Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court be allowed and that the appellant's conviction be quashed and a verdict of acquittal entered.
Decisions
MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ The appellant, Mr Stephen Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building ((1) Crimes Act 1900 (N.S.W.), s.199 (the section has since been replaced).). The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant's involvement in the fire. Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention.
2. At the commencement of the trial, the appellant challenged the voluntariness of the confessional statement. It was also submitted on his behalf that evidence of it should be excluded on the discretionary ground that it would be "unfair to the accused to use the material against him at his trial". These objections were dealt with by the trial judge on preliminary voir dire hearings and overruled. Evidence of the confessional statement was subsequently led at the trial and the appellant was convicted by the jury. An appeal by the appellant against his conviction was dismissed by the New South Wales Court of Criminal Appeal (Hope AJA, Hunt and Loveday JJ). The appellant now appeals to this Court from the judgment of the Court of Criminal Appeal. The only issue on the appeal is whether the Court of Criminal Appeal was mistaken in upholding the decision of the trial judge to allow evidence of the confessional statement to be placed before the jury. That issue falls to be resolved in the context provided by events leading up to the signing of the statement by the appellant.
3. The fire at the Narooma High School occurred in the early hours of the morning of 4 August 1987. At that time, the appellant, who is an Aborigine, was twenty-one years old. He lived with his mother and others in a house on land owned by an Aboriginal Co-operative at Wallaga Lake which is about a half-hour drive from Narooma. On 14 August 1987, at about 12.30 p.m., a party of five detectives and three uniformed police arrived at Wallaga Lake in three vehicles. One of the vehicles was a…
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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AGLC
Foster v The Queen [1993] HCA 80
Case
[1993] HCA 80
Decision Date
CaseChat Overview and Summary
In *Foster v The Queen*, the High Court of Australia considered an appeal against a conviction for conspiracy to import heroin. The appellant, Foster, was convicted alongside two co-accused, and the central issue on appeal concerned the admissibility of certain evidence.
The primary legal question before the High Court was whether the trial judge had erred in admitting evidence of conversations between the appellant and a police informant, which had been recorded without the appellant's knowledge or consent. This raised issues concerning the admissibility of illegally or improperly obtained evidence and the discretion of the trial judge to exclude such evidence in the interests of a fair trial.
The High Court, in a joint judgment, affirmed the principle that evidence obtained improperly or illegally is not automatically inadmissible. However, it held that a trial judge possesses a discretion to exclude such evidence if its admission would be unfair to the accused. In this instance, the Court found that the recording of the conversations, while improper, did not render the evidence unfair to the appellant. The jury was entitled to consider the evidence, and the trial judge had properly exercised their discretion in admitting it.
The appeal was therefore dismissed, and the conviction upheld.