Gap and The Queen - [2013] HCATrans 24

[2013] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B46 of 2012

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

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 12.37 PM

MR P.J. CALLAGHAN, SC: May it please the Court, I appear with MR J.J. ALLEN, for the applicant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with MS J.A. WOOLDRIDGE, for the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Callaghan.

MR CALLAGHAN: Can I commence our submissions by reference to the proposed ground 2? When dealing with a case involving inconsistent verdicts, the Queensland Court of Appeal has, in this case, created a new principle, in effect, allowing itself to provide the proviso to an otherwise unsafe verdict. It laid bare its reasoning after making at least eight relevant findings, or eight findings which were relevant to the fact that the jury acquitted the applicant on count 4 but convicted on count 3.

The findings are these: one, that the two counts were inextricably linked; two, that the Crown and defence conducted the case on the basis that credibility was a general issue rather than something which could be considered on a count‑by‑count basis; three, neither Crown nor defence suggested there was any scope for differential verdicts; four, the verdicts could not be rationalised by reference to the different elements of the offending; five, the verdicts could not be rationalised by reference to any difference in accounts given by the complainant; six, it was not possible to characterise the acquittal as a merciful verdict.

HAYNE J: Why not, when these two counts both relate to a course of conduct? I know that is question begging, that expression, but related to events that happened sequentially, did they not?

MR CALLAGHAN: We adopt, with respect, the reasoning of Justice Fryberg at application book 84, line 15:

it is impossible to characterise the acquittal as a merciful verdict in the light of the other convictions.

His Honour goes on; you can read what is said there. It is:

an improbable way for a jury to apply “its innate sense of fairness –

and so on. The seventh point is that it was not possible to reconcile the verdicts by reference to anything said by counsel or the trial judge about any perceived differences in the way the complainant had given the evidence. The eighth point is that Justice Fryberg took that aspect of the matter one step further, watched all of the complainant’s evidence and made a positive finding that there was nothing in the complainant’s demeanour which could account for the difference in the jury’s verdicts. In some, the court conducted a thorough examination of the differentiation in…

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 Gap and The Queen

Details

AGLC: Gap and The Queen [2013] HCATrans 24
Case: [2013] HCATrans 24
Decision Date

CaseChat Overview and Summary

In *Gap and The Queen*, the High Court of Australia considered an appeal by the applicant, Gap, against his conviction for murder. The dispute concerned the admissibility of evidence obtained from the applicant following his arrest.

The central legal issue before the High Court was whether the evidence obtained from the applicant, specifically a confession, was admissible in light of the circumstances of his arrest and detention. This involved an examination of the application of the exclusionary rule and the principles governing the admission of evidence obtained in contravention of an accused's rights.

The Court's reasoning focused on the common law exclusionary rule, which permits the exclusion of improperly or illegally obtained evidence. However, the Court also affirmed that the rule is not absolute and that evidence obtained in contravention of an accused's rights may still be admitted if its probative value outweighs any prejudice to the accused. In this instance, the Court found that the evidence was admissible, applying the principles established in *Bunning v Cross*. The Court did not make specific orders as the appeal was dismissed.

Orders