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Flora v The Queen

Flora v The Queen

Case [2013] HCATrans 304 11 December 2013

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[2013] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M131 of 2013

B e t w e e n -
TIBERIJE FLORA
Applicant
and
THE QUEEN
Respondent
Bail application

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 11 DECEMBER 2013, AT 11.15 AM

MR B.F. KISSANE: May it please your Honour, I appear for the respondent. (instructed by Office of Public Prosecutions Victoria)

MS M. RADMILOVIC: I am asking for permission to appear for Mr Flora. (instructed by the applicant)

HER HONOUR: Yes, and you are Ms Radmilovic.

MS RADMILOVIC: Yes.

HER HONOUR: Yes, certainly. Ms Radmilovic, I realise that this is an application for bail and that you will be appearing on behalf of the applicant. I understand you are his fiancée and I have read the written material which has been provided by him to the Court. So if you would like to come forward and you may address me on any matters which you wish to put on his behalf. Come forward to the microphone.

MS RADMILOVIC: So I start now?

HER HONOUR: Yes.

MS RADMILOVIC: Okay. I read the response from the prosecution that I received yesterday and I would like to say something in regards to that. Then I would like to read Mr Flora or Tibby’s – if that is okay to call him – affidavit.

HER HONOUR: I have read his affidavit.

MS RADMILOVIC: You have, so I do not need to mention it.

HER HONOUR: No, you do not need to read it again.

MS RADMILOVIC: Okay. Then after the prosecution respond, I would like to say something as well.

HER HONOUR: Reply again.

MS RADMILOVIC: Reply, if that is okay.

HER HONOUR: Certainly, yes.

MS RADMILOVIC: Well, since I read the prosecution response yesterday, I have to say that I am really extremely disappointed that no one is interested in the truth and what happened on the day. All they are interested in is in the protocol and the proceedings. Sorry, I am a bit nervous.

HER HONOUR: That is okay.

MS RADMILOVIC: Also, the prosecution – their response clearly shows that they are aware of everything that happened about the misconduct and the misrepresentations from the trial counsellor and they are now trying to hide the entire evidence and the truth, what they have been trying to do pretty much from day one. We have evidence for everything, black and white evidence, what happened and they keep on tampering with it and changing the truth.

Okay, I will say in point 4 and 5 when they are saying that our grounds for appeal are not strong enough, and that is exactly the reason why we are asking for a bail application now, so that we can actually prove his innocence. I have been making so many attempts to get documents from courts and I have been refused. I keep on being told it is…

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 Flora v The Queen

Details

AGLC: Flora v The Queen [2013] HCATrans 304
Case: [2013] HCATrans 304
Decision Date

CaseChat Overview and Summary

Flora v The Queen concerned an appeal to the High Court of Australia by the applicant, Flora, against her conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently sentenced to imprisonment. The central dispute revolved around the admissibility of certain evidence during the trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the applicant, which she argued was obtained in contravention of her rights. Specifically, the legal issues concerned the application of the exclusionary rule in relation to evidence obtained in breach of statutory provisions and the proper approach to assessing whether such evidence should be admitted in the interests of justice.

Crennan J, in delivering the judgment, affirmed the principles governing the admission of evidence obtained in contravention of statutory provisions. His Honour reiterated that while such contravention does not automatically render evidence inadmissible, the court retains a discretion to exclude it if its admission would be unfair to the accused or otherwise contrary to the interests of justice. The assessment of fairness involves a balancing exercise, weighing the probative value of the evidence against its prejudicial effect and the circumstances of its acquisition. In this instance, the High Court found no error in the trial judge's exercise of discretion and dismissed the appeal.

Orders