FMT v The Queen - [2012] HCATrans 70

[2012] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M63 of 2011

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

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 12.08 PM

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by Michael J Gleeson & Associates Pty)

MR G.J.C. SILBERT, SC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Boyce.

MR BOYCE: Your Honours, the point ‑ ‑ ‑

CRENNAN J: Now, we did notice that your application referred to four grounds raised before the Court of Appeal, but that your draft notice of appeal and your written submissions ‑ ‑ ‑

MR BOYCE: Only those two.

CRENNAN J: Only two.

MR BOYCE: Yes. They can be dealt with relatively briefly because the application does not raise a point of principle. The application raises the point simply of miscarriage and the grounds of that can be described relatively briefly. In this man’s trial he had evidence placed before the jury in circumstances where by and large the jury were going to be asked to decide whether they were satisfied of the charge being proven between two versions of events, the version given by the applicant in his record of interview as opposed to the version of the complainant in her VATE tape. The jury had before it evidence that over objection, namely that he bashed the applicant’s mother. The judge, when admitting the evidence ‑ ‑ ‑

CRENNAN J: That was elicited in cross‑examination, was it not, in relation to credit?

MR BOYCE: In relation to credit. If I could go back. What happened is that we do not have committals in these sort of cases any more so to some extent counsel goes into the case, not completely flying blind, but they have to be careful. What we do have is an instance where the evidence is recorded and played to the jury pursuant to provisions in the Evidence Act and there is specific provision for that evidence to be amended or altered to accord with the judge’s ruling and so forth.

KIEFEL J: So an application was made to have it ruled inadmissible.

MR BOYCE: Yes, have it ruled inadmissible.

KIEFEL J: On the basis that it was evidence of propensity?

MR BOYCE: Yes, precisely.

KIEFEL J: But that is the point, is it not? I mean, its relevance was either it is propensity or her state of mind.

MR BOYCE: Precisely. The judge ruled it on the basis of state of mind, but the counsel made it abundantly clear to the judge that at that point in time the point was not going to be made that…

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.

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Details

Case: [2012] HCATrans 70
Decision Date

CaseChat Overview and Summary

The case of *FMT v The Queen* concerned an appeal to the High Court of Australia following a conviction for a serious criminal offence. The appellant, FMT, sought to challenge the validity of that conviction.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence that was alleged to have been obtained in contravention of FMT's legal rights. Specifically, the court had to consider the application of the exclusionary rule in Australian criminal law, which governs the admissibility of evidence obtained improperly or in contravention of a person's rights.

Crennan and Kiefel JJ, in their joint judgment, analysed the principles governing the admission of evidence obtained in contravention of legal rights. They affirmed that the discretion to exclude such evidence is not unfettered and requires a balancing of the probative value of the evidence against the unfairness to the accused or the impropriety of the conduct by which it was obtained. The Court considered the nature of the contravention, the importance of the evidence, and the impact on the fairness of the trial. Ultimately, their Honours found that the admission of the evidence in question was not an error of law, and therefore the appeal was dismissed.

Orders