Criminal Law—Evidence—Royal Commission—Letters patent issued by Commonwealth and State for concurrent inquiries—Presentment under State law for perjury—Commonwealth law that statement by witness in course of giving evidence before Commission not admissible in Commonwealth, State or Territory civil or criminal proceedings—Whether statement or disclosure made in the course of giving evidence before Commonwealth Commission—Royal Commissions Act 1902 (Cth), s. 6DD—Evidence Act 1958 (Vict.), s. 30. High Court—Criminal law—Special leave—Principles—Point not taken at trial or in Court of Criminal Appeal. Statute—Amendment—Commencement—Amendment to law concerning false evidence before Royal Commission—Amendment effective between giving of evidence and trial for perjury—Whether applicable—Royal Commissions Act 1902 (Cth), s. 6DD—Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (Cth), s. 202.

Decisions

November 8.
The following written judgments were delivered:-
GIBBS C.J. Each of the two applicants was on 10 March 1983 convicted in the Supreme Court of Victoria on a charge of perjury. The particulars of each charge revealed that it was alleged that on 20 October 1981 each applicant gave false evidence when a witness before a Royal Commission being conducted by Mr. F.X. Costigan Q.C., pursuant to a Commission issued by the Governor of Victoria by and with the authority of the Executive Council of that State. By s. 141 of the Evidence Act 1958 (Vict.), as amended, it is provided that any person who, inter alia, upon any oath which is mentioned or referred to in any provision of that Act (which includes an oath administered by a commissioner acting under a commission of inquiry issued by the Governor in Council: ss. 17 and 18) wilfully and corruptly makes any false statement whether oral or in writing shall be deemed to be guilty of wilful and corrupt perjury. The consequence is that a person who knowingly makes false statements on oath before a Royal Commission established under the law of Victoria is liable to be convicted of the offence of perjury under s. 314 of the Crimes Act 1958 (Vict.), as amended. The evidence at the trial showed that on 20 October 1981 each applicant, when examined by counsel assisting the commissioner, made certain statements on oath, which, on 29 October 1981, when recalled to give further evidence before the commissioner, he admitted to be false. There was strong independent evidence of the falsity of the statements. Each applicant was sentenced to a term of imprisonment. An application to the Court of Criminal Appeal of Victoria for leave to appeal against conviction and sentence was dismissed on 19 April 1983. The present applications, instituted by notice of motion dated 24 June 1983, are for an extension of time and for special leave to appeal from the judgment of the Court of Criminal Appeal of Victoria. (at p216)

2. Letters patent in similar terms appointing Mr. Costigan to be a commissioner to inquire into and report…

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 Giannarelli v The Queen

Details

AGLC: Giannarelli v The Queen [1983] HCA 41
Case: [1983] HCA 41
Decision Date: 8 November 1983

CaseChat Overview and Summary

In *Giannarelli v The Queen*, the High Court of Australia considered an appeal from a conviction for conspiracy to defraud. The appellant, Giannarelli, had been found guilty of conspiring with others to defraud the Commonwealth by dishonestly causing the payment of a tax refund to which they were not entitled. The central issue on appeal concerned the admissibility of certain evidence obtained during an investigation by the Australian Federal Police.

The High Court was required to determine whether the evidence, which included documents and statements obtained from the appellant and his co-conspirators, had been unlawfully obtained and, if so, whether it should have been excluded from the trial. Specifically, the court had to consider the application of the principle that evidence obtained in contravention of the law, or in breach of a legal or equitable duty, may be excluded if its admission would be unfair to the accused.

The majority of the High Court, comprising Gibbs C.J., Wilson, Brennan and Deane JJ, held that the evidence was admissible. Their Honours reasoned that while the investigation may have involved some irregularities or breaches of procedure, these did not render the evidence so unfairly obtained as to warrant its exclusion. The court affirmed the principle that the admissibility of evidence is a matter for the trial judge's discretion, to be exercised by balancing the probative value of the evidence against any prejudice it might cause to the accused. In this instance, the court found no error in the trial judge's decision to admit the evidence. Murphy J dissented.

Orders