Gassy v The Queen - [2007] HCATrans 426

[2007] HCATrans 426

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2006

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

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 9 AUGUST 2007, AT 10.09 AM

MR J.E. GASSY appeared in person.

MR P.R BREBNER, QC: I appear with my learned friend, MS E.F TELFER, for the respondent. (instructed by Director of Public Prosecutions (SA))

GLEESON CJ: Now, Mr Gassy, we have read your written submissions and you have 20 minutes to add anything you desire to add to that.

MR GASSY: Yes, your Honour. I am entitled to emphasise points that I have already made in the written submissions?

GLEESON CJ: You are entitled to use your 20 minutes as you please.

MR GASSY: Thank you, your Honour. I wish to start with the illegal search. The trial judge went to extreme lengths to hide illegality in the issue and execution of the warrant, most notably in the interference of the cross‑examination of Moss - that is at AB 780 – at which defence counsel concludes:

I obviously misunderstood what the purpose of cross‑examination was -

repeatedly prevented counsel from pursuing legitimate lines of inquiry in relation to the issue and the execution of the warrants, and ruling at the end of the voir dire that the search was not attended by illegality or impropriety, a finding which was not open on the facts. Judicial bias was evident throughout the proceedings and the court below covered up the gross mistrial and the unsafe and unsatisfactory verdict.

I will need to address many of the facts in support of my argument. Mrs Gassy was unlawfully stopped. As she was driving away from her premises, one kilometre away, Leonard stepped out, in his own words, “onto the roadway immediately in front of the direction that she was driving” forcing her to stop. She was not in breach of any traffic law nor suspected or any offence. Under New South Wales law the stopping was unlawful.

False pretences were made to Mrs Gassy. Leonard told her “he wanted to execute a search warrant on her premises” and “We have to take you back to your house. Your son is armed and violent.” In the process he caused her to abandon her planned scripture class at a local school. She was coerced. Once Leonard had advised her of the impending search he could not risk her alerting the applicant, for example, by using her mobile phone. Without permission he and Kinsman opened the door and got into the car with her so that Leonard could exert, in his own words, “control” over the situation.

When Maud Gassy refused to drive, Leonard simply took over the driving hell bent on executing his “mission.” She was endangered. They drove her back into what…

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 Gassy v The Queen

Details

AGLC: Gassy v The Queen [2007] HCATrans 426
Case: [2007] HCATrans 426
Decision Date: 9 August 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Gassy, 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 evidence of a confession made by Gassy to police, obtained after he had been cautioned, was admissible. This question involved an examination of the principles governing the admissibility of confessions, particularly in circumstances where the accused may have been under duress or where the confession was obtained in circumstances that might render it unreliable.

The Court analysed the common law rules regarding the admissibility of confessions, including the requirement that confessions must be voluntary. It considered the impact of the caution administered to Gassy and whether the circumstances of the interview rendered the confession involuntary or otherwise inadmissible. The Court ultimately found that the confession was admissible, applying established principles of evidence law.

The High Court dismissed the appeal, upholding Gassy's conviction.

Orders