Giourtalis v The Queen - [2014] HCATrans 80

[2014] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S207 of 2013 ‑ S263 of 2013

B e t w e e n -
ANGELOS GIOURTALIS
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 11.40 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MS G.A. BASHIR. (instructed by Sydney Criminal and Family Lawyers)

MR P.W. NEIL, SC: May it please your Honours, I appear for the respondent with my learned friend, MR P.R. McGUIRE. (instructed by Director of Public Prosecutions (Cth))

MR GAME: We are out of time by a short time and we seek an extension.

KIEFEL J: Is there any difficulty with the extension?

MR NEIL: Not opposed, your Honour.

KIEFEL J: Yes, you have the extension, Mr Game.

MR GAME: Your Honours, we are newcomers to this case - I will not say more about that but - if I could take your Honours to application book No 1 at page 92 we see first what are described as the mistakes. Now, it is part of our case that what was ultimately encompassed by mistake was, as it were, the whole of the defence case or, to put it another way, that the fraud was proved by showing that none of the things that the applicant did could have been mistakes. I will show how that plays out shortly, your Honours.

The court then upheld in principle grounds 1 and 2 and we see page 99, ground 1 upheld. Page 101, ground 2 is upheld. Now, a little later in the judgment it is suggested that, as it were, the Browne v Dunn error could be limited to the counts on which that submission was made but because it is a submission about credibility and the Crown Prosecutor actually said it showed that the accused was making it up as he was going along, that is the submission he put about these Browne v Dunn points to the jury. It goes to his credibility generally. It is not limited to particular counts.

Then, your Honours, in respect of mistake, if we come then to pages 104 and 105, we see a ground of appeal that was dismissed and I am going to that ground to draw out how the mistake was actually used. You see on the top of page 105 in respect of tendency, the name of those three companies. So what is actually happening is that the mistake about the identity of the companies is being used, shall I say, offensively to establish tendency and coincidence. So it is not as though it is co‑lateral. It is actually sitting as part of the case. So the honest mistake feeds into the tendency and coincidence directions.

If you see at the top of page…

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: [2014] HCATrans 80
Decision Date

CaseChat Overview and Summary

Giourtalis appealed his conviction for aggravated burglary and assault occasioning actual bodily harm. The appeal concerned the admissibility of evidence obtained from a covert recording made by the complainant, who was also the victim of the alleged offences. The complainant had placed a recording device in her own home without the knowledge of the appellant, who was residing there at the time. The recording captured conversations between the complainant and the appellant, which were subsequently used as evidence against him at trial. The appeal was heard by Kiefel and Keane JJ of the High Court of Australia.

The central legal issue before the High Court was whether the admission of the covertly recorded evidence was an abuse of process, thereby rendering the trial unfair. This required the Court to consider the principles governing the admissibility of evidence obtained in circumstances that might otherwise be considered unlawful or obtained without consent, particularly where such evidence is crucial to the prosecution's case. The Court had to balance the public interest in the conviction of offenders with the protection of individual privacy and the integrity of the judicial process.

Kiefel and Keane JJ held that the admission of the covert recording did not constitute an abuse of process. Their Honours reasoned that while the recording was made without the appellant's consent, it was not obtained by unlawful means in a manner that would necessarily render its admission an abuse of process. The Court distinguished this situation from cases where evidence is obtained through illegal surveillance or by violating fundamental rights. They affirmed that the trial judge had properly exercised their discretion in admitting the evidence, finding that its probative value outweighed any prejudice to the appellant. The appeal was accordingly dismissed.

Orders