Foster v The Queen - [1992] HCATrans 348

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0l of 1992
B e t w e e n -
STEPHEN EDWARD FOSTER

Appellant

and
THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J

Foster(2)

2/12/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 DECEMBER 1992, AT 11.35 AM

MR G.R. JAMES, QC:

May it please the Court in that matter I

appear for the appellant with my learned friend,

MR S.J. ODGERS. (instructed by Craddock Murray &
Neumann)

MR K. MASON, QC, Solicitor-General for the State of New

South Wales: I appear for the respondent with my
learned friend, MR G. D. BARR, QC, who, as from
yesterday, became one of Her Majesty's counsel.
(instructed by R.O. Blanch, QC, Director of Public
Prosecutions (New South Wales)

MASON CJ: Yes, Mr Solicitor. Mr James.

MR JAMES:

May it please the Court. In the present appeal

there have been extensive written submission filed

on behalf of the appellant. They contain some
errors to which I should take the Court, and there
are certain minor additional mattern to which I
should take the Court.
The first of those errors is a purely typing

error at page 12, paragraph 21, line 2, the third
word should be 'Magna'

MASON CJ: Are the other alterations as important as that?

MR JAMES:

Only in one sense, Your Honour, that at page 40,

paragraph 77, what is expressed by reason of the
use of the inverted commas is the text of the
document, the material in inverted commas is not
the text of the document, it is the expression of
its effect in 38 and 39 in the statute.

MASON CJ:

Mr James, before you leave that written

submission, I should say I find the style of it
unacceptable. It refers to judges by surname, it
refers to an approach just using the judges surname

particular judge expTessed a view or came to a and it makes remarks like "It is surprising that" a

particular decision. Now, that is not acceptable
in terms of submissions that are lodged in the
Court.

MR JAMES:

I accept what Your Honour says.

MASON CJ: It may be acceptable for an academic article, and
I express no view about that, but it is not acceptable here.

MR JAMES: We accept what Your Honour says. Your Honour,
leaving aside the style of the submission, as to
its content, what we had sought to do by the
submission is to furnish to the Court the maximum
assistance we could in relation to the concepts of
voluntariness, the fairness discretion and the

Foster(2) 2 2/12/92
public policy discretion, not only as they were
employed in the present case, but as to how they
have been employed and reviewed both in Australia,
in the United Kingdom and in the United States.
In that sense, what we have sought to do is to

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 Foster v The Queen

Details

AGLC: Foster v The Queen [1992] HCATrans 348
Case: [1992] HCATrans 348
Decision Date

CaseChat Overview and Summary

The case of *Foster v The Queen* brought before the High Court of Australia an appeal by Stephen Edward Foster against the respondent, the Queen. The dispute concerned the admissibility of confessional material obtained from the appellant.

The High Court was required to determine, among other matters, whether the Court of Criminal Appeal had misunderstood the trial judge's reasoning regarding the exercise of discretion to admit the confessional evidence. Specifically, the Court needed to consider the trial judge's statement that they would, in the absence of other factors, exercise their discretion to admit the evidence.

The appellant's submissions, though noted for their stylistic issues, aimed to provide comprehensive assistance on the concepts of voluntariness, fairness discretion, and public policy discretion, drawing on Australian, United Kingdom, and United States jurisprudence. The Court was also directed to consider the timing of the appellant's arrest and charging, and whether the interrogation conducted in the interval was unlawful, in light of relevant authorities.

Orders