IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S178 of 1995
B e t w e e n -
JAMES ANDREW GORDON
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
BRENNAN CJ
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 11.09 AM
Copyright in the High Court of Australia
MR G. CORR: May it please the Court, I appear for the applicant. (instructed by B.R. Mills, Aboriginal Legal Services (New South Wales))
MR R. KELEMAN: May it please the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))
BRENNAN CJ: Yes, Mr Corr.
MR CORR: Yes, your Honours. The Court of Criminal Appeal found that it was fair that a person who appeared to be in their mid‑forties should be identified by comparison to a number of people who appeared to be approximately 30. The rationale for this appears to be that the person was, in fact, approximately 30 and that he should be compared with those people he would expected to look like.
KIRBY J: Do we have the photos? It was conducted by photograph, was it not?
MR CORR: It was, indeed.
KIRBY J: Are they available to the Court?
MR KELEMAN: We have brought the video along and if the Court is minded to, we are happy to make it available to the Court. I do not know whether you have video facilities inside. It is a standard video.
KIRBY J: Somewhere in the bowels of the Court. Is it important for the applicant’s case?
MR CORR: Well, it was accepted by the Court of Criminal Appeal in Justice Grove’s argument at page 88 of the application book. In the third paragraph, he said:
They could be criticized if they asked for an identification to be made of the appellant where he, aged thirty one, was placed in a photographic line‑up, as it were, with men of maturer years, say in the mid forties, which is, to my eye, the appearance that the appellant displays in the photograph.
BRENNAN CJ: What is the question of principle?
MR CORR: The question of principle is whether, when a person is placed in a line‑up or a photographic identification of some sort, whether, if there has been some change in their features either by themselves or naturally occurring, they should be placed with the people they would be expected to look like or those people that they do, in fact, look like. If the logic of ‑ ‑ ‑
BRENNAN CJ: Is this a general question of legal principle or is it just a question of the way in which you fairly conduct a line‑up or similar identification procedure?
MR CORR: Well, I think it goes to the general fairness of identification evidence generally because if the person is sufficiently distinguished from the other persons in the line‑up or the photographic identification becomes that they are…
Continue reading Gordon v The Queen
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- AGLC
- Gordon v The Queen [1996] HCATrans 271
- Case
- [1996] HCATrans 271
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant, specifically statements made by him and a knife found in his possession. Furthermore, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles.
The Court held that the evidence obtained from the appellant was unlawfully obtained and should have been excluded. Brennan CJ and McHugh J found that the search of the appellant's premises and the subsequent seizure of the knife were conducted without lawful authority, and the statements made by the appellant were tainted by this illegality. Kirby J, while agreeing with the outcome, focused on the broader question of whether the admission of such evidence, even if unlawfully obtained, was in the interests of justice. The Court also found that the directions on self-defence were insufficient, failing to adequately explain the subjective and objective elements required to establish the defence.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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