Hoang v The Queen - [2022] HCATrans 32

[2022] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S146 of 2021

No S147 of 2021
No S148 of 2021
No S149 of 2021

B e t w e e n -
QUY HUY HOANG
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 MARCH 2022, AT 9.51 AM

MS G.A. BASHIR, SC: May it please the Court, I appear in this matter with MR D.L. CARROLL, who is appearing remotely, and MS G.E.L. HUXLEY for the appellant. (instructed by AA Criminal Lawyer)

MR D.T. KELL, SC: May it please the Court, I appear for the respondent with MS E.S. JONES in this matter. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Bashir.

MS BASHIR: Thank you, your Honours. I trust that your Honours have received our oral outline and submissions.

KIEFEL CJ: Yes, thank you.

MS BASHIR: Thank you. Your Honours, I start then at paragraph 1 of that outline. This case concerns issues as to the proper construction of the provisions of the Jury Act1977 (NSW) and the constitution of the jury, relating in particular to the provision for mandatory discharge of a juror if, in the course of a trial, the juror has engaged in misconduct in relation to the trial. It has particular importance for the conduct of jurors minded to make private inquiries as to matters relevant to the trial where they are sworn as the judges of fact in that trial.

If I could take the Court directly to the sections in the joint book of authorities, the first book, at pages 29 to 30. Your Honours will see at page 29 that section 53A is confined to where the conduct occurs in the course of the trial, and that is in the first line of subsection (1). Misconduct, with which this appeal is concerned, is then defined in subsection (2) and it is:

misconduct, in relation to the trial –

and there are two limbs, the first limb directing attention to the conduct component of a relevant offence against the Jury Act. The second limb, (2)(b), applies to:

any other conduct –

that is conduct that falls outside of (2)(a) conduct, and this limb has attached to it the further component, namely, that the other conduct must give:

rise to the risk of a substantial miscarriage of justice in the trial ‑

Looking back to section 53A(1)(a) and (b), it is clear that mandatory discharge of a juror can be triggered by what might look like mere technicalities on their face, but they are irregularities that strike at the heart of the jury system, that is, they go to the constitution and authority of the jury. In those circumstances – that is (1)(a) and (1)(b) – verdicts can be saved in some circumstances by a…

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 Hoang v The Queen

Details

AGLC: Hoang v The Queen [2022] HCATrans 32
Case: [2022] HCATrans 32
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Hoang against his conviction for a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The appeal concerned the admissibility of certain evidence obtained by police during an investigation.

The central legal issue before the High Court was whether the evidence obtained from Mr Hoang's mobile phone, pursuant to a search warrant, was admissible at his trial. This involved determining whether the police had lawfully exercised their powers under the relevant legislation, specifically concerning the scope of the search warrant and the seizure of digital information.

The High Court analysed the provisions of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) and the common law principles governing the admissibility of evidence obtained under statutory powers. Their Honours considered the requirements for a valid search warrant and the circumstances in which digital information found on a seized device could be lawfully accessed and used as evidence. The Court ultimately found that the search warrant was validly issued and that the subsequent seizure and examination of the digital information on Mr Hoang's phone were lawful. Consequently, the evidence was admissible.

Orders