Heaney v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Heaney, sought to challenge a decision of the Court of Criminal Appeal which had dismissed his appeal against a conviction for murder. The dispute centred on the admissibility of evidence obtained during a re-enactment conducted by the applicant while in police custody.

The primary legal issue before the High Court was whether the applicant's rights under section 464C of the relevant legislation, concerning access to legal practitioners, had been adequately complied with prior to the re-enactment. Specifically, the applicant argued that a warning given on an earlier date was insufficient to cover the circumstances of the re-enactment, which occurred two days later and under different conditions of custody. The applicant contended that the trial judge and the Court of Criminal Appeal ought to have approached the exclusion of the re-enactment evidence differently, particularly in light of subsequent High Court authority in *Pollard*.

The applicant's submission was that he was held under section 464B of the legislation, which was not the appropriate section for his circumstances, and was questioned about the offence for which he was in custody. The warning under section 464C, given on 9 January during a record of interview, was argued to be insufficient for the re-enactment conducted on 11 January. This re-enactment, which involved a video recording and resulted in admissions, was considered a separate exercise occurring in entirely different circumstances of custody. The applicant also submitted that the trial judge accepted that the applicant should have been informed of his rights at the time of the re-enactment.

The High Court considered whether the circumstances of the re-enactment on 11 January were sufficiently distinct from the earlier interview on 9 January to require a fresh warning under section 464C. The applicant argued that the warning given on 9 January was during a record of interview, after which he was charged and placed in custody. The re-enactment on 11 January was for a different purpose, namely to locate a body, and occurred while he was taken from Fairlie under what the applicant contended was an unlawful application of section 464B. The applicant's counsel indicated that if the Crown were to argue that section 464C had already been complied with, this point of uncertainty might justify a grant of special leave.