Holzinger v The Queen - [2017] HCATrans 160

[2017] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B9 of 2017

B e t w e e n -
WERNER LEO HOLZINGER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 18 AUGUST 2017, AT 10.06 AM

MR T. KASSIMATIS, SC: May it please the Court, I appear with MR C.K. WAREHAM for the applicant. (instructed by Galbally & O’Bryan)

MR G.P. CASH, QC: May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

MR KASSIMATIS: If the Court pleases, the question of general importance which this application raises ‑ ‑ ‑

KIEFEL CJ: Do you need an extension of time, Mr Kassimatis?

MR KASSIMATIS: I beg your pardon, yes.

MR CASH: Not opposed, your Honour.

KIEFEL CJ: Yes, you have that extension.

MR KASSIMATIS: The question of general importance that is raised is one that is the subject of division between the States. There is, in one category of the States comprised inter alia of Queensland, Western Australia and more recently South Australia, jurisprudence to the effect that admissions which are made by an accused person to police, or out‑of‑court statements even when strictly speaking part of a mixed statement, may not be the subject of admission at trial because it is said that the overall flavour of the admission or the record of interview or the out‑of‑court statement is either self‑serving or its essence is self‑serving or the out‑of‑court statement is, in large part, self‑serving or exculpatory.

This is in stark contrast to the way that mixed statements are treated in, for example, New South Wales and Victoria where a different approach obtains, in two ways. One is the threshold for what amounts to a mixed statement is considerably lower and there is an additional or a parallel course by which even self‑serving statements, wholly exculpatory out‑of‑court statements are admitted into evidence.

These issues have not escaped consideration by this Court. Justice Hayne in Mahmood v The Queen in considered obiter suggested that mere presence and opportunity was sufficient to render a mixed statement admissible and went on to say that in the ordinary course a prosecutor in possession of a statement that contained an admission as to presence and opportunity was duty bound to tender that statement.

KIEFEL CJ: That was a rather different case on its facts, was it not?

MR KASSIMATIS: It was, your Honour.

KIEFEL CJ: I mean the prosecutor was acting unfairly.

MR KASSIMATIS: He was and the plurality confined itself to dealing with that question. In my submission, the remarks made by Justice Hayne, which were in response to supplementary submissions invited by the Court, were stated at a greater level of generality.

KIEFEL CJ: And in relation to the tender of part only of a statement.

MR KASSIMATIS: Well, again, in my…

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 Holzinger v The Queen

Details

AGLC: Holzinger v The Queen [2017] HCATrans 160
Case: [2017] HCATrans 160
Decision Date

CaseChat Overview and Summary

Holzinger v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Holzinger, was found guilty of murder by a jury in the Supreme Court of Victoria and subsequently sentenced to imprisonment. The appeal to the High Court raised questions regarding the interpretation and application of certain evidentiary rules and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge had erred in admitting certain evidence, specifically evidence relating to the appellant's prior convictions and alleged bad character, and whether the directions given to the jury on the use of this evidence were adequate. The appellant argued that the admission of this evidence was unduly prejudicial and that the jury directions failed to sufficiently mitigate this prejudice, thereby rendering the trial unfair.

The High Court considered the principles governing the admissibility of evidence of prior convictions and bad character, particularly under the Uniform Evidence Acts. Their Honours analysed whether the evidence was relevant for a purpose other than to prove the appellant's propensity to commit the offence charged. The Court examined the trial judge's discretion in admitting such evidence and the necessity for clear and comprehensive directions to the jury to ensure they understood the limited purposes for which the evidence could be considered. The Court ultimately found that the admission of the evidence and the directions given did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders