Jobling v The Queen - [2012] HCATrans 26

[2012] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2011

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

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 1.04 PM

MR A.J. GLYNN, SC: May it please the Court, I appear for the applicants. (instructed by Legal Aid Queensland).

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with my learned friend, MR D. BALIC, for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, thank you, Mr Glynn.

MR GLYNN: Your Honours, the incontrovertibility is at least in one significant aspect directed to the protection of the integrity of the court process, and in particular to the finality of a determination which has not been upset by later order of the court. That is spelt out in the judgment of Justices Gaudron and Gummow in Carroll at paragraph 86 where they identify what they describe as:

matters fundamental to the structure and operation of the legal system and to the nature of judicial power.

Then three are essentially focused on the concept of finality and one is focused on the interests of the individual.

BELL J: Can I take up a matter with you arising out of paragraph 86 in Carroll and it is this. The Court in discussing the principles that undergird the notion of incontrovertibility in that passage is doing so in the context of finality between parties. Here one has the conclusion of a proceeding between the Crown and Mr Hinschen resulting in a verdict and proceedings between the Crown and your client. Now, considerations of finality and of oppression in the sense of being twice vexed for the same cause do not seem to me to be so apt when one is not dealing with the same parties.

MR GLYNN: Your Honour, I have no difficulty in accepting that this is an extension of what has been established in prior authority.

KIEFEL J: Your case is really about the potential for abuse of process where the prosecution fails to take account of the verdict in the first trial, is that not more to the point?

MR GLYNN: That is the essence of it, your Honour. The prosecution sought a verdict on a particular basis, asked that any other basis for conviction be rejected, then came along to try Jobling for murder on the – calling the person who had previously been convicted, asking the jury to at least on one approach accept evidence which they had said should be rejected at the previous trial and had clearly been rejected by the jury at the previous trial.

KIEFEL J: So what you have to say is that the charges and the evidence led on the trial against your client…

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: [2012] HCATrans 26
Decision Date

CaseChat Overview and Summary

In *Jobling v The Queen*, the High Court of Australia considered an appeal by the applicant, Jobling, against his conviction for murder. The dispute concerned the admissibility of evidence obtained through a covert police operation.

The central legal issue before the High Court was whether the evidence obtained by police during a covert operation, which involved the applicant being induced to make incriminating statements, was admissible in criminal proceedings. This raised questions about the proper application of the exclusionary rule and the principles governing the admission of evidence obtained in circumstances that might otherwise be considered improper.

The High Court, comprising Kiefel and Bell JJ, analysed the principles of evidence law, particularly concerning the admissibility of evidence obtained by unlawful or improper means. Their Honours affirmed that while courts have a discretion to exclude evidence obtained improperly, this discretion is not absolute and must be exercised by balancing the probative value of the evidence against the unfairness to the accused or the disrepute that might be brought upon the administration of justice. In this instance, the Court found that the evidence was admissible, applying established principles regarding the balance between the need to admit relevant evidence and the protection of individual rights.

Orders