IL v The Queen - [2017] HCATrans 65

[2017] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S270 of 2016

B e t w e e n -
IL
Appellant
and
THE QUEEN
Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 APRIL 2017, AT 10.16 AM

MS B.J. RIGG, SC: May it please the Court, I appear for the appellant with my learned friend, MR R.C. PONTELLO. (instructed by Benjamin & Leonardo Criminal Defence Lawyers)

MS S.C. DOWLING, SC: May it please the Court, Dowling for the respondent, I appear with MS H.R. ROBERTS. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Rigg.

MS RIGG: Your Honours have the outline of the appellant’s argument – should I proceed?

KIEFEL CJ: Yes.

MS RIGG: Thank you. Your Honours, there are essentially two matters raised in this appeal, one of complicity and one in relation to the question of malice in a constructive murder charge. In relation to the question of complicity, the appellant’s argument is as follows. Firstly, that its complicity in the homicide which is required ‑ and this same argument applies to the manslaughter charge as well which is the alternative to the charge of murder. Certainly, so far as murder is concerned, it is the appellant’s submission that insofar as section 18 of the Crimes Act refers to the act of the accused, that should, as far as possible, be treated equivalently for all forms of murder and, in that respect, the common law of complicity should be examined to see whether it is capable of application to constructive murder as well as other kinds of murder.

KIEFEL CJ: In the context of section 18?

MS RIGG: Yes, your Honour. It is submitted that liability should depend on responsibility on the appellant’s behalf for physical and mental elements as they arise and that the section should be interpreted so far as possible to preserve the presumption of innocence; that is, the presumption of innocence in murder, despite the fact that she is guilty or may be guilty of the foundational crime, and the requirement for intention in relation to grave, serious crimes so far as that is capable of being viewed as part of the relevant legislation. So this is really a submission about the legality principle that, if there is a choice, the legislation should be read so as to preserve those fundamental principles of the common law.

There have in New South Wales and in Victoria for decades been cases which, without officially or explicitly explaining why this is so, applied principles of complicity in relation to the homicidal act, not just the foundational crime. So this is the line of authority which in New South Wales includes the 1978 decision of Johns and the later decision of Sharah.

There has been significant querying of Sharah insofar as…

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 IL v The Queen

Details

AGLC: IL v The Queen [2017] HCATrans 65
Case: [2017] HCATrans 65
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by IL against a conviction for murder, following a decision of the Court of Criminal Appeal of New South Wales. The central dispute concerned the admissibility of certain evidence obtained from IL's mobile phone, which the trial judge had admitted over objection.

The primary legal issue before the High Court was whether the evidence obtained from IL's mobile phone was improperly admitted at trial, thereby rendering the conviction unsafe. This involved determining whether the search of the phone was lawful and whether the evidence derived from it was relevant and admissible under the rules of evidence, particularly in light of potential breaches of privacy or statutory provisions.

The High Court analysed the circumstances surrounding the acquisition of the data from the mobile phone, considering the relevant provisions of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) and common law principles governing the admissibility of evidence. The Court ultimately found that the search and seizure of the phone's data were lawful and that the evidence obtained was properly admitted. The reasoning focused on the scope of police powers in relation to digital devices and the application of evidentiary rules to such material.

The appeal was dismissed, and the conviction was affirmed.

Orders