Gibson v The Queen - [2003] HCATrans 399

[2003] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S429 of 2002

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

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 11.10 AM

MR P. BYRNE, SC: May it please the Court, I appear for the applicant with my learned friend, MR G.W. TURNBULL. (instructed by Forsters Solicitors)

MR G.E. SMITH: May it please the Court, I appear for the respondent with my learned friend, MR D.C. FREARSON. (instructed by the Solicitor for Public Prosecutions)

McHUGH J: Yes, Mr Byrne.

MR BYRNE: Your Honours, this application raises what is, in our submission, a question of importance in the administration of criminal justice, namely, the scope and nature of the obligation of the Crown to call witnesses in a criminal trial. Essentially, it is contended that this case raised for determination the question of the application of the principles established by this Court in R v Apostilides, a decision of the Court in 1984. The relevant part of the Court’s decision in Apostilides is set out in the judgment of Justice Sully in the Court of Criminal Appeal and it appears at page 210 of the application book.

KIRBY J: There is no new legal principle. It is simply the application of well‑established principle.

MR BYRNE: Yes, your Honour.

KIRBY J: It does not sound a very attractive special leave point then, looking at it from our point of view, unless it is a miscarriage of justice.

MR BYRNE: There is, in our submission, a matter which does ‑ ‑ ‑

KIRBY J: This is the Evidence Act point, is it?

MR BYRNE: No, it is not so much the Evidence Act point, in our submission, but the question that Apostilides in effect creates two propositions which should be applied. In our submission, in this case attention has only been given by the Court of Criminal Appeal to one of those propositions.

The principle is sometimes shortly expressed as the obligation of the prosecution to call a witness in its case and to question that witness and adduce evidence from the witness. There is another way in which the prosecution may in effect present a witness in a criminal trial which does not require the prosecution to examine the witness and it is recognised in Apostilides that where a decision is made by the Crown Prosecutor not to call a witness, and if I might quote briefly from what is said by the joint judgment of the Full Court in Apostilides, and it is probably most useful to refer to page 210 of the application book, alongside line 50 this observation is made by the joint reasons of the Full Court:

In most cases where a prosecutor does not wish to lead evidence from…

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 Gibson v The Queen

Details

AGLC: Gibson v The Queen [2003] HCATrans 399
Case: [2003] HCATrans 399
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Gibson, against his conviction for murder. The central dispute concerned the admissibility of a confession made by Gibson to police.

The primary legal issue before the Court was whether the confession was improperly obtained, thereby rendering it inadmissible under the common law. This involved an examination of whether Gibson's will was overborne by the conduct of the police, or if the confession was obtained by unfair or unjust means.

The Court analysed the circumstances surrounding the confession, including the length of questioning, the applicant's state of mind, and the nature of the police interrogation. Applying the principles established in *R v Ireland* and *Bunning v Cross*, their Honours determined that the confession was not unfairly obtained. The Court found that Gibson was not subjected to oppressive or unfair treatment, and that his confession was voluntary.

The appeal was dismissed.

Orders