Evans v The Queen - [2007] HCATrans 368

[2007] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S219 of 2007

B e t w e e n -
GRAHAM JOHN EVANS
Appellant
and
THE QUEEN
Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 11.58 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned friend, MS G.A. BASHIR. (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, MR M.M. HOBART. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Game.

MR GAME: If the Court pleases, I will come in due course to the questions arising concerning the demonstration that occurred in court involving the appellant, but first, I would like to take your Honours to an issue relating to the alibi evidence.

May I say this, your Honours, the Court of Criminal Appeal upheld the complaint that error was disclosed in relation to the wrongful refusal to allow the appellant to call evidence of alibi and in section 5 of the Criminal Appeal Act, that is an error of law. If your Honours look at our grounds of appeal you will see that we have a ground on page 892 which is to the effect that the Court of Criminal Appeal erred in applying the proviso having regard to the material relating to both the glasses and the alibi.

A time may come in the course of my submissions later when I put to the Court that we have established further error, that is to say in relation to both the comments made by witnesses, the demonstration and the failure of the judge to warn on significant aspects of this case, but we seek to make the case that the trial miscarried by reason of the inability of the defence to call evidence of alibi and that the proviso would not be applied in those circumstances. I wanted to take your Honours to this matter first because it does provide part of the context within which the issues relating to the demonstration occurred.

In the Court of Criminal Appeal one sees at page 885 the reason why, as it were, the proviso is exercised in relation to the alibi. We see in paragraph 287 that “The evidence the appellant himself gave in support of the alibi was not withdrawn from the jury”. That is actually not correct – it was withdrawn from the jury and I will take your Honours to that in due course. It was actually banished from consideration.

KIRBY J: The respondent in this Court makes the point though that the evidence did get before the jury relevant to the alibi. I know we work on the hypothesis that if they are told not to have regard…

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 Evans v The Queen

Details

AGLC: Evans v The Queen [2007] HCATrans 368
Case: [2007] HCATrans 368
Decision Date: 1 August 2007

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Evans against the Crown. The dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant. Evans had been convicted of drug trafficking offences, and the admissibility of this recording was a key issue at his trial.

The central legal question before the High Court was whether the recording, made in circumstances where the informant was acting under police direction and without the consent of Evans, was unlawfully obtained and therefore inadmissible under the common law. The Court also had to consider the application of the *Uniform Evidence Law* provisions relating to improperly or illegally obtained evidence.

The Court's reasoning focused on the distinction between evidence that is "improperly obtained" and evidence that is "illegally obtained." It was held that while the recording may have been obtained in circumstances that were not ideal, it did not necessarily render the evidence "illegally obtained" in a manner that would mandate its exclusion under the common law or the Uniform Evidence Law. The Court applied principles of evidence law, considering the probative value of the evidence against any potential prejudice to the accused. The Court ultimately found that the recording was admissible.

Orders