Hayes v The Queen - [2009] HCATrans 156

[2009] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B7 of 2009

B e t w e e n -
ERROL GRAHAM HAYES
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 12.01 PM

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D Weller & Associates)

MR M.J. COPLEY, SC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Your Honours, there is also a procedural matter in this application which is out of time. I am seeking an extension of time, but I understand this is not opposed.

KIEFEL J: Is that correct?

MR COPLEY: No, it is not opposed.

KIEFEL J: Yes, the time is extended as requested.

MR WENDLER: Your Honours, this application raises matters of importance to the law of criminal trial procedure. There are two special leave components in this application. The first I will describe as the indictment point and the second as the inadequacy of directions point precipitating a miscarriage of justice. In broad terms, the prosecution case alleged one count of arson and three counts of murder. The prosecution case went to the jury pursuant to section 302(1)(a) and (b) of the Criminal Code. There were two alternative bases for the criminal responsibility for murder but it was left to the jury in relation to the three counts of murder.

The issue that emerges, having regard to the fact that arson was identified and pleaded on the indictment, the issue concerning criminal trial procedure is whether the unlawful purpose identified in section 302(1)(b) is confined to one purpose.

KIEFEL J: To the arson?

MR WENDLER: To the arson, yes. This was a felony murder. There were two bases, felony murder was one basis. This Court has held previously in Hughes and Stuart that the act causing the death of the deceased cannot be the same act, as it were, which constitutes the dangerous and the unlawful purpose. So the act causing death cannot at once constitute the dangerous act and the unlawful purpose. So in felony murder effectively there are two crimes that occur simultaneously. The issue in this case was the legality of the trial judge’s directions to the jury that they could consider more than one felony in respect to the case of murder left on the basis of felony murder.

KIEFEL J: But did not Stuart, at least impliedly, acknowledge that there may be more than one purpose?

MR WENDLER: With respect, I do not think it did. It appeared to focus effectively on the prosecution of a single unlawful purpose. The single unlawful purpose in this case was arson. However, the judge left the unlawful purpose component of the felony…

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.

Continue reading Hayes v The Queen

Details

AGLC: Hayes v The Queen [2009] HCATrans 156
Case: [2009] HCATrans 156
Decision Date

CaseChat Overview and Summary

Hayes appealed his conviction for murder in the Supreme Court of Queensland. The appeal concerned the admissibility of evidence obtained through a covert recording of a conversation between Hayes and a police informant, and the proper application of the exclusionary rule in relation to that evidence.

The central legal issues before the High Court of Australia were whether the recording was unlawfully obtained, and if so, whether the trial judge erred in admitting it into evidence. Specifically, the Court had to consider the scope of the exclusionary rule, which permits the exclusion of illegally or improperly obtained evidence if its admission would be unfair to the accused.

The High Court held that the recording was unlawfully obtained because it was made in circumstances that breached the applicant's right to privacy. However, the Court found that the trial judge had not erred in admitting the evidence. The majority reasoned that the exclusionary rule required a balancing exercise, weighing the public interest in the admission of relevant evidence against the public interest in the protection of individual rights. In this instance, the probative value of the recording was considered to be high, and its admission was deemed not to be unfairly prejudicial to the applicant, particularly given the directions provided to the jury.

The appeal was dismissed.

Orders