Kinghorn v The Queen & Ors

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, represented by Mr B.W. Walker SC, sought leave to appeal against a decision of the New South Wales Court of Criminal Appeal. The core of the dispute revolves around the interpretation of statutory provisions concerning the admissibility of evidence obtained through compelled self-incrimination, particularly in the context of the accusatorial principle and the companion rule in criminal justice.

The legal issues before the High Court included whether the New South Wales Court of Criminal Appeal had erred in its interpretation of key High Court decisions, specifically *Lee* and *IBAC*, in relation to the accusatorial principle and the principle of legality. The applicant argued that the Court of Criminal Appeal had wrongly distinguished between pre-charge and post-charge conduct and had misconstrued the relationship between *Lee*, which dealt with the admissibility of compelled evidence at trial, and *IBAC*, which concerned the availability of compelled self-incrimination powers. The applicant contended that the Court of Criminal Appeal's reasoning created an unsatisfactory tension with established jurisprudence concerning fair trial requirements.

The applicant's primary submission was that the Court of Criminal Appeal's distinction, which hinged on the lawfulness of pre-charge conduct, was an inapposite basis for its reasoning. It was argued that the critical question, as established in *Lee*, was not the lawfulness of the initial questioning but whether the subsequent use of that evidence at trial would result in a miscarriage of justice by arming the prosecution with the accused's evidence, thereby undermining the fundamental nature of a fair trial. The applicant further argued that the Court of Criminal Appeal had mistakenly equated the situation with *IBAC*, failing to recognise that *Lee* concerned the forensic balance between prosecution and accused, a matter not raised in *IBAC*. The applicant sought special leave to resolve these perceived tensions and ensure the proper application of fundamental principles of criminal justice.