Ellis v The Queen - [2004] HCATrans 311

[2004] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S584 of 2003

B e t w e e n -
DARREN DOUGLAS ELLIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 AUGUST 2004, AT 3.55 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR H.K. DHANJI. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Odgers.

MR ODGERS: Your Honours, this application deals with the application of section 101(2) of the uniform evidence law. That can be found in the application book at page 101, where Chief Justice Spigelman extracted it. That is the provision which determines in criminal cases the admissibility of what is called tendency evidence and coincidence evidence adduced against an accused person. Until this judgment of the Court of Criminal Appeal, the weight of authority in New South Wales was that this statutory balancing test which your Honours can see in 101(2) was essentially the same test as developed under the common law in relation to what is called propensity evidence and similar fact evidence.

GUMMOW J: In what States is the common law still in force? I have looked at section 132A of the Evidence Act (Qld).

MR ODGERS: Your Honour, the uniform evidence legislation only applies in New South Wales, the ACT and Tasmania.

GUMMOW J: No, I asked about the common law. In what States is the common law in its pristine state still in force?

MR ODGERS: I am sure South Australia would be one, your Honour, and Western Australia, I believe.

GUMMOW J: There is legislation in Queensland.

MR ODGERS: I think there is legislation in Victoria but I think that is in relation to separate trials. It may not relate to the question ‑ ‑ ‑

GUMMOW J: Section 132A of the Evidence Act (Qld) says:

In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.

MR ODGERS: Your Honour, that would override the decision of this Court in Hoch. That is an interesting point. Can I just deal with that for a moment. The situation seems to be in New South Wales that in Ellis it was held that the legislation overrode Pfennig but Hoch is still good law in New South Wales, which is a curious ‑ ‑ ‑

GUMMOW J: So the answer to my question is it seems to me there is a patchwork throughout the…

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 Ellis v The Queen

Details

AGLC: Ellis v The Queen [2004] HCATrans 311
Case: [2004] HCATrans 311
Decision Date

CaseChat Overview and Summary

In *Ellis v The Queen*, the High Court of Australia considered an appeal by the applicant, Ellis, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in circumstances that arguably breached the applicant's rights, and whether the cumulative effect of certain directions and rulings by the trial judge had resulted in a miscarriage of justice. Specifically, the court examined the application of the exclusionary rule concerning improperly or illegally obtained evidence and the principles governing the exercise of judicial discretion to admit such evidence.

The High Court, in a joint judgment, affirmed the principles governing the admission of evidence obtained in contravention of legal rights. Their Honours reiterated that while such evidence may be excluded as a matter of discretion, the discretion is not unfettered. The court must weigh the probative value of the evidence against the unfairness to the accused that its admission might occasion, and also consider the public interest in the conviction of those guilty of criminal offences. In this instance, the court found that the trial judge had properly exercised their discretion in admitting the evidence, and that the directions given to the jury, when considered as a whole, were adequate.

Consequently, the High Court dismissed the appeal and affirmed the conviction.

Orders