Irwin v The Queen - [2017] HCATrans 250

[2017] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B48 of 2017

B e t w e e n -
MICHAEL JAMES IRWIN
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 DECEMBER 2017, AT 2.15 PM

MR S.C. HOLT, QC: May it please the Court, I appear for the appellant. (instructed by Nyst Legal)

MR G.P. CASH, QC: May it please the Court, I appear with my learned friend, MS M.B. LEHANE, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Holt.

MR HOLT: May it please the Court. Our ultimate submission is that the jury’s verdict convicting the appellant, Mr Irwin, of unlawfully causing grievous bodily harm was unreasonable. It is our submission that the Court of Appeal of Queensland only came to a contrary view because it made, in effect, two errors. The first error is that the Court of Appeal misapplied section 23(1)(b) of the Criminal Code (Qld), what was prior to amendments in 2011 referred to and are still sometimes colloquially referred to as the defence of accident.

Secondly, because the Court of Appeal, in our submission, failed to recognise that on its own analysis it had identified a necessary reasonable doubt on the Crown case to the extent that the factual findings were available to support a conviction for grievous bodily harm. Before dealing with each of those two propositions, it is important, in my submission, to note that we are in effect now in a level of agreement as to the only factual basis for conviction, the only even potential pathway for conviction that existed in this case. That is an awfully long way removed from what occurred at trial. At trial, as the Court will appreciate, there was, in effect, a credibility contest between the complainant and the evidence that the appellant gave on oath.

The appellant’s account as to how the grievous bodily harm in the form of a very badly broken hip occurred. The complainant’s account was one which the Crown now no longer seeks to rely on. In effect, as we understand it, the respondent accepts the Court of Appeal’s conclusion that it was not rationally open to the jury to accept the complainant’s account, because on the complainant’s account the defendant swung a blow of some sort which was said by the complainant to have glanced his cheek and that he, the complainant, then collapsed with a severe pain to his hip and landed on the ground and the complainant opined in cross‑examination that that may have been as a result of a king kick, as he described it. All of that was unsupported; indeed the medical evidence was entirely to the contrary.

So if I can rewind - we are now in a position where the prosecution – indeed,…

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 Irwin v The Queen

Details

AGLC: Irwin v The Queen [2017] HCATrans 250
Case: [2017] HCATrans 250
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mr. Irwin, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial, specifically evidence obtained through a covert recording of a conversation between Mr. Irwin and a police informant. The core of the appeal concerned whether this evidence should have been excluded under the principles of procedural fairness and the rule against hearsay.

The primary legal issues before the High Court were whether the trial judge erred in admitting the covert recording, and if so, whether the admission of that evidence had occasioned a substantial miscarriage of justice. This involved determining whether the recording was obtained in circumstances that breached Mr. Irwin's right to procedural fairness, and whether the evidence constituted inadmissible hearsay, or if any exceptions to the hearsay rule applied.

The High Court, in a joint judgment, found that the admission of the covert recording was an error. Their Honours held that the circumstances in which the recording was obtained breached Mr. Irwin's right to procedural fairness, as he was not informed of the recording and therefore had no opportunity to object to its use. Furthermore, the Court determined that the recording constituted inadmissible hearsay, as it was an out-of-court statement tendered to prove the truth of its contents. The Court concluded that the admission of this evidence had occasioned a substantial miscarriage of justice, as it was highly prejudicial and likely influenced the jury's verdict. Consequently, Mr. Irwin's conviction was quashed, and a retrial was ordered.

Orders