Grills v The Queen- PJE v The Queen - [1996] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 1996

B e t w e e n -
PATRICK GERARD GRILLS
Applicant
and
THE QUEEN

Respondent

Office of the Registry
Sydney No S154 of 1995

B e t w e e n -
PJE
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 10.12 AM

___________________

MR P. BODOR, QC: If it please the Court, I appear for Grills with my learned friend, MR S.J. ODGERS. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR P. KINTOMINAS: May it please your Honours, I appear for the applicant PJE with my learned friend, MR R.K.M. RASMUSSEN. (instructed by Doherty Partners)

MR R. KELEMAN: If it please the Court, I appear for the respondent in both matters. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Bodor.

MR BODOR: This application arises consequent upon the judgment of his Honour Judge O’Reilly on 6 June. The Court of Criminal Appeal heard the appeal from that judgment on 12 December. In the intervening period, on 9 October PJE was decided by the Court of Criminal Appeal differently constituted. Your Honours, the Court of Criminal Appeal in Grills, for whom Justice Sully spoke, recognised that the appeal of Grills raised important matters for consideration and urgent reassessment by the legislature and other proper revision. We say this is a place for that other proper revision.

His Honour Justice Sully, again speaking for the court, with whom other members agreed, recognised at application book page 20 line 51 that:

It is sufficient to understand that the nature of the matter was such that it was completely predictable that once the trial had commenced, s 409B of the Crimes Act would be invoked, and could be confidently expected to entail, in the current state of authority.....inhibition upon the proper presentation by the present applicant of some, at least, of his intended defences ‑ ‑ ‑

KIRBY J: This is at an interlocutory stage at this stage, is it not?

MR BODOR: Yes.

KIRBY J: Why is it not a proper course to let the matter take its course, the trial to be run and then, if at the end of the day you say it can be demonstrated that you could not get a fair trial, then that is something which will add strength to the argument and the Court would at least then have (a) the conviction, and (b) the facts demonstrating the unfairness?

MR BODOR: Because in this matter we say that by the evidence which is available, the objective evidence which is available before trial, it is apparent what will occur during the trial and that the injustice is predictable.

KIRBY J: You say the essence of the injustice…

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: [1996] HCATrans 273
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Grills and PJE against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically recordings made by police officers who had entered the appellants' premises without a warrant. The appeals were heard together due to the common legal question raised.

The primary legal issue before the Court was whether the evidence obtained by the police through covert surveillance, in circumstances where their entry onto the appellants' property was unlawful, was admissible in the criminal proceedings. This involved an examination of the common law exclusionary rule concerning illegally or improperly obtained evidence and whether the circumstances of the surveillance warranted the exclusion of the recordings.

The Court, applying the principles established in *Bunning v Cross* and *Shamouil v The Queen*, held that the evidence was admissible. Brennan CJ, McHugh and Kirby JJ jointly reasoned that while the entry was unlawful, the illegality did not render the evidence obtained inherently unreliable or unfair to the accused. They emphasised that the court retains a discretion to admit such evidence if its probative value outweighs any prejudice to the accused, and that the illegality of the entry, in this instance, did not necessitate exclusion. The Court found that the evidence was relevant and its admission would not bring the administration of justice into disrepute.

The appeals were dismissed.

Orders