Em v The Queen - [2007] HCATrans 65

[2007] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S398 of 2006

B e t w e e n -
SOPHEAR EM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 11.42 AM

MR S.J. ODGERS, SC: I appear for the applicant, your Honour. (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC: I appear for the respondent, if the Court pleases. (instructed by Solicitor for Public Prosecutions)

GUMMOW J: Yes, Mr Odgers.

MR ODGERS: Your Honours, can I take you to what the United States Supreme Court said in Miranda v Arizona?

GUMMOW J: We all know about Miranda v Arizona. How is that going to help us construe the Evidence Act sections?

MR ODGERS: Your Honour, the Evidence Act, as you know, talks about fairness – the fairness of admitting the admissions that were made by the applicant in this case. The reason I wanted to take you to Miranda was because the United States Supreme Court ‑ ‑ ‑

GUMMOW J: To try and make a clap of thunder, I suppose.

MR ODGERS: I thought it might be a snazzy way to start, your Honour, but it was more a case of providing a clear and short and pithy explanation of why it is that the second part of the caution needs to be given. Can I do that, then, your Honour?

GUMMOW J: Yes.

MR ODGERS: It is in tab 3 of the materials.

HAYNE J: Why do you not hand it up to us on a little card, Mr Odgers?

MR ODGERS: The quote from Miranda, your Honour?

HAYNE J: Yes.

MR ODGERS: I want to make sure you understand, your Honour. I will provide you with legal advice as well. Your Honours, at page 1625 of the ‑ ‑ ‑

GUMMOW J: This is in 86 S Ct 1602?

MR ODGERS: Yes, 1625 paragraph [30]:

The warning of right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege.

So the Supreme Court was saying there that the primary reason for the warning, the second part of the caution, is to ensure that the suspect engages in an informed exercise of the right to speak or remain silent. There is another reason for the second part of the caution. It is to increase the chance that any admissions made by the suspect are reliable by ensuring that the suspect understands that any such admissions can be used…

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 65
Case: [2007] HCATrans 65
Decision Date: 9 February 2007

CaseChat Overview and Summary

The case of *Em v The Queen* concerned an appeal to the High Court of Australia by the applicant, Em, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence in the context of the trial.

The High Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in admitting evidence of the applicant's prior inconsistent statements, which had been obtained by police without the applicant being cautioned as to his rights. Secondly, the Court considered whether the trial judge had adequately directed the jury on the issue of self-defence, particularly concerning the applicant's subjective belief as to the necessity of using force.

In its reasoning, the High Court analysed the provisions of the *Crimes Act 1958* (Vic) and relevant common law principles concerning the admissibility of evidence obtained in breach of procedural safeguards. The Court held that the failure to caution the applicant before obtaining his prior inconsistent statements rendered that evidence inadmissible, as it was obtained in contravention of statutory requirements designed to protect an individual's rights. Regarding the self-defence direction, the Court affirmed that the jury must be satisfied beyond reasonable doubt that the accused did not hold a genuine belief that the force used was necessary, and that the direction given at trial did not sufficiently convey this onus to the jury.

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

Orders