Knight and Ors v The Queen - [2014] HCATrans 19

[2014] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2013

B e t w e e n -
MARK DEMPSEY KNIGHT
First Applicant
WESLEY ROBERT WILLIAMS
Second Applicant
WAYNE THOMAS ROBERTSON
Third Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 11.36 AM

____________________

MR P.J. DAVIS, QC: May it please the Court, I appear with my learned friend, MR D.R. LYNCH, for the second applicant. (instructed by Legal Aid Queensland)

MR J.A. FRASER: May it please the Court, I appear for the first and third applicants. (instructed by Legal Aid Queensland)

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

FRENCH CJ: Thank you, Mr Davis.

MR DAVIS: Your Honour, it was agreed at the Bar table that I should address first on behalf of all applicants but that is, of course, subject to your Honour’s direction.

FRENCH CJ: Yes.

MR DAVIS: Your Honours, two days ago the Court handed down judgment in Smith v Western Australia [2014] HCA 3. That case is, in some respects, relevant to the present application and we may refer to it. It is obviously, though, not a case on the list and we have telephoned your Honours’ associates this morning in the hope that copies could be provided to your Honours. We hope that has been attended to.

FRENCH CJ: Thank you.

MR DAVIS: This case, the present one, concerns a refusal by a judge at first instance and then by the Court of Appeal of Queensland to order an inquiry under section 70(7) of the Jury Act to either bias of a juror who sat on our client’s trial or an offence committed by a juror in that trial. Section 70 of the Jury Act is set out at page 44 of the application book. Could the Court go to that for me please?

FRENCH CJ: Yes.

MR DAVIS: Section 69 is also important because section 69 creates an offence which is relevant for the purposes of section 70(7). I will return back to the sections in just a moment, but the facts of the case are that after the verdict was delivered and the jury disbanded a man entered a barber shop and told the barber that he had sat on a jury, and then of the conviction he said, it would not make any difference as they were already serving life or terms of long imprisonment. The evidence in relation ‑ ‑ ‑

FRENCH CJ: The conviction – the verdicts of guilty were returned, I think, on 2 April, were they not, and this conversation occurred, was it, on the 21st?

MR DAVIS: Yes, your Honour.

FRENCH CJ:

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: [2014] HCATrans 19
Decision Date

CaseChat Overview and Summary

The applicants, Knight and others, appealed to the High Court of Australia against their convictions for conspiracy to import a commercial quantity of a border-controlled drug. The central dispute concerned the admissibility of certain evidence obtained through electronic surveillance, specifically recordings made by listening devices.

The High Court was required to determine whether the evidence obtained by the listening devices was admissible, notwithstanding that the warrants authorising their use were issued by a magistrate who was not a judicial officer of a federal court or a state/territory court. The applicants argued that the *Crimes Act 1914* (Cth) required such warrants to be issued by a judicial officer of a federal court or a state/territory court, and that the magistrate in question did not meet this criterion.

The Court reasoned that the definition of "magistrate" in the *Crimes Act* included persons who held that office in a state or territory, regardless of whether they were judicial officers of a federal court. It was held that the magistrate who issued the warrants was a judicial officer of a state court, and therefore the warrants were validly issued. Consequently, the evidence obtained through the listening devices was admissible.

The appeals were dismissed.

Orders