Finlay v The Queen - [2009] HCATrans 17

[2009] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B66 of 2007

B e t w e e n -
RODNEY STANISLAUS FINLAY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 FEBRUARY 2009, AT 10.34 AM

MR T.F. CARMODY, SC: I appear with my learned friend, MR S. DI CARLO, for the applicant. (instructed by O’Sullivans Law Firm)

MR M.R. BYRNE: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Carmody.

MR CARMODY: This application, we say, raises an important point of principle and it arises out of legal error in the Court of Appeal when they rejected an argument that a Domican‑type direction was needed in this trial to ensure that the verdict was safe and that no miscarriage of justice was likely to be involved. The point of principle is as yet unresolved by decision of this Court and a decision is needed to ensure that the proper administration of criminal justice occurs in future cases.

The factual context appears at pages 133 and 135 of the application book. The statement of principle from Domican appears at application book 115, paragraph 1, and if I can just take your Honours to that briefly. It is a familiar statement of the High Court in Domican, that:

Whatever the defence and however the case is conducted, where evidence as to identification –

and we make the point there that that is deliberate; it is evidence “as to” identification, not evidence “of” identification:

represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.

Reliability was disputed here. There was evidence as to identification and that evidence represented a significant part of the Crown proof ‑ ‑ ‑

HAYNE J: You say there was evidence as to identification. There were certainly descriptions given by eyewitnesses of what they recalled about a person they saw in the vicinity of the crime. Did any witness ever say “The man I saw is the accused”?

MR CARMODY: No. They did not specifically say that, but that is not the only definition of identification evidence. The prosecution here had to prove two things. They had to prove, firstly, that the applicant was one of the would‑be burglars and then, in order to convict him of the shooting, they had to go on to say which one he was. On the evidence here, that could not safely be done and it could not be done without relying on the identification by description of the witnesses, none of whom really agreed with each other in their descriptions.

The fact that the jury relied on 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.

Keep reading for free

Create a free CaseChat account to read Finlay v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] HCATrans 17
Decision Date

CaseChat Overview and Summary

In *Finlay v The Queen*, the High Court of Australia considered an appeal from a judgment of the Court of Criminal Appeal of Queensland. The appellant, Finlay, had been convicted of a number of offences, including the murder of his wife, and sentenced to life imprisonment. The central dispute on appeal concerned the admissibility of certain evidence obtained from the appellant's mobile phone.

The High Court was required to determine whether the evidence obtained from the appellant's mobile phone was admissible, notwithstanding that the search of the phone was conducted without a warrant. Specifically, the Court had to consider the application of s 138 of the *Evidence Act 1977* (Qld), which governs the exclusion of improperly or illegally obtained evidence, and the principles of proportionality and necessity in relation to such searches.

The Court reasoned that the admission of evidence obtained in contravention of the law is a matter for the discretion of the trial judge, who must weigh the probative value of the evidence against the impropriety of its obtaining. In this instance, the Court found that the search of the mobile phone, while conducted without a warrant, was not unlawful in a manner that necessitated its exclusion. The judges applied the principles that the admission of improperly obtained evidence should not be permitted if it would be unfair to the accused, and that the court must consider the importance of the evidence and the extent of the impropriety. The Court ultimately held that the evidence was admissible.

Orders