Hooper v The Queen - [1995] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 1995

B e t w e e n -
GRANTLEY JAMES HOOPER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 3.23 PM

MR S.W. TILMOUTH, QC: If the Court pleases, I appear with MR N.M. VADASZ for the applicant. (instructed by N. Vadasz)

MS W.J. ABRAHAM: May it please the Court, I appear with my learned friend, MR S.K. McEWEN, for the respondent. (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ: Yes, Mr Tilmouth.

MR TILMOUTH: Could I take the Court immediately to page 11 of the appeal book to demonstrate the factual basis on which this question is sought to be raised? Page 11 is where the formal interview which is being videoed and audio recorded occurs between the applicant and Detective Anderson. I should tell your Honours that he was earlier arrested, and I use that word deliberately, he was arrested on suspicion of the robbery the day before. He was given his statutory rights to have a solicitor present, have a friend present, and the caution by the police officer in the car on the way to the police station, and where this interview picks up at page 11 is in fact at the police station.

The applicant indicated that he wanted a solicitor to be present. Eventually, a solicitor was contacted and the applicant indicated, at line 16, that he did not wish to say anything until the solicitor “gets here”; that is my paraphrase, of course, but that is what the effect of it was. The formal interview stopped while the solicitor came and the interview then picks up the arrival of the solicitor at page 13 of the application book, and at the top of that page, if the court pleases, my learned junior indicated, lines 2 and 3, that he had given advice that the applicant not answer questions. That was acknowledged by the police officer Anderson at line 5:

‘Okay, so I take it, Grant, you don’t wish to discuss this matter at all?’
‘No.’
‘And I believe you don’t wish to hear any further allegations about this matter that we’ve arrested you for?’
‘No, I don’t see any point in it.’

And then the difficulty arises with respect to this application for special leave to appeal, by invoking the Road Traffic Act. Before I come to that next portion of the material, might I make this submission about the interview to that point? In my submission, putting aside the question of the statute, what next followed would ordinarily have been excluded as irrelevant under Ireland’s case. Indeed, under the decision of this Court in Petty and Maiden, even the conversation exercising the right to silence would normally not be led…

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 Hooper v The Queen

Details

AGLC: Hooper v The Queen [1995] HCATrans 247
Case: [1995] HCATrans 247
Decision Date

CaseChat Overview and Summary

In *Hooper v The Queen*, the High Court of Australia considered an appeal by the applicant, Hooper, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the adequacy of the trial judge's directions to the jury.

The primary legal issues before the High Court were whether the trial judge erred in admitting evidence obtained in breach of a statutory prohibition and, consequently, whether the conviction was unsafe or unsatisfactory due to the admission of that evidence and the nature of the jury directions. The court also had to consider the proper application of the exclusionary rule in relation to evidence obtained in contravention of statutory provisions.

The High Court reasoned that the admission of evidence obtained in breach of a statutory prohibition was not automatically unlawful. Instead, the court applied a balancing exercise, weighing the probative value of the evidence against the prejudicial effect of its admission, and considering the seriousness of the breach. In this instance, the court found that while the evidence was obtained in breach of a statutory provision, its probative value was high and the breach, though not insignificant, did not warrant its exclusion. Furthermore, the court reviewed the trial judge's directions to the jury, finding them to be adequate in the circumstances.

Consequently, the High Court dismissed the appeal, upholding Hooper's conviction.

Orders