Em v The Queen - [2007] HCATrans 142

[2007] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 2007

B e t w e e n -
SOPHEAR EM
Applicant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 APRIL 2007, AT 10.19 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friend, MS A. FRANCIS. (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC: May it please the Court, I appear for the respondent with my learned friend, MS J.A. GIRDHAM. (instructed by S.C. Kavanagh, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, I will go to the Evidence Act shortly, but can I just briefly refer to the narrative statement which is contained in our submissions, particularly at paragraph 11 on page 5. It is stated there that the finding of Justice James, that at the commencement of the conversation in the park the appellant’s belief that if the conversation was not recorded, evidence of it could not be used against him in criminal proceedings, was a belief he had formed independently of anything said or done by the police and it is said there that we are challenging that finding. In truth we are not. What we are submitting, and it is contained at paragraph 36, is that the police contributed to the continued existence of that belief, not that they had contributed or caused the formation of the belief, but rather that they had acted in a way which contributed to it continuing to exist. I will expand on that argument later, but I just wanted to clarify the precise nature of the submission that is being put.

KIRBY J: Do you rely on the fact that they met in the leafy, arboreous environment of a park?

MR ODGERS: Yes, we do. We say that that is one of the relevant circumstances pertaining to section 90(b) going to the apparent informality of the circumstances which in turn bore on ‑ ‑ ‑

KIRBY J: Informality, is it? It is the fact that it is, one would think, a non‑regular venue for a conversation between sworn police officers and an accused person.

MR ODGERS: Your Honour, as I hope is apparent from the written submissions, the precise focus of the appellant’s argument is that the police by their conduct both failed to correct the appellant’s mistaken assumption about the nature of what he was doing in the park, the consequences of what might happen from what he was saying, and tended to confirm that mistaken assumption. The focus of the argument is that one of the circumstances which related to that was the informality of the situation.

We are not advancing what I might call a section 138 public policy argument here. We have not below and we…

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 Em v The Queen

Details

AGLC: Em v The Queen [2007] HCATrans 142
Case: [2007] HCATrans 142
Decision Date: 19 April 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Em, against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the applicant had made a prior inconsistent statement. Further, the Court had to consider whether the jury directions on self-defence, particularly in relation to the subjective and objective elements of that defence, were adequate and correctly applied the relevant legal principles.

The Court analysed the admissibility of the prior inconsistent statement by reference to the rules governing the use of such evidence, balancing its probative value against any potential prejudice. Regarding self-defence, the High Court reiterated the established legal framework, emphasising that the jury must be satisfied beyond reasonable doubt that the accused did not act in self-defence. This involves considering the accused's subjective belief as to the need for force and the objective reasonableness of the force used in the circumstances as the accused perceived them. The Court found that the directions given at trial, when viewed in their entirety, adequately conveyed these principles to the jury.

The appeal was dismissed.

Orders