Henderson v The Queen and Anor - [2013] HCATrans 241

[2013] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2013

B e t w e e n -
MICHAEL DANIEL HENDERSON
Applicant
and
THE QUEEN
First Respondent
THE HONOURABLE THE ATTORNEY‑GENERAL OF QUEENSLAND
Second Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 12.00 NOON

MR J.J. ALLEN: If the Court pleases, I appear for the applicant in this matter. (instructed by Legal Aid (Qld))

MR M.R. BYRNE, QC: If the Court pleases, I appear for the first respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Thank you.

MR ALLEN: Your Honours, this application involves the important question as to the circumstances in which the Queensland Court of Appeal in hearing a Crown appeal against sentence should be prepared to accept submissions of the appellant as to the level of sentence that is appropriate that differ markedly from the Crown’s submissions at first instance. That is really a subset of the wider and again important question as to how the approach taken by the prosecution at first instance should affect the Court of Appeal’s exercise of jurisdiction on a Crown appeal against sentence at two stages; firstly, at the stage of determining whether to allow an appeal, and if having determined to allow the appeal, at the second stage of determining an appropriate sentence to be substituted. If I could take your Honours to the ‑ ‑ ‑

GAGELER J: What is wrong with the statement of principle in paragraph [51] of the judgment at page 85 of the application book?

MR ALLEN: Can I dissect paragraph [51], because it is important to go to those authorities that are cited therein to see in fact what those authorities said. Your Honours see that obviously there is no problem with the statement of authority that ultimately is:

the imposition of an appropriate sentence rests with the sentencing judge rather than the prosecutor –

But the next proposition stated, and this is central to the issues in this application, is that –

this Court will intervene –

that is the Court of Appeal –

where the sentencing judge failed to appreciate the seriousness of the offending or it is necessary to maintain public confidence in the administration of justice.

Could I ask your Honours to consider those authorities cited at footnote 9 with respect to the proposition that a proper basis for interference arises where the sentencing judge has failed to appreciate the seriousness of the offending, because that was the reason essentially stated at paragraph [52] of the Court of Appeal’s judgment, where they considered that it was appropriate to intervene, notwithstanding the content of the prosecution’s submissions below.

Now, the first decision cited is the decision of this Court of GAS v The Queen, and in particular at paragraph 40 of that…

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: [2013] HCATrans 241
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Henderson against the Crown and the Commissioner of Police, following a conviction for murder. The dispute concerned the admissibility of evidence obtained through a covert recording made by police.

The central legal issue before the High Court was whether the covert recording, made in circumstances where Henderson was not cautioned or informed of his rights, was unlawfully obtained and therefore inadmissible under the *Crimes Act 1914* (Cth) or at general law. The Court also considered whether the admission of this evidence, if unlawfully obtained, was an error that warranted quashing the conviction.

The Court analysed the provisions of the *Crimes Act* concerning the powers of police to intercept communications and the circumstances under which evidence obtained in contravention of these provisions might be admitted. It was held that the recording was made in contravention of the Act. However, the Court applied the principles established in *Bally v The Queen*, which permit the admission of unlawfully obtained evidence if its probative value outweighs its prejudicial effect, and if its admission is in the interests of justice. The Court found that the recording's probative value was high and that its admission was in the interests of justice, despite the unlawful means of its acquisition.

The appeal was dismissed.

Orders