Goldsmith v The Queen - [1993] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1993
B e t w e e n -
KAMAHL JAMES GOLDSMITH

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN ACJ
GAUDRON J

McHUGH J

Goldsmith

5/3/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MARCH 1993, AT 2.02 PM

MR B.R. MARTIN, OC:

May it please the Court, I appear with

my learned friend, MR W.F. BRAITHWAITE, for the
applicant. (instructed by J.M. Hartnett, Director,
Legal Services Commission (South Australia))

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS P. KELLY,

for the respondent. (instructed by B.M. Selway,
Crown Solicitor, South Australia)

BRENNAN ACJ:	Yes, Mr Martin.
MR MARTIN:	If the Court pleases, we are concerned with

legislation that came into effect in South
Australia on 6 July 1992 which had the effect in
the matter before Your Honours of preventing the applicant, who is a 16-year-old Aboriginal child
charged with murder, from cross-examining the only
witness who implicates him in the death of the

deceased. The witness is a 16-year-old, at that
time, Aboriginal girl who gave two versions to the police which exculpated the applicant; and then a
third about a month after the incident in question,
in which she alleged that the applicant on the
night of the incident confessed his involvement in
the crime to her.
That confession does not appear in the

transcript before Your Honours. If I may read it
very briefly. There are two very brief passages in
her statement, she, having described that they had
come out of a bedroom and seen the co-accused
assaulting the deceased, said that a little later
they had returned to the bedroom and then,
according to her later statement, the applicant
left the room, came back after 20 minutes and said
to her:
I jumped on his head a couple of times and
dragged him to the fence and chucked him over.

His head fell off when I chucked him over.

And then a little later in the statement she said:
I remember also that when Kamahl -

that is, the applicant -
came inside after he said he had been outside
the front of the house to Shorty -

Shorty being the deceased, he said -
I was giving Shorty mouth to mouth

resuscitation and I was feeling his pulse. He
then said, "I thought he was still alive so

Goldsmith

5/3/93

that is why I jumped on his head a couple of

times. I think I might have finished him
off".

So a confession in contradictory terms, one minute
mouth to mouth, followed by "I jumped on his head".
So that is the sole evidence, in effect,

against the applicant and that witness was
subsequently provided with an immunity from
prosecution.
It was that witness the applicant sought to

cross-examine, together with the police officers
who had dealt…

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 Goldsmith v The Queen

Details

AGLC: Goldsmith v The Queen [1993] HCATrans 46
Case: [1993] HCATrans 46
Decision Date

CaseChat Overview and Summary

The applicant, Kamahl James Goldsmith, a 16-year-old Aboriginal child charged with murder, sought special leave to appeal to the High Court of Australia. The dispute concerned the application of South Australian legislation, which came into effect on 6 July 1992, preventing the applicant from cross-examining the sole witness implicating him in the death of the deceased. This witness was a 16-year-old Aboriginal girl who had provided conflicting statements to the police, initially exculpating the applicant before later alleging he confessed to the murder.

The central legal issue before the High Court was whether the new legislation, which required the applicant to satisfy the court that there were special reasons for calling a witness for cross-examination, unfairly disadvantaged the applicant. Specifically, the court had to consider the impact of this legislative change on the applicant's ability to challenge the evidence against him, particularly given that a co-accused, who was the witness's uncle and whose preliminary hearing preceded the legislative amendment, had been able to extensively cross-examine the same witness under the previous provisions.

The applicant's counsel argued that the legislation created an unfair balance between the two accused, whose interests were in conflict. The co-accused had used the prior opportunity to cross-examine the witness to exculpate himself while implicating the applicant. The applicant contended that the new requirement for "special reasons" to call a witness for cross-examination, as stipulated by the amended Justices Act, was primarily concerned with matters of fairness and that its application in this instance prejudiced his defence. The court acknowledged familiarity with the statutory provisions in question.

Orders