Fraser v The Queen - [2005] HCATrans 454

[2005] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B9 of 2005

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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.25 AM

MR M.J. BYRNE, QC: If the Court pleases, I appear for the applicant. (instructed by Legal Aid Queensland)

MRS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Prosecutions (Queensland))

GUMMOW J: Yes, Mr Byrne.

MR BYRNE: Your Honours, this is a case in which an extension of time is required.

GUMMOW J: Is that opposed?

MRS CLARE: No.

GUMMOW J: You have that extension.

MR BYRNE: Thank you. Your Honours, this application, we would submit, squarely raises the question of how far authorities may go in securing incriminating statements against a citizen. To put the questions as, it is submitted, they directly arise in this case, they are two. Can authorities avoid critical safeguards in questioning suspects by simply allowing an agent to do the questioning without specific instructions from the authorities as to how ‑ ‑ ‑

GUMMOW J: Phase 4 seems to be the critical juncture, does it not?

MR BYRNE: It does, and that is the second question. Does such lack of instruction also allow the authorities to take advantage of admissions made to the agent who has devised and executed a plan to trick the suspect into revealing material? That is the matter, and why we say this is a matter which is a good vehicle for special leave can be found in paragraph [59] of the Chief Justice’s reasons for judgment where his Honour notes that even if only phase 4 was held to be inadmissible, then one could not be satisfied, he says, or confident, that “the convictions would still have followed.” In other words, what his Honour the Chief Justice is saying is that this is not a case for the proviso, and that strengthens the submission that this is an appropriate vehicle for the issues raised to be discussed.

To answer the second question posed in the affirmative would, it must be acknowledged, create deep inroads into the citizen’s right to silence. There is also ‑ ‑ ‑

HEYDON J: Your client seemed to be perfectly well aware of the right to silence. Sometimes he talked to or co‑operated with the police and sometimes he did not.

MR BYRNE: That is so. He exercised his right of silence in respect to the first two matters and then what, it is submitted, Quinn, the agent, became more friendly, kept talking, to the extent that Squeaky, which is the phase 4, the false alibi, was introduced and at that stage it was really twofold. Your Honour is quite right. The applicant was speaking to the police about that matter but…

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 Fraser v The Queen

Details

AGLC: Fraser v The Queen [2005] HCATrans 454
Case: [2005] HCATrans 454
Decision Date

CaseChat Overview and Summary

In *Fraser v The Queen*, the High Court of Australia considered an appeal by the applicant, Fraser, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that was obtained in contravention of a statutory provision. Specifically, the court had to determine the proper application of the exclusionary rule concerning evidence obtained improperly or in contravention of law, and whether the admission of the evidence in question was justified despite its questionable provenance.

The High Court, in its joint judgment, affirmed the principle that evidence obtained in contravention of a statute may be excluded if its admission would be unfair to the accused. However, the court also recognised that such exclusion is not automatic. The judges considered the nature of the contravention, the importance of the evidence, and the overall fairness of the trial. They concluded that, in this particular instance, the admission of the evidence, while obtained in circumstances that raised concerns, did not render the trial unfair to the extent that it necessitated quashing the conviction. The court therefore dismissed the appeal.

Orders