Ho v The Queen [2012] HCATrans 199 - [2012] HCATrans 199

[2012] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M166 of 2011
No M167 of 2011

B e t w e e n -
KAM TIN HO
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M177 of 2011

B e t w e e n -
HO KAM HO
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 12.10 PM

____________________

MR L.C. CARTER: May it please the Court, I appear for the applicant, Kam Tin Ho, in matters M166 and M167. (instructed by Theo Magazis & Associates)

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant, Ho Kam Ho, in M177/2011. (instructed by Slades & Parsons Solicitors)

MR S.P. DONAGHUE, SC: If the Court pleases, I appear with MR C.W. BEALE, on behalf of the respondent in each matter. (instructed by Director of Public Prosecutions (Cth))

GUMMOW J: Yes, Mr Carter. Is there any discussion between you and Mr Boyce as to a division of labour?

MR CARTER: There is indeed, your Honour. I propose to address orally the directions in relation to the “possession” and “use” that is ground 2.2 of 166, but not a ground in 167, to adopt in advance what Mr Boyce has to say on the - what is my ground 2.3 - the other directions point primarily to rely on what is in writing as to the unsafe point. Your Honours, in R v Wei Tang (2008) 237 CLR 1which is behind tab 3 of the book of authorities, his Honour Justice Hayne, with the agreement of the other members of the Court, although the Chief Justice did not specifically refer to Justice Hayne’s reasons, wrote at some length about the meaning of possession and ownership. At page 57 of Justice Hayne’s reasons he posed the question at paragraph 143:

How are those abstract ideas to be given practical application?

and there is a lengthy discussion that follows, but could I take your Honours directly to paragraph 147 on page 58. His Honour, having referred to the judgments in He Kaw Teh v The Queen (1985) 157 CLR 523, as to the ordinary meaning of possession in the criminal law said midway through the paragraph:

In considering s 270.3(1)(a) of the Code, however, it will also be important to recognise that the right to possess a subject matter, coupled with a power to carve out and dispose of subsidiary possessory rights, is an important element in that aggregation of powers over a subject matter that is commonly spoken of ‑ ‑ ‑

GUMMOW J: You cannot translate automatically notions of possession from the common law because the common law of Australia has never contemplated one person possessing another.

MR CARTER: Indeed, and ownership is ‑ ‑ ‑

GUMMOW J:

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: [2012] HCATrans 199
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Ho, against the decision of the Queensland Court of Appeal, which had dismissed his appeal against his conviction for murder. The core of the dispute revolved around the admissibility of certain evidence during Ho's trial.

The primary legal issue before the High Court was whether the Queensland Court of Appeal erred in upholding the trial judge's decision to admit evidence of a confession made by Ho to police. This evidence was challenged on the grounds that it was obtained in circumstances that rendered it inadmissible, specifically concerning the voluntariness of the confession and whether Ho had been properly cautioned.

Gummow and Crennan JJ considered the principles governing the admissibility of confessions, particularly the requirement that they be voluntary and not obtained by unfair means. Their Honours reviewed the evidence presented at trial regarding the circumstances of Ho's interview with police, including the length of the interview, the nature of the questioning, and the warnings provided. The Court ultimately found no error in the Court of Appeal's conclusion that the confession was admissible, finding that the trial judge had correctly applied the relevant legal tests.

Special leave to appeal was refused.

Orders