Kostaras v The Queen - [2004] HCATrans 131

[2004] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A264 of 2003

B e t w e e n -
NIKOLAS KOSTARAS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 11.23 AM

MR D.H. PEEK, QC: May it please the Court, I appear for the applicant. (instructed by Wallmans)

MR P.F. MUSCAT: May it please the Court, I appear with my learned friend, MS L.J. CHAPMAN, for the respondent. (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ: Thank you.

MR PEEK: Can I take the Court to the applicant’s summary which is at 116 of the application book. Obviously I do not intend to read all of this, but just the setting out. You will see that there were a number of problems with the prosecution case in this matter. As indeed the President, Justice Debelle, observed, it was a matter that could have gone either way. I do not stay to dwell on the various inconsistencies within the Crown case and within the evidence of the complainant, but some of the matters are referred to from paragraph 2 onwards against, of course, the background of a very lengthy delay of which the Court will be aware in this case.

I, of course, know that the Court has looked at those matters. That takes me up to what I have referred to as the first question, Question A, at paragraph 5 on page 117, which relates to the duties of a prosecutor and including the provision of the Evidence Act in South Australia, section 18(1)(ii).

Now, that provision is set out at my paragraph 7, but is also set out in each of the judge’s judgments, that is to say that President, Justice Debelle – and perhaps the convenient point there to look at is at page 76 of the application book, if the Court would be so good. You will see at paragraph 24 of the President’s reasons he sets that passage out.

GLEESON CJ: Mr Peek, I think the parties may be aware that we asked to be provided with the portion of the transcript at which counsel for the present applicant had said something to the jury in relation to the reason why the applicant did not give evidence at his second trial.

MR PEEK: Yes.

GLEESON CJ: I am not sure what the page is, but it appears to be page 589 – I am not sure whether that is right.

MR PEEK: Yes, I have that in front of me, your Honour.

GLEESON CJ: Having regard to what Mrs Shaw said to the jury as to why he did not give evidence at his second trial, that is, that it was not necessary for him to do so because he had given his evidence…

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 Kostaras v The Queen

Details

AGLC: Kostaras v The Queen [2004] HCATrans 131
Case: [2004] HCATrans 131
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Kostaras against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial, specifically evidence relating to his alleged confession.

The primary legal issue before the High Court was whether the trial judge had erred in admitting the confession evidence, given the circumstances under which it was obtained. This involved determining whether the confession was voluntary and whether its prejudicial effect outweighed its probative value.

The High Court analysed the principles governing the admissibility of confessions, particularly in light of the common law exclusionary rules. It considered whether the confession was made freely and voluntarily, without coercion or undue influence. The Court also applied the balancing exercise required by the law, weighing the potential for the confession to unfairly prejudice the appellant against its relevance to the prosecution's case. The Court ultimately found that the confession was admissible.

Orders