Handlen v The Queen - [2017] HCATrans 72

[2017] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B67 of 2016

B e t w e e n -
DALE CHRISTOPHER HANDLEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 7 APRIL 2017, AT 9.31 AM

MR W.C. TERRACINI, QC: May it please your Honours, I appear for the applicant with MS E.R. NICHOLSON. (instructed by Burchill & Horsey Lawyers)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR B.J. POWER for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ: Yes, Mr Terracini.

MR TERRACINI: Your Honours, this is an application where we require an extension of time and so I rely on my solicitor’s affidavit. I have nothing further to add in respect of that aspect.

KIEFEL CJ: Is there any objection to the extension?

MS ABRAHAM: No, there is not.

KIEFEL CJ: You have the extension, Mr Terracini.

MR TERRACINI: Thank you, your Honour. This is an application where the applicant was tried in respect of federal offences under the Criminal Code (Cth) and it is, we would submit, a narrow appeal in terms of the interpretation of section 132C of the Evidence Act (Qld). We rely on our submissions in respect of that and our submissions in reply.

If I could just touch on some matters raised by my friend, the respondent. This issue was in fact raised in writing before the Queensland Court of Criminal Appeal and comment was made as to the rejection of our argument as to the interpretation of 132C at page 83 of the application book which is paragraph [86] of the judgment of the Queensland Court of Criminal Appeal. So our contention is that this was raised squarely with the Court of Criminal Appeal and at page 83 in the last paragraph, the Queensland Court of Criminal Appeal said this:

The appellant’s submissions as to judicial fact finding on sentencing are misconceived in that they fail to reflect that the principles stated by the High Court in Olbrich and applied in Leach and Cheung have been modified in Queensland by s 132C Evidence Act.

KIEFEL CJ: Yes, but the question as to whether sections 68, 79 and 80 of the Judiciary Act pick up section 132C was not raised before the Court of Appeal, was it?

MR TERRACINI: That is so.

KIEFEL CJ: That is the question.

MR TERRACINI: Well, the question, we say, your Honour, is that 16A, in effect, covers these aspects and the judiciary sections do not come into play because this Court has on a number of occasions certainly adumbrated that the standard of proof in Commonwealth matters is, on this aspect that we complain of, beyond reasonable doubt.

In both Olbrich and Weininger three members of the High Court…

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: [2017] HCATrans 72
Decision Date

CaseChat Overview and Summary

In *Handlen v The Queen*, the High Court of Australia considered an appeal from a decision of the Court of Criminal Appeal of Queensland. The appellant, Handlen, had been convicted of a number of offences, including murder, and sentenced to life imprisonment. The central dispute on appeal concerned the admissibility of certain evidence obtained from the appellant's mobile phone.

The primary legal issue before the High Court was whether the evidence obtained from the appellant's mobile phone was admissible, notwithstanding that the search of the phone was conducted without a warrant. This raised questions about the scope of the implied freedom of political communication and the extent to which legislation could authorise searches of electronic devices without a warrant, particularly in circumstances where the information sought was not directly related to the commission of an offence. The Court also considered the proper application of the exclusionary rule in relation to improperly obtained evidence.

The High Court held that the search of the appellant's mobile phone was unlawful. Their Honours reasoned that the relevant legislative provisions did not authorise a search of a mobile phone in the manner undertaken, and that such a search infringed the implied freedom of political communication. The Court affirmed that evidence obtained in contravention of constitutional rights, or otherwise improperly obtained, may be excluded if its admission would be unfair to the accused. In this instance, the Court found that the admission of the evidence would have been unfair.

Consequently, the High Court allowed the appeal, quashed the conviction, and remitted the matter to the Court of Criminal Appeal of Queensland for a determination of whether a retrial should be ordered.

Orders