Joffe v The Queen; Stromer v The Queen - [2013] HCATrans 109

[2013] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S6 of 2013

B e t w e e n -
DANIEL SHAYNE JOFFE
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S14 of 2013

B e t w e e n -
NATHAN STROMER
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 9.29 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.A.C. POTTS, for Mr Joffe in the first of those matters. (instructed by Speed and Stracey Lawyers)

MR M.A. WIGNEY, SC: May it please the Court, I appear for Mr Stromer. (instructed by Johnson Winter & Slattery Lawyers)

MR C.R.C. NEWLINDS, SC: If the Court please, I appear with
MR J.C. GILES for the respondent in both applications. (instructed by Commonwealth Director of Public Prosecutions)

HAYNE J: Yes. Have counsel for the applicants come to any arrangement about how time or argument should be divided?

MR WALKER: Not explicitly. No, your Honour. My understanding is that I would start.

HAYNE J: My question is obviously directed rather ‑ ‑ ‑

MR WALKER: When do I finish? Yes. I fear we have not got past this position but I predict that I probably will not take a full 20, but I must say I had not turned to the next question which was, does my learned friend, Mr Wigney, intend to take another 20? I would imagine that there is a great deal in common in our positions, your Honours.

HAYNE J: I would have thought there was a great deal in common. Is there any reason why argument for the applicants should extend in total beyond, shall we say, 30 minutes?

MR WALKER: Not from my point of view, but I ‑ ‑ ‑

MR WIGNEY: Will be very short and largely adopt Mr Walker’s submissions.

HAYNE J: We might ‑ perhaps 20 to begin with and see where we have got to. Let us work on the normal timing and see where we get to.

MR WALKER: I am obliged to your Honour. Thank you.

HAYNE J: Yes, Mr Walker.

MR WALKER: Your Honours, it does not seem a long time ago that the Court handed down ILP v Chameleon why matters that were covered in that case are now brought back by us for a grant of special leave. The first answer is an obvious one concerning the different nature of the cases. This time, the critical aspects of the definition of financial product is one which maps out the area in which conduct is proscribed so as to produce criminal consequences.

In Chameleon, of course, there was an invalidity of civil transaction which was in question. But the really important and substantive reason why this…

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 Joffe v The Queen; Stromer v The Queen

Details

AGLC: Joffe v The Queen; Stromer v The Queen [2013] HCATrans 109
Case: [2013] HCATrans 109
Decision Date

CaseChat Overview and Summary

In *Joffe v The Queen* and *Stromer v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute concerned the admissibility of evidence obtained through the use of a listening device, specifically whether the evidence was obtained unlawfully and, if so, what the consequences of that unlawfulness were for its admission at trial. The appeals were heard together due to the common legal question they raised.

The primary legal issue before the High Court was whether evidence obtained by means of a listening device, installed and used pursuant to a warrant issued under state legislation, could be admitted into evidence at a criminal trial if the warrant was later found to be invalid. The Court was required to determine the proper application of the exclusionary rule in Australian criminal law, particularly in circumstances where evidence is obtained in breach of statutory requirements, and whether the common law discretion to exclude improperly or illegally obtained evidence applied.

The High Court held that the evidence obtained by the listening device was unlawfully obtained because the warrants authorising its use were invalid. However, the Court clarified that the common law discretion to exclude improperly or illegally obtained evidence is not confined to situations where the impropriety or illegality involves a contravention of a statute. Instead, the discretion extends to all cases where evidence is obtained improperly or illegally, regardless of the source of the impropriety or illegality. The Court found that the trial judges had erred in their approach to the admissibility of the evidence, as they had failed to properly consider the discretionary exclusion of unlawfully obtained evidence.

The High Court allowed the appeals, quashed the convictions, and remitted the matters to the Supreme Court of Victoria for a retrial.

Orders