KG v The Queen; WG v The Queen - [2022] HCATrans 12

[2022] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S222 of 2020

B e t w e e n -
KG
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S67 of 2021

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

KIEFEL CJ
KEANE J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 9.34 AM

____________________

KIEFEL CJ: Ms Wright, I understand that you can hear us, but you cannot see us. Is that correct?

MS WRIGHT: That is so, your Honour. I apologise for the technical issues at the DPP. The AVL system had a major outage this morning unfortunately.

KIEFEL CJ: For your benefit, the panel of Justices is me, Justice Keane and Justice Steward. I will announce the appearances.

MR D.F. JACKSON, QC appears with MR T.F. WOODS for the applicant in the matter of KG v The Queen. (instructed by Jeffreys Lawyers)

MR J.S. STRATTON, SC appears with MS T.R.M. HENNESSY and MS T.T. O’ROURKE for the applicant in WG v The Queen. (instructed by O’Brien Criminal and Civil Solicitors)

MS G.E. WRIGHT, SC appears with MR G.A. NEWTON for the respondent in both matters. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Gentlemen, who is speaking first, KG or WG?

MR JACKSON: Your Honour, we have no objection either way. I am happy to go first if the Court is happy with that.

KIEFEL CJ: Yes, thank you, Mr Jackson. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, it is important to recognise of course that, whilst there is overlapping in the two cases, they are separate and of course they need to be considered separately and, in particular, it was not part of the case against the mother that she was aware of the use of the tools or of the degradation and incarceration in the shed. The case gives rise, in our submission, ultimately to two questions: one question in the sense of law, the other involves the approach to fact in the case of unreasonable verdicts and the issues are related.

May I make a preliminary observation before going to those issues. It is that the case in a sense as it came before the Court of Criminal Appeal raised two extremes. One was that over a period of about 13 years, starting at the age of five, a girl who attended school, performed exceptionally as a track athlete, suffered regular inhuman torture and abuse at the hands of her father, including the penetrations of her body that are referred to in the material, without complaint and without showing any sign of physical or nervous distress that others would have noticed. That is one aspect of it. The other side was that she…

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: [2022] HCATrans 12
Decision Date

CaseChat Overview and Summary

KG and WG appealed their convictions for child sexual abuse offences to the High Court of Australia. The central dispute concerned the admissibility of evidence obtained from the appellants' mobile phones, which had been seized under search warrants. The appellants argued that the evidence was inadmissible because the search warrants were invalid, and consequently, the search and seizure of their phones were unlawful.

The High Court was required to determine whether the search warrants issued for the appellants' mobile phones were valid under the relevant legislation, specifically the *Crimes Act 1914* (Cth). This involved considering whether the issuing officer had reasonable grounds to believe that the phones contained evidence of an indictable offence, and whether the warrants sufficiently described the offence for which the evidence was sought. The Court also had to consider the consequences of any invalidity of the warrants on the admissibility of the seized evidence.

The High Court held that the search warrants were invalid because they did not sufficiently particularise the indictable offences for which the evidence was sought. The warrants referred to a broad range of offences under the *Criminal Code* (Cth) without specifying which offences were relevant to the investigation. Consequently, the search and seizure of the mobile phones were unlawful. The Court applied the principle that a search warrant must clearly identify the offence to which the evidence relates to ensure that the power to search is not exercised arbitrarily. As the warrants were invalid, the evidence obtained from the phones was inadmissible.

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

Orders