Hoang v The Queen - [2021] HCATrans 148

[2021] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S6 of 2021

No S7 of 2021
No S8 of 2021
No S9 of 2021

B e t w e e n -
QUY HUY HOANG
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 SEPTEMBER 2021, AT 12.30 PM

KIEFEL CJ: I will announce the appearances.

MS G.A. BASHIR, SC appears with MR D.L. CARROLL for the applicant in each matter. (instructed by AA Criminal Lawyers)

MR D.T. KELL, SC appears with MS B.K. BAKER for the respondent in each matter. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Bashir. Ms Bashir, given the extent of the delay I take it that you will be addressing that question as part of your argument.

MS BASHIR: Your Honours, in terms of that application which we make for a significant extension of time in all four matters, it really runs with the merit of the application itself and ‑ ‑ ‑

KIEFEL CJ: We will consider the application when we consider the substantive matter.

MS BASHIR: Thank you, your Honour. Should I proceed, your Honours?

KIEFEL CJ: Yes, please.

MS BASHIR: Thank you, your Honours. Your Honours, this is a case that concerns juror searches on the internet in breach of a commonly given judicial direction and, as such, it is a matter of significance for all criminal trials. The majority of the intermediate Court of Appeal in the application book at 395, paragraph 92, recognised that the case raises an “important question” about impermissible and permissible juror – they said, “access to”, but we would say searches, on the internet during criminal trials.

The correct interpretation of the Jury Act 1977 (NSW) and the constitution of the jury as it relates to our provisions for mandatory discharge of a juror if, in the course of a trial the juror has engaged in misconduct, is raised on this application. There is a further question, your Honours, of the consequences that flow for verdicts where a trial judge is satisfied that a juror has engaged in a breach of the mandatory provisions but delays the discharging of the juror until after the taking of the verdicts.

Your Honours, the directions given in this trial, both orally and in writing at the outset of the trial, are set out in the application book at 379. That is at paragraphs 29 to 31. They reflect directions given in many – the majority, if not all, criminal trials in the country, and they are critical for the integrity of verdicts in criminal trials.

Contrary to the respondent’s submission at paragraphs 35 and 38, they were not directions in relation to the purposes – the purpose of jurors conducting searches. They were in relation to jurors’ conduct in making inquiries or searches…

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: [2021] HCATrans 148
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.

The central legal issue before the High Court was whether the evidence obtained from Mr Hoang's mobile phone was unlawfully obtained, and if so, whether it should have been excluded from use at his trial under the *Evidence Act 1995* (NSW). Specifically, the Court had to determine whether the police had lawful authority to seize and access the contents of the phone, and if not, whether the admission of that evidence had resulted in a miscarriage of justice.

The High Court held that the police did not have lawful authority to seize and access the contents of Mr Hoang's mobile phone. The Court reasoned that the powers of search and seizure under the relevant legislation did not extend to the contents of a digital device in the manner in which it was accessed. Consequently, the evidence obtained from the phone was unlawfully obtained. The Court then considered whether the admission of this unlawfully obtained evidence had occasioned a miscarriage of justice. Applying the proviso to s 6(1) of the *Criminal Appeal Act 1912* (NSW), the Court concluded that there was no reasonable doubt that the jury would have convicted Mr Hoang even if the unlawfully obtained evidence had not been admitted.

The appeal was dismissed.

Orders