Harwood v the Queen B49/2001 - [2001] HCATrans 578

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B49 of 2001

B e t w e e n -
TODD ANDREW HARWOOD
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GAUDRON J
McHUGH J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 NOVEMBER 2001, AT 10.21 AM

MR A.J. RAFTER: May it please the Court, I appear for the appellant. (instructed by Legal Aid Queensland)

MS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Rafter.

MR RAFTER: Thank you, your Honours. Your Honours, the transcript of the police interview with the appellant which was taken on 18 February 1994 and which is contained in the appeal book from pages 9 to 32 is not the actual transcript that was before the jury, because the original exhibit and the actual transcript used in the trial was not able to be located. The transcript in the appeal book is a transcript of the master tape and it does contain some prejudicial material the jury did not actually have before it. Obviously it is not material to the Court’s consideration of this case. The relevant passages are mainly concerned with break and enter offences and so forth.

The jury did have before it all relevant admissions concerning the shooting at the Coaches Inn and the admissions concerning the robbery at the North Bundaberg Post Office the next day, because the judge had specifically admitted that evidence. The relevant passages concerning the shooting at the Coaches Inn are contained in the interview, firstly at page 16 of the appeal book, commencing at line 40, where the police officer introduces the topic of the shooting at the Coaches Inn and the appellant explains, commencing at line 50:

Well, Gary and I went down the bus depot on Wednesday night because we were looking at doing the cafeteria there in the bus depot. Yeah, but then something happened and we went away and come back. Then we walked around the front, walked up the front of the steps to the bus depot, then it goes into the cafeteria or out where the buses are. I stood at the drink machines in the front foyer there ‑

and it continues.

On the top of page 9 the appellant explains that the co‑offender, Hind, just sat down beside him, that is, the man who was shot, and said”

something like, “You have got to move”, or something, and this bloke has turned around and said, “I am not going nowhere.”, or something like that and then all I heard was the gun shot.

The appellant explains that then the co‑offender, Hind, came running towards him.

If I could continue the references to the police interview at appeal book page 18, commencing at line 40, the appellant explains that Hind was holding a cut-down 22. He said he…

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: [2001] HCATrans 578
Decision Date: 16 November 2001

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Harwood against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from Mr Harwood following his arrest.

The primary legal issue before the Court was whether the evidence, specifically statements made by Mr Harwood and a subsequent identification by a witness, had been improperly obtained, thereby rendering it inadmissible under the common law. This involved an examination of the principles governing the exercise of discretion by a trial judge to exclude evidence that, while technically admissible, might be unfairly prejudicial to an accused or improperly obtained.

The Court analysed the circumstances of Mr Harwood's arrest and the subsequent questioning. It affirmed the principle that a trial judge has a discretion to exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the accused, or if the evidence was obtained improperly. In this instance, the Court found that the trial judge had properly exercised this discretion, concluding that the evidence was not unfairly prejudicial and had not been obtained in a manner that warranted its exclusion. The Court noted that the onus was on the accused to demonstrate that the evidence should be excluded.

The appeal was dismissed.

Orders