Dyers v The Queen (2002) 192 ALR 181
Jones v Dunkel (1959) 101 CLR 298
Palling v Corfield (1970) 123 CLR 52
Ratten v The Queen [1972] AC 378
Tripodi v The Queen (1961) 104 CLR 1

Case(s) also cited:

Browne v Dunn (1893) 6 R 67
Cameron v The Queen (2002) 187 ALR 65
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
Dyers v The Queen (2002) 76 ALJR 1552
Fencott v Muller (1983) 152 CLR 570
Hoy & Ors v The Queen [2002] WASCA 275
Huddart Parker & Co Pty Ltd v Appleton & Moorhead (1909) 8 CLR 330
Jones v Dunkel (1959) 101 CLR 298
Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51
Leeth v Commonwealth of Australia (1992) 174 CLR 455
Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1
Liyanage v The Queen [1967] 1 AC 259
Nicholas v The Queen (1998) 193 CLR 173
Pinkstone v The Queen [2003] WASCA 66
Punevski v The Queen [2000] WASCA 71
R v Bedingfield (1879) 14 Cox CC 341
R v Darby (1982) 148 CLR 668
R v FerrerEsis (1991) 55 A Crim R 231
RPS v The Queen (2000) 199 CLR 620
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Walton v The Queen (1989) 166 CLR 283
Wynbyne v Marshall (1997) 7 NTLR 97

MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Wheeler J. I agree entirely with her Honour that the appeal against conviction should be allowed on the basis of ground (i).
I agree also that it would be inappropriate to apply the proviso so as to preserve the conviction on the ground of the inevitability of conviction having regard to the evidence remaining after that the subject of ground (i) is excluded. The Crown case was, it seems to me, very strong, but nonetheless…

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 Fonseka v The Queen

Details

AGLC: Fonseka v The Queen [2003] WASCA 111
Case: [2003] WASCA 111
Decision Date: 28 MAY 2003

CaseChat Overview and Summary

The case of Fonseka v The Queen involved the appellant, Fonseka, who was charged with people smuggling offences. The case was heard and determined in the High Court of Australia. The central dispute was whether the evidence presented against Fonseka was admissible under the exceptions to the hearsay rule and the co-conspirators rule. The evidence in question included statements made by co-conspirators, which were alleged to be part of the res gestae of the crime, and were claimed to be admissible under the co-conspirators rule.

The primary legal issue before the court was whether the hearsay evidence provided by co-conspirators was admissible. The court had to determine whether these statements were spontaneous exclamations or part of the ongoing act, which would make them admissible under the res gestae exception. Additionally, the court needed to assess whether these statements fell within the scope of the co-conspirators rule, which allows for the admission of statements made by co-conspirators during the course of the conspiracy and in furtherance of it.

The court found that the statements made by the co-conspirators were not admissible under the res gestae exception. The court reasoned that these statements were not spontaneous exclamations but rather deliberate communications made after the events had concluded. Furthermore, the court held that the co-conspirators rule did not apply because the statements were not made during the course of the conspiracy but rather after it had ended. As a result, the court determined that the evidence was inadmissible and could not support the conviction. Consequently, the court quashed the conviction and ordered a retrial.

In summary, the High Court held that the hearsay evidence provided by co-conspirators was inadmissible under the exceptions to the hearsay rule and the co-conspirators rule. The statements were not spontaneous exclamations nor made during the course of the conspiracy. The conviction was quashed, and a retrial was ordered.

Orders