Herbert v The Queen - [2004] HCATrans 425

[2004] HCATrans 425

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P32 of 2003

B e t w e e n -
TROY MATTHEW HERBERT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.50 AM

MR R.D. YOUNG: May it please the court, I appear for the applicant. (instructed by Gunning Young)

MR K.P. BATES: May it please the Court, with my learned junior, MS N.A. LOCKWOOD, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ: Mr Young, it would assist us if you could take us through the legislative provisions that bear on this question referred to, for example, on the top of page 32 of the appeal case. Do you see in the judgment of Chief Justice Malcolm the first complete sentence on page 32? This goes to the issue that you want to raise about what were the maximum available penalties in relation to some of these offences.

MR YOUNG: Yes.

GLEESON CJ: Could you take us through the legislative scheme in relation to that issue, please?

MR YOUNG: Certainly, your Honour. Perhaps I can just go back a step and seek an extension of time for this application.

GLEESON CJ: Is that opposed, Mr Bates?

MR BATES: It is not opposed.

GLEESON CJ: Yes, you have that extension.

MR YOUNG: I am obliged, thank you, your Honour. Section 32 and section 33 – and copies of those appear in the book of materials ‑ ‑ ‑

GUMMOW J: Of the Sentencing Act?

MR YOUNG: The Sentencing Act, yes, enable a procedure whereby pending charges in the Court of Petty Sessions that would otherwise be dealt with in the Court of Petty Sessions ‑ ‑ ‑

GLEESON CJ: This on pages 2 and 3 of the book?

MR YOUNG: Yes, that is correct. Those pending charges can be brought up to a superior court.

GUMMOW J: Just a minute. Take us through the statute.

MR YOUNG: Yes, certainly. The starting point is that there must an offence on indictment being dealt with by a superior court.

GUMMOW J: Where do we see that?

MR YOUNG: That is in section 32(1).

GLEESON CJ: Any pending charge, that means any pending charge in any court.

GUMMOW J: Pending charge is defined in 31, is it not?

MR YOUNG: Yes, I beg your pardon, it is defined in 31. So it is:

a charge, in a court of petty sessions or in the Children’s Court, of an offence . . . for which no sentence has been imposed.

GUMMOW J: That is of an offence whether indictable or simple.

MR YOUNG: Yes, that is correct but it must be an offence of which there is an election for summary jurisdiction.

GLEESON CJ: Say that again?

MR YOUNG: If it…

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2004] HCATrans 425
Case: [2004] HCATrans 425
Decision Date

CaseChat Overview and Summary

Herbert appealed his conviction for murder in the Supreme Court of New South Wales. The appeal concerned the admissibility of certain evidence and the directions given to the jury.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone, specifically text messages and call records, without a warrant. It also considered whether the judge’s directions to the jury regarding the use of this evidence were adequate, particularly in relation to the issue of whether the appellant had knowledge of the contents of the messages.

The Court held that the admission of the mobile phone evidence was not an error. It reasoned that the common law does not require a warrant for the seizure of evidence that is in plain view or readily accessible, and that the appellant had no reasonable expectation of privacy in relation to the contents of his mobile phone at the time of its seizure. Furthermore, the Court found that the trial judge’s directions to the jury adequately explained the relevant legal principles concerning the use of the evidence, including the need for the jury to be satisfied beyond reasonable doubt that the appellant knew the contents of the messages before they could be used against him.

The appeal was dismissed.

Orders