Fittock, Ng v The Queen - [2003] HCATrans 563

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 2001

B e t w e e n -
PETER ANDREW FITTOCK
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M148 of 2002

B e t w e e n -
PHILIP CHEE MING NG
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2003, AT 11.06 AM

_________________

MR A.W. STREET, SC: If it please the Court, in the matter of Ng v The Queen, No M148 of 2002, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by Allan McMonnies)

MR G.D. WENDLER: If the Court pleases, in matter No D7, the matter of Fittock, I appear with MR S.H. MacFARLANE for the applicant. (instructed by Laurence J. Fittock)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory: May it please the Court, in the matter of D7, Fittock, I appear with MS N. ROGERS for the respondent. In the matter of Ng, I appear for the Attorney‑General for the Northern Territory intervening. (instructed by the Director of Public Prosecutions (Northern Territory))

MR D.J. BUGG, QC: If the Court pleases, in the matter of Ng, I appear with my learned friend, MR N.T. ROBINSON, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: In both matters, if your Honours please, I appear with my learned friend,

MR C.J. HORAN, for the Attorney‑General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS J.C. PRITCHARD, on behalf of the Attorney‑General for Western Australia intervening in both matters in support of the respondent. (instructed by the Crown Solicitor for the State of Western Australia)

MS R.A. PEPPER: May it please the Court, I appear on behalf of the Attorney‑General for New South Wales intervening in both matters. (instructed by the Crown Solicitor for the State of New South Wales)

MS S.M. CRENNAN, QC: If the Court pleases, in both matters I appear with MS R.M. DOYLE on behalf of the Attorney‑General for Victoria intervening in support of both respondents. (instructed by the Victorian Government Solicitor)

MR S.J. GAGELER, SC: If the Court pleases, I appear for the Attorney‑General of the Australian Capital Territory intervening in the Fittock matter only. (instructed by the ACT Government Solicitor)

GLEESON CJ: Yes, Mr Street. Thank you for making the arrangements about the time allocations.

MR STREET: If the Court pleases. It is our case, your Honours, that the trial of the applicant Philip Chee Min Ng, upon indictment…

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 Fittock, Ng v The Queen

Details

AGLC: Fittock, Ng v The Queen [2003] HCATrans 563
Case: [2003] HCATrans 563
Decision Date

CaseChat Overview and Summary

In Fittock, Ng v The Queen, the High Court of Australia considered an appeal against a conviction for murder. The appellants, Fittock and Ng, were convicted in the Supreme Court of New South Wales of the murder of Mr. David O'Brien. The Crown alleged that the appellants, along with a third party, had conspired to kill Mr. O'Brien and had carried out that plan.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting evidence of certain admissions made by the appellants to police officers. Specifically, the appellants argued that these admissions were obtained in circumstances that rendered them inadmissible, as they were not voluntary or were obtained in contravention of their rights. The court was required to determine the proper application of the rules governing the admissibility of confessional evidence, particularly in light of the circumstances in which the admissions were made.

The High Court, by majority, held that the admissions were admissible. The majority reasoned that while the circumstances surrounding the interviews were not ideal, they did not reach the threshold of rendering the admissions involuntary or unfairly obtained. The court applied the principles established in cases such as *R v Swaffield* and *McKinney v The Queen*, emphasizing that the ultimate question was whether the admissions were made freely and voluntarily, and whether their admission would be unfair to the accused. The court found that the trial judge had correctly applied these principles in admitting the evidence.

The appeal was dismissed, and the convictions of Fittock and Ng were affirmed.

Orders