HT v The Queen - [2019] HCATrans 179

[2019] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S123 of 2019

B e t w e e n -
HT
Appellant
and
THE QUEEN
First Respondent
NEW SOUTH WALES COMMISSIONER OF POLICE
Second Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 SEPTEMBER 2019, AT 10.01 AM

MR T.A. GAME, SC: May it please the Court, I appear for the appellant with MS G.E.L. HUXLEY. (instructed by Maria Walz Legal)

MR D.T. KELL, SC: May it please the Court, I appear for the first respondent with MS E.S. JONES. (instructed by Solicitor for Public Prosecutions (NSW))

MS N.L. SHARP, SC: May it please the Court, I appear with MR T.M. GLOVER for the second respondent. (instructed by Crown Solicitor’s Office (NSW))

KIEFEL CJ: Yes, Mr Game.

MR GAME: If the Court pleases. The Court should have our outline.

KIEFEL CJ: Mr Game, have you had access to the confidential material?

MR GAME: Yes, late last week, but I do need to say something about that which is this - and it does present some difficulty with the presentation of the argument. We have read it but we have given an undertaking which prevents us from communicating about it with the appellant and it prevents us from disclosing to anybody anything about what we have read in it, which includes this Court.

I understand that the second respondent’s position is that I can say no more about the association, the nature of the association, with the person of interest – that is how I will describe them – than that and yet there are very real issues on this appeal about what occurred and whether or not, if you look at my outline, to make explicit that which is perhaps a belief, on the top of page 2 – those two sentences on the top of page 2 at paragraph 7, particularly the second, but both the first and the second - those are things that have to be explored because our opponents are putting an argument that is to the converse, that, in fact, the presence of those people in the appeal meant that she was – how can I say it – [REDACTED]

So I will do my best, but it is very difficult indeed for me to present – your Honours, of course, are not bound by any undertakings, so I have to answer your questions obviously.

EDELMAN J: But it is only relevant, is it not, in relation to the 5D residual discretion because there is no point, as I understand it, that is taken against you on procedural fairness?

MR GAME: They are saying procedural fairness was observed. Both respondents are saying procedural fairness was observed.

EDELMAN J: But there is no point that is taken against you on the basis that, effectively, there would…

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 HT v The Queen

Details

AGLC: HT v The Queen [2019] HCATrans 179
Case: [2019] HCATrans 179
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of HT against a conviction for a sexual offence. The central dispute concerned the admissibility of certain evidence, specifically a recording of an interview between HT and police, and the subsequent use of that recording in the trial.

The High Court was required to determine whether the recording of the interview was admissible in evidence, and if so, whether its admission prejudiced HT's right to a fair trial. This involved considering the application of the exclusionary rule concerning improperly or illegally obtained evidence and the principles governing the admission of evidence that might be unfairly prejudicial to an accused.

The Court reasoned that the recording was not obtained improperly or illegally, and therefore the exclusionary rule did not apply. Furthermore, the Court found that the admission of the recording did not occasion a miscarriage of justice. The judges applied established principles of evidence law, focusing on the probative value of the evidence weighed against any potential prejudice.

The appeal was dismissed, and the conviction was affirmed.

Orders