Fisher v The Queen - [1988] HCATrans 279

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Brisbane No B37 of 1986
B e t w e e n -
DUANE EDWIN FISHER
Applicant

and
THE QUEEN
Respondent

Application for special leave
to appeal

WILSON J

Fisher
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 18 NOVEMBER 1988, AT ll. 22 AM
(Continued from 22/3/88)
Copyright in the High Court of Australia

C2T 27 / 1 /SDL 55 18/11/88

WILSON J: We have the appearances. Have they changed?

MR N.M. COOKE, QC: Your Honour, there is a change on my side.
Mr Long is occupied elsewhere and he is replaced
by MRS M. McMlJ'RDO; today

WILSON·J: Yes, thank you.
MR COOKE: Your Honour, since we were here last, the petition
which was lodged with the Governor in Council
was rejected. It has not been sent to the Court
of Criminal Appeal for review and we would ask
the Court, therefore, to deal with the application
for special leave on the basis of the material
in front of the Court of Criminal Appeal, excluding
the affidavit material which we have filed dealing
with fresh evidence.
Short of attempting to persuade the Court

to depart from the established decisions in CODY
and the earlier one of THE VICTORIAN STEVEDORING
V DIGNAN, where the Full Court examined the
constitutional power, or the constitutional nature
of the appeal which this Court has and the consistent
line of cases since then which have said that
an appeal from a State court is an appeal in
the strict sense and no fresh evidence or new
evidence. is considered by the Court. Short
of persuading the Court to overturn that line
of authorities which, I think, is not appropriate
at the moment, we would have - - -

TOOHEY J: Mr Cooke, is there a document that evidences

the decision not to refer the matter to the Court
of Criminal Appeal?

MR COOKE: No, Your Honour. We have not got a document.
I think we have just been informed, unless
my learned friend, Mr Nase, has some document.
We were just informed that it was not going to

be referred. But that was some time ago.

WILSON J: That rather concludes your submission, does
i~, Mr Cooke?

MR COOKE: Yes, Your Honour. We would submit that we
have to deal with it on the basis of the submissions

that we have made. Your Honour, could I just
before I leave it, refer the Court to what was
said by the Court in CARR V REG and try to draw
some analogy from that.

C2T27/2/SDL 56 18/11/88
Fisher

WILSON J: From CARR's case?
MR COOKE:

Yes, CARR's case. Your Honour, I have copies - it

is reported in 81 ALR 236. Your Honours might recall
this was an appeal from Tasmania. There was a
question of a police confession which was typed but
not signed, but the important part, from our point
of…

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 Fisher v The Queen

Details

AGLC: Fisher v The Queen [1988] HCATrans 279
Case: [1988] HCATrans 279
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, Fisher, against the Queen. The dispute arose from a criminal conviction, and the application was heard by Justices Wilson, Toohey, and Deane.

The primary legal issue before the High Court was whether the Court should grant special leave to appeal, particularly in light of established High Court precedent that appeals from State courts are generally confined to the evidence presented at trial, without the admission of fresh or new evidence. The applicant sought to rely on evidence that had not been before the Court of Criminal Appeal, arguing it raised a reasonable doubt as to his guilt.

The applicant's counsel, Mr. Cooke QC, acknowledged the established line of authority, including *Cody* and *The Victorian Stevedoring v Dignan*, which held that appeals to the High Court from State courts are appeals in the strict sense and do not permit the consideration of fresh evidence. He indicated he would not seek to overturn this precedent. Instead, he attempted to draw an analogy with the case of *Carr v Reg*, suggesting that the principles applied in *Carr* regarding the appellate court's responsibility to evaluate evidence when a verdict is attacked as unsafe and unsatisfactory could be relevant. Specifically, he referred to passages from the joint judgment of Wilson and Dawson JJ in *Carr*, which stated that appellate courts have a responsibility to evaluate relevant evidence to determine if a reasonable doubt ought to have been left with the jury. He also referred to Justice Gaudron's reasoning in *Carr* concerning evidence sufficient to raise a doubt.

The application for special leave was ultimately dealt with on the basis of the material that had been before the Court of Criminal Appeal, excluding the additional affidavit material filed by the applicant. The transcript does not record the final orders or outcome of the special leave application.

Orders