Fitzgerald v The Queen - [2014] HCATrans 127

[2014] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A9 of 2014

B e t w e e n -
DANIEL GLENN FITZGERALD
Appellant
and
THE QUEEN
Respondent

HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 JUNE 2014, AT 10.06 AM

MR D.M.J. BENNETT, QC: May it please the Court, I appear for the appellant with my learned friends, MR A.L. TOKLEY, SC and MR S.A. McDONALD. (instructed by Iles Selley Lawyers)

MR J.P. PEARCE, QC: May it please the Court, I appear for the respondent on the instructions of the South Australian Director of Public Prosecutions, and I appear with my learned junior, MR T.J. ELLISON. (instructed by Director of Public Prosecutions (SA))

HAYNE J: Yes, Mr Bennett.

MR BENNETT: If your Honours please. Your Honours, section 353 of the Criminal Law Consolidation Act 1935 (SA) provides that the Full Court should allow a criminal appeal:

if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence –

We submit that in this case, both elements are satisfied; it is unreasonable and cannot be supported on the evidence.

It is an essential link in the Crown’s case against the appellant that he was present during the attack and there transferred his DNA to the didgeridoo. It follows from Shepherd v The Queen, which I will not take your Honours to unless your Honours wish me to, that that fact must be proved beyond reasonable doubt. The only evidence tending to establish it is the presence of the appellant’s DNA in one small sample on the didgeridoo.

The evidence fails to establish how the DNA got to the didgeridoo. There is no evidence about the history of the didgeridoo’s movements, nor – except by one fairly weak inference, which I will come to ‑ as to whether the appellant had been to the house or otherwise come into contact with it. In addition, on the Crown case itself, its own expert evidence led in‑chief, there was a reasonable hypothesis consistent with innocence.

That hypothesis was that after the appellant shook hands with Sumner and other persons at the gym, the reference to the handshakes; I will not take your Honours to it but it is appeal book 2, page 600, and pages 641 to 641 – it was not at the gym, I am sorry, it was at a boxing match at a football club – and the evidence is that the appellant shook hands with Sumner, Sumner shook hands with a number of other people – handshaking seems to have been a fairly regular activity there. The hypothesis is ‑ ‑ ‑

HAYNE J: Go on.

MR BENNETT: Sorry. The hypothesis is that after that Sumner touched the didgeridoo, probably on his first…

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 Fitzgerald 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: [2014] HCATrans 127
Decision Date

CaseChat Overview and Summary

The case of *Fitzgerald v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Fitzgerald, had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently sentenced to life imprisonment. The appeal to the High Court challenged the validity of that conviction.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting evidence of a confession made by the appellant. Specifically, the court had to determine if the confession was voluntary, and if not, whether its admission nonetheless caused a miscarriage of justice. This involved an examination of the circumstances surrounding the confession and the application of the principles governing the admissibility of confessional evidence in criminal proceedings.

The High Court considered the common law rules regarding the admissibility of confessions, which require that such statements be voluntary. A confession is considered involuntary if it is obtained by means of an untrue representation or by violence or oppression, or by any other improper influence. The court analysed the evidence presented at trial concerning the conduct of police officers during the appellant's interrogation. It was held that the trial judge had made an error in admitting the confession, as it was obtained in circumstances that rendered it involuntary. This error was found to be substantial and to have occasioned a miscarriage of justice.

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

Orders