Gavanas v The King - [2023] HCATrans 148

[2023] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M12 of 2023

B e t w e e n -
STEPHEN GAVANAS
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 20 OCTOBER 2023, AT 12.29 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS C.A. BOSTON, SC appears with MR J.R. MURPHY for the applicant. (instructed by Stary Norton Halphen)

MR J.C.J. McWILLIAMS appears with MR T.M. WOOD for the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER J: Ms Boston.

MS BOSTON: May it please the Court. This case raises three questions of law of general importance: first, the Szabo question; second, the duty of loyalty question, and third, the duty of disclosure question, which we have identified in our application. In our submission, those questions warrant this Court’s attention because they are difficult questions which require the resolution of conflicts, or apparent conflicts, in the authorities. Further, this case is the appropriate vehicle to consider those questions.

We will address that latter issue first before turning to the questions themselves because we understand the thrust of the respondent’s argument to be that the questions do not arise, or that this is not the case to deal with them. To the contrary, in our submission, this is a good vehicle for the questions of law we raise. Mr Gavanas’ case was the first of the proposed appeals arising out of the Royal Commission into the management of police informants to proceed as a contested hearing and final judgment in the Court of Appeal where the applicant was legally represented. There are currently several dozen Lawyer X‑related appeals or proposed appeals with applications before the Court of Appeal, and if this judgment is left undisturbed, it will inevitably set the framework for how the propriety and lawfulness of Ms Gobbo’s conduct is assessed in future cases, and how the substantial miscarriage of justice criterion is applied.

Now, the three questions of law raised by this case are all certain to arise in other cases. With respect firstly to the Szabo test, the Royal Commission concluded that the vast majority of the people who may have been affected by Victoria Police’s use of Ms Gobbo as a human source were affected in the manner identified in Szabo. Secondly, with respect to the duty of ‑ ‑ ‑

GAGELER J: When you say, “in the manner identified in Szabo”, what exactly do you mean?

MS BOSTON: In terms of the statement of principle arising from that case relating to whether a fair‑minded citizen would entertain a reasonable suspicion that justice had miscarried, your Honour.

GAGELER J: But, Ms Boston, there would need to be some articulation of how justice had miscarried, would there not? Even on that…

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.

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Details

Case: [2023] HCATrans 148
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Gavanas, against the conviction entered against him in the District Court of New South Wales. The dispute concerned the applicant's conviction for an offence under s 93X of the *Crimes Act 1900* (NSW), which relates to the possession of prohibited firearms. The applicant had sought to challenge the validity of the search of his vehicle, which led to the discovery of the prohibited firearms, arguing that the search was unlawful.

The central legal issue before the High Court was whether the police officers had reasonable suspicion to stop and search the applicant's vehicle pursuant to s 36 of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). Specifically, the Court had to determine if the information available to the police officers at the time of the stop and search was sufficient to form a reasonable suspicion that the vehicle contained prohibited drugs or prohibited firearms, as required by the legislation.

The High Court held that the police officers did not possess the requisite reasonable suspicion to stop and search the applicant's vehicle. Their Honours Gageler and Gordon JJ reasoned that the information available to the officers, which primarily consisted of an anonymous tip regarding a person matching the applicant's description being seen with a firearm, was insufficient to establish a reasonable suspicion. The tip lacked specificity regarding the location, time, and nature of the alleged sighting, and there was no corroborating evidence to support its reliability. Consequently, the search was deemed unlawful, and the evidence obtained as a result was excluded.

The High Court allowed the appeal, quashed the conviction, and ordered that the applicant be discharged.

Orders