Gately v The Queen - [2007] HCATrans 315

[2007] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B15 of 2007

B e t w e e n -
GRAHAME JAMES GATELY
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 18 JUNE 2007, AT 2.19 PM

MR P.E. SMITH: May it please the Court, I appear for the appellant in this matter. (instructed by Fisher Dore)

MR B.G. CAMPBELL: May it please the Court, I appear with my learned friend, MR P.J. ALSBURY, for the respondent. (instructed by Director of Public Prosecutions (Qld))

GLEESON CJ: Yes, Mr Smith.

MR SMITH: Your Honours, the appellant seeks to raise three issues on this appeal. Firstly, whether the jury in this particular case could have unrestricted access to the pre‑recorded evidence; secondly, if such access was given, whether the trial judge should have given any directions about that evidence; and finally, whether the prosecutor in this case could lead a full evidence‑in‑chief and then tender a police statement earlier made by that witness.

If I could turn to the first point which is the unrestricted access point, on 5 January 2004 the Evidence Act 1977 (Qld) was amended, your Honours, and the relevant amendments are in reprint 7E which is in the appellant’s schedule of legislation filed on 5 June. Your Honours may see that section 21AK provides that:

an affected child’s evidence must be taken and video‑taped at . . . (a preliminary hearing) presided over by a judicial officer.

Relevantly in this case the complainant was an affected child witness because section 21AC defines that term, which means:

a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding -

and a “relevant proceeding” is defined at page 28 as:

a criminal proceeding for a relevant offence -

and “a relevant offence” means “an offence of a sexual nature”. So there is no dispute here that there was an affected child witness.

In Queensland we call that a pre-recording of evidence and “evidence” under that section is defined under subsection (9) as including – this is page 36:

evidence‑in‑chief or evidence given in cross‑examination or re‑examination.

In the instant case the complainant’s evidence was given by a pre‑recording conducted on 7 October 2004. At appeal book page 11, your Honours, is where that commenced. Your Honours may see that continued over a number of pages, in particular page 16. That was the evidence‑in‑chief and one can see the complainant gave a detailed account of the allegations against the appellant. Then that pre‑recorded evidence was played to the jury on the first day the jury commenced to hear evidence at page 130.

Importantly, at page 162 of the appeal book at line 10 there was discussion about what sort of directions the trial judge would give and the defence counsel at about line…

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 Gately v The Queen

Details

AGLC: Gately v The Queen [2007] HCATrans 315
Case: [2007] HCATrans 315
Decision Date: 18 June 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Gately against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence in the context of a jury trial.

The primary legal issues before the Court were whether the trial judge erred in admitting evidence obtained from the appellant following his arrest, and whether the judge's directions to the jury on the issue of self-defence were adequate and correctly stated the relevant legal principles. Specifically, the Court had to determine if the evidence was obtained in contravention of the appellant's rights and, if so, whether its admission was nevertheless justified. Furthermore, the Court examined the elements of self-defence as understood in Australian criminal law and whether the jury had been properly instructed on the subjective and objective components of that defence.

The Court's reasoning focused on the interpretation of provisions governing the admissibility of evidence obtained from an accused person and the established common law principles concerning self-defence. It was held that while the evidence in question was obtained in circumstances that might have raised concerns, the trial judge had correctly exercised their discretion to admit it, finding that its probative value outweighed any potential prejudice. Regarding self-defence, the Court affirmed that the jury must be satisfied beyond reasonable doubt that the accused did not act in self-defence, and that the defence requires both an honest belief in the need for force and that the force used was reasonable in the circumstances as the accused perceived them. The Court found that the directions given by the trial judge, when read as a whole, adequately conveyed these principles to the jury.

The appeal was dismissed, with the High Court upholding the conviction.

Orders