Evidence—Criminal trial—Admissibility—Charge of being knowingly concerned in importation of heroin—Previous misconduct of accused—Evidence of earlier sales and use of heroin.
Decisions
BRENNAN J. This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of Western Australia, dismissing an appeal by the applicant against conviction on five counts of being knowingly concerned in the importation of heroin contrary to the provisions of s.233B(1)(d) of the Customs Act 1901 (Cth). The heroin had been posted by one Martin from London in April 1987 in five parcels addressed to five separate addressees in Western Australia. The importation of heroin by Martin was not in dispute; what was in dispute was whether the applicant, Harriman, had been knowingly concerned in that importation. The application raises for consideration the admissibility of evidence that Harriman had been involved in the sale and use of heroin during the latter months of 1986 or the early months of 1987.
2. Martin and Harriman were the principal shareholders and directors of a mining company which was being pressed by its creditors. According to Martin, who was the principal prosecution witness, the importation of heroin was resolved upon by Harriman and himself as the means of relieving the company's financial situation. It was common ground that in March 1987 Harriman went to Thailand, that in April 1987 Martin travelled to Bangkok where he met Harriman by arrangement, that the two of them travelled together to Chiang Mai by bus overnight and returned by air to Bangkok on the next evening, and that Martin left for London whence he posted the heroin to Australia. Martin said he obtained possession of the heroin during this brief visit to Chiang Mai. If Martin was to be believed, Harriman had arranged for a quantity of heroin to be available for collection in Chiang Mai, arranged for a man to deliver five packets of heroin to Martin in a room in a residential in Chiang Mai (no payment being made by or sought from Martin), assisted Martin to break up the heroin into five separate amounts concealed in drawing sets and instructed Martin to take the heroin to England from where it was to be posted to the addresses in Western Australia, two of which had been provided by Harriman.
3. The facts which were not in dispute at least raise a suspicion, and perhaps support an inference, that Harriman was knowingly concerned in the importation of the heroin by post into Australia. If Martin were believed, of course, there was no doubt about Harriman's guilt, but Martin's evidence was challenged. The defence case, as revealed by cross-examination of Martin, was that Martin had acted independently of Harriman. After Martin was cross-examined, the prosecution sought to tender evidence of earlier heroin-selling by Harriman and Martin and of earlier use of heroin by Harriman. McHugh…
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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AGLC
Harriman v the Queen [1989] HCA 50
Case
[1989] HCA 50
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Harriman, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.
The primary legal issues before the Court were whether the trial judge had erred in admitting evidence obtained in circumstances where the applicant alleged he was unlawfully detained, and whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles. Specifically, the Court had to determine if the evidence was tainted by an unlawful arrest and, if so, whether its admission was nevertheless justified. Furthermore, the Court examined the elements of self-defence as understood in Australian criminal law, particularly concerning the subjective and objective components of the defence.
The Court's reasoning focused on the principles governing the admissibility of evidence obtained in breach of the law, particularly in the context of unlawful arrest. It was held that evidence obtained in consequence of an unlawful arrest is not automatically inadmissible. Instead, a balancing exercise is required, weighing the desirability of admitting relevant evidence against the impropriety of its acquisition. The Court affirmed that the onus is on the prosecution to establish that the evidence should be admitted, and the trial judge must consider factors such as the seriousness of the unlawful conduct, the importance of the evidence, and whether the impropriety was deliberate or accidental. Regarding self-defence, the Court reiterated that the defence requires an honest belief that the use of force was necessary to defend oneself or another, and that the force used was reasonable in the circumstances as the accused perceived them.
The High Court dismissed the appeal, finding that the trial judge had correctly exercised their discretion in admitting the evidence and that the directions on self-defence, when considered as a whole, were sufficient.