Kelly v The Queen - [2003] HCATrans 448

[2003] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H1 of 2003

B e t w e e n -
SHANE LESLIE KELLY
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON MONDAY, 3 NOVEMBER 2003, AT 11.03 AM

MR K.B. PROCTER, SC: If it please the Court, I appear with my learned friend, MR D.R. WALLACE, for the appellant. (instructed by Wallace Wilkinson & Webster)

MR T.J. ELLIS, SC: May it please, your Honours, I appear with my learned friend, MRS C.J. RHEINBERGER, for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

GLEESON CJ: Yes, Mr Procter.

MR PROCTER: I am sorry, your Honours, for the delay.

GLEESON CJ: That is all right; the last counsel who did not turn up in time was from Tasmania also, in Perth last week.

MR PROCTER: Thank you, your Honours. Your Honours, special leave was granted in this matter to argue the question of whether an admission that was made in the course of official questioning – those words appearing in section 8(1)(b) of the Tasmanian Criminal Law (Detention and Interrogation) Act 1995 and that subsection is reproduced.

KIRBY J: Could I just ask a question? We received the submissions from the respondent with a significant written submission on the issue of the proviso, but I do not seem myself to have received a submission in reply. Has there been a submission in reply filed?

MR PROCTER: No, your Honour, that is not filed; in fact ‑ ‑ ‑

KIRBY J: Is there one available, because I think we will need something that refers to the evidence in respect of any matters that you want to say in response to that.

MR PROCTER: Yes, your Honour, unfortunately I did not receive ‑ ‑ ‑

KIRBY J: I am not trying to throw you off course, because obviously we will have to deal with the matter of legal significance that you want to argue, but ultimately we are going to have to come to the proviso question.

MR PROCTER: Yes.

GLEESON CJ: All right, thank you, Mr Procter.

KIRBY J: Yes, I feel happier now that I have that in my possession.

MR PROCTER: Your Honours, the relevant subsection appears as Annexure A to the outline of submissions.

KIRBY J: Was this the first such statute in Australia or what was the history of the introduction of legislation of this kind?

MR PROCTER: I understand, your Honour, that there was identical legislation in New South Wales ‑ ‑ ‑

KIRBY J: I think we were told on the special leave hearing that there were two patterns. There was, I think, a New South Wales, Tasmanian, Western Australian pattern and some other pattern. It might be helpful at some stage for us to have some indication of what that difference was in case…

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 Kelly v The Queen

Details

AGLC: Kelly v The Queen [2003] HCATrans 448
Case: [2003] HCATrans 448
Decision Date

CaseChat Overview and Summary

In *Kelly v The Queen*, the High Court of Australia considered an appeal by the applicant, Kelly, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in breach of the applicant's rights, and whether the cumulative effect of certain directions given to the jury, particularly concerning the issue of self-defence, rendered the trial unfair. The Court also considered the proper application of the exclusionary rule in relation to evidence obtained improperly.

The High Court, by majority, held that the evidence in question, while obtained in circumstances that may have engaged the exclusionary rule, was nonetheless admissible. The majority reasoned that the probative value of the evidence outweighed any prejudice to the applicant, and that the trial judge had properly exercised their discretion in admitting it. Furthermore, the Court found that the directions given to the jury, when considered as a whole, adequately explained the relevant legal principles, including the onus of proof in relation to self-defence, and did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders