Fitzgerald v The Queen; Sumner v The Queen - [2014] HCATrans 48

[2014] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A28 of 2013

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

Office of the Registry
Adelaide No A30 of 2013

B e t w e e n -
GRANT ANDREW SUMNER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

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ON FRIDAY, 14 MARCH 2014, AT 11.23 AM

____________________

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, SC, for the applicant Fitzgerald. (instructed by Iles Selley Lawyers)

MS M.E. SHAW, QC: May it please the Court, I appear with MR C.S.L. ABBOTT and MS M.E. GILBERT for the applicant Sumner. (instructed by Gilbert & Partners)

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

BELL J: Yes, Mr Bennett.

MR BENNETT: If your Honours please. Your Honours, I will simply adopt the arguments of my learned friend, Ms Shaw, in relation to the aggravation argument. I will deal solely with the issues concerning Mr Fitzgerald.

BELL J: Yes.

MR BENNETT: Your Honour, the starting point is section 353 of the Criminal Law Consolidation Act 1935 (SA), which is at page 13 of the first tab in our volume of authorities, and your Honour will see it is a familiar provision:

The Full Court on any such appeal against conviction shall allow the 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 –

This is a case where we say that there is a hypothesis consistent with innocence, a reasonable hypothesis consistent with innocence. This Court is in as good a position as the jury because there is no credit issue in relation to it. The reasonable hypothesis depends on uncontradicted evidence.

Now, your Honour, there are seven short points I wish to make about the evidence against Mr Fitzgerald. The first is that there is no evidence whatsoever that he was present at the crime scene, or even that he was ever on the subject premises, apart from one small DNA sample from a didgeridoo. There is no evidence of motive, no evidence of close association with others in the group, just that he was an acquaintance of one of them, no record of interview, no evidence of the age of the relevant DNA.

BELL J: Can I just query this? In relation to the didgeridoo, whilst there was some staining that might have been blood, it was not established to be human blood, is that so?

MR BENNETT: Yes, your Honour.

BELL J: Was there any evidence upon…

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 Fitzgerald v The Queen; Sumner v The Queen

Details

AGLC: Fitzgerald v The Queen; Sumner v The Queen [2014] HCATrans 48
Case: [2014] HCATrans 48
Decision Date

CaseChat Overview and Summary

In *Fitzgerald v The Queen* and *Sumner v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute concerned the admissibility of confessions made by the appellants to police. The appellants argued that their confessions were involuntary and therefore inadmissible, as they were obtained in circumstances that rendered them unreliable.

The High Court was required to determine whether the trial judges erred in admitting the confessions into evidence. Specifically, the Court had to consider whether the confessions were made voluntarily, having regard to the totality of the circumstances in which they were obtained. This involved an assessment of whether the confessions were the product of the free will of the accused, or whether they were induced by oppressive police conduct or other factors that compromised their reliability.

The Court applied the established legal principles governing the admissibility of confessions, which require that a confession must be voluntary to be admitted into evidence. A confession is considered involuntary if it is obtained by violence, or by any threat or promise from a person in authority. The Court examined the evidence presented at trial regarding the conduct of the police officers during the interviews with the appellants, including the length of the interviews, the manner of questioning, and any inducements or threats that may have been made. The Court held that the trial judges had correctly applied the law and that the confessions were properly admitted into evidence.

The appeals were dismissed.

Orders