IMM v The Queen - [2016] HCATrans 8

[2016] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D12 of 2015

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

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 FEBRUARY 2016, AT 10.19 AM

MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant, with my learned friend, MS K.J. EDWARDS. (instructed by Northern Territory Legal Aid Commission)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.W. NATHAN, SC, for the respondent. (instructed by Director of Public Prosecutions (NT))

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, an outline has been provided ‑ if your Honours might have an opportunity to look at that.

FRENCH CJ: Just take a seat for a moment, Mr Odgers. We will have a look at that. Yes, thank you, Mr Odgers.

MR ODGERS: Your Honours will see from the outline that I propose to do a brief outline of the operation of the Evidence (National Uniform Legislation) Act (NT) which is very largely uniform with a number of other jurisdictions. I am sure a lot of what I say, hopefully, will be – I will keep it brief, and it may be your Honours are fully familiar with it, but it may be useful just to do that brief outline.

As your Honours no doubt appreciate, Chapter 3 deals with the admissibility of evidence. Sections 97 and 137 both fall within Chapter 3. The first key provision in Chapter 3 is section 56, which provides that:

Evidence that is not relevant . . . is not admissible –

and evidence that is relevant is to be admitted except as otherwise provided in the Act. Section 55 defines “relevant evidence”. Your Honours have seen the definition, and it is contained in the outline under point 2. As your Honours appreciate, it is a very broad test which essentially requires a court to conclude that evidence is relevant if it is capable of affecting the probabilities even minimally, and in contrast with probative value which, as your Honours appreciate, requires a judgment of what extent it can affect the assessment of the probabilities.

FRENCH CJ: The words “if it were accepted” play a part in the argument?

MR ODGERS: Of course. Now, there are a number of exclusionary rules within Chapter 3. An example we have given initially is 59, which is the hearsay rule. That provides that an out‑of‑court statement relied on to prove the truth of what was asserted is to be excluded, and then there are a whole series of exceptions to that.

Some of the exceptions – and we have given a couple of examples – 66A, of course, is one and it may be that I will come back to that later…

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 IMM v The Queen

Details

AGLC: IMM v The Queen [2016] HCATrans 8
Case: [2016] HCATrans 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by IMM against a conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant. The appeal was heard by a full bench of the High Court.

The primary legal issue before the Court was whether the admission of the covert recording, which was obtained in circumstances where the appellant had a reasonable expectation of privacy, constituted a miscarriage of justice. This required the Court to consider the application of the exclusionary rule in relation to illegally or improperly obtained evidence, and the principles governing the admission of such evidence in criminal proceedings.

The High Court held that the admission of the covert recording was an error that resulted in a miscarriage of justice. The Court reasoned that the recording was obtained in contravention of the appellant's right to privacy, and its admission into evidence was not justified by any overriding public interest. The Court applied the principle that evidence obtained in breach of a person's rights should generally be excluded unless there are compelling reasons to admit it, and that the onus is on the prosecution to demonstrate such reasons. In this instance, the Court found that the prosecution had failed to discharge that onus.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders