDL 1 22/8/88

MR D.H. PEEK: May it please the Court, I appear with my learned
riend, MR M.J. SYKES, for the applicant in
this matter. (instructed by Sykes Bidstrup)

MR P. RICE: If the Court pleases, I appear on behalf of
the respondent. (instructed by the Crown Solicitor
of South Australia)

WILSON J: Yes, Mr Peek.

MR PEEK: May it please the Court, I hand up copies of
the outline of our submissions.

WILSON J: Yes, Mr Peek.

MR PEEK: May it please the Court, I seek to tender an
affidavit of Mr Sykes which I understand has
been provided to the Court. This is as to the
delay in the matter, Your Honour.

WILSON J: That is dealing with the question of delay,
Mr Peek, yes. The Court would invite you to
continue with your submissions on the substance of the application, Mr Peek. We will deal with
this question of delay, if necessary, later.

MR PEEK: Yes, I did have some other matters on that but
I will come to that later.

WILSON J: It could have serious implications on a new
trial, for example.

MR PEEK: Yes, certainly I do have some comments to make
on that but I will defer them for the moment
as to that aspect, Your Honour. I certainly
do not intend to read any evidence but can I
just point to a general outline of the facts
against which the matter is to be tested just
to very briefly present the picture.

What happened was that between about 5

o'clock and 6 o'clock in the morning of 12 July,
five armed Queensland detectives entered an
apartment at the Horizon, an apartment building

at Burleigh Heads. Those gentlemen were from
two different squads: three were from the Broadbeach
Queensland CIB, they were Meskell, the officer- in-charge, Foreman and Frohmuller. Broadbeach
is at Gold Coast City, about 70 kilometers south
of Brisbane and, for reasons that will become
important later, it is the neighbouring CIB
district to Burleigh Heads, only 5 miles away.

AIT7/2/SDL 2 22/8/88
Duke
The Horizon apartment building was 6 kilometers
south of Broadbeach and about a five or six

minute drive. The second group of detectives,
two, Edwards and McMullen, were from the consorting
squad of Queensland based in Brisbane, and there
is only one consorting squad.
Edwards, from the consorting squad had

certain information and I will not trouble the
Court with that. He had looked through a number
of circulars in relation to armed robberies.
The police evidence, then, was that they all
went into the apartment and Edwards,…

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 Duke v The Queen

Details

AGLC: Duke v The Queen [1988] HCATrans 177
Case: [1988] HCATrans 177
Decision Date

CaseChat Overview and Summary

This matter concerns an application for special leave to appeal before the High Court of Australia, with Mr D.H. Peek and Mr M.J. Sykes appearing for the applicant, and Mr P. Rice representing the respondent. The dispute arises from an incident on 12 July where five Queensland detectives entered an apartment at Burleigh Heads. The applicant alleges he was woken by police, had a blanket ripped from him, and was confronted with a loaded revolver pointed at him, denying any admissions. The police evidence, however, states they entered the apartment, identified the applicant as Graham William Duke, who they believed was wanted for armed robbery, and that the applicant admitted to the robbery.

The primary legal issue before the Court was the admissibility of admissions made by the applicant. Specifically, the Court was required to consider whether the admissions, allegedly made after the applicant was identified and confronted by armed police, were voluntary and therefore admissible in evidence. This involved examining the circumstances of the police entry into the apartment and the subsequent interview process.

The Court's reasoning focused on the voluntariness of the admissions. The applicant's version of events, where he was woken, had a blanket removed, and was confronted with a loaded firearm, suggested a potential lack of voluntariness due to duress or fear. Conversely, the police evidence presented a scenario where the applicant identified himself and made admissions without any police officer drawing a weapon. The Court would have had to weigh these conflicting accounts to determine if the admissions were made freely and voluntarily, a prerequisite for their admission into evidence.

Orders