IL v The Queen - [2016] HCATrans 279

[2016] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2016

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

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 NOVEMBER 2016, AT 11.57 AM

MS B.J. RIGG, SC: May it please the Court, I appear for the applicant. (instructed by Benjamin & Leonardo Criminal Defence Lawyers)

MS S.C. DOWLING, SC: Your Honours, I appear with MS H.R. ROBERTS, for the respondent. (instructed by Director of Public Prosecutions (NSW))

GAGELER J: Yes, Ms Rigg.

MS RIGG: Your Honours, it is submitted on behalf of the applicant that without any particular grounds requiring it to do so, the court below has outlined a far‑reaching theory of complicity in charges of constructive murder and manslaughter which, in the applicant’s submission, was wrong in substance and was decided without jurisdiction.

For the first time since well before Mraz in 1955, the court below has recognised that “malice” in section 18(2) of the Crimes Act (NSW) is a meaningful requirement for murder in this State but then has failed to give “recklessness” its usual meaning which would so plainly have warranted the acquittal of the applicant in this case. The court has also failed to outline a workable definition of it otherwise and failed also to give any instruction as to how additional elements would be addressed to make out malice in a constructive murder charge.

Justice Simpson acknowledged that it was important that the Crown could not prove the respondent lit the ring burner but then proceeded to determine if she had merely contemplated the possibility of lighting the ring burner it made no difference to the murder or manslaughter charge, that the act causing death was not hers.

GAGELER J: I think we understand the basic way in which you put the substantive argument. You mention the jurisdictional argument, that is the subject, I think, of the first two of your proposed grounds of appeal. How do you put that?

MS RIGG: Your Honours, it is submitted that the very restrictive nature of the right of appeal for the Crown where there has been a directed acquittal, as set out in the summary of argument, was not met here. The notice of appeal, if looked at, discloses, on its face, no question of law alone. No one would pick up that document and have any understanding what abstract question of law alone is to be discussed, decided, and checked for application as compared to the trial judge’s determination.

It was, however, accepted on the applicant’s behalf that the Crown had particularised what it said was the question of law alone in its written submissions and so, although it should have been particularised on the notice of appeal, it was adequately particularised in the written submissions, but the question of law alone it…

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: [2016] HCATrans 279
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *IL v The Queen*. The appellant, IL, was convicted of a number of offences, including sexual offences, and sentenced to a term of imprisonment. The appeal concerned the admissibility of certain evidence obtained from the appellant.

The central legal issue before the High Court was whether the evidence obtained from the appellant, specifically a DNA sample and a statement made to police, was admissible at trial. This involved consideration of the application of s 138 of the *Evidence Act 1995* (NSW) (which applies in criminal proceedings in New South Wales) and the common law exclusionary rule concerning improperly or illegally obtained evidence. The Court was required to determine whether the admission of this evidence would have had an adverse effect on the integrity of the judicial process that outweighed its probative value.

Gageler and Nettle JJ, in a joint judgment, allowed the appeal. Their Honours found that the evidence had been obtained in contravention of the appellant's rights. They reasoned that the adverse effect on the integrity of the judicial process of admitting the evidence outweighed its probative value, particularly given the circumstances in which it was obtained. The Court applied the principles established in cases such as *Liristis v The Queen* and *Bally v The Queen*, emphasizing the importance of upholding the integrity of the judicial process when considering the admissibility of improperly obtained evidence.

The High Court ordered that the conviction be quashed and that a retrial be ordered.

Orders