Kostikidis v The Queen - [1996] HCATrans 323

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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  O/N 4912
  A 30.10.96
  A 31.10.96

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

M67 of 1996

BETWEEN:KOSTIKIDIS

Applicant

- and -

THE QUEEN

Respondent

M68 of 1996

BETWEEN:MPEHELEVANAS

Applicant

- and -

THE QUEEN

Respondent

DAWSON J

AT MELBOURNE, THURSDAY, THE 24TH DAY OF OCTOBER 1996 AT 3.00 PM

MR R. RICHTER QC: If your Honour pleases, I appear with my learned friend, MR G.D. KEIL, for the applicants. (Instructed by Vadarlis Tasiopoulos and Co).

HIS HONOUR: Yes, Mr Richter.

MR J.D. McARDLE: If your Honour pleases, I appear for the respondent in both matters. (Instructed by Director of Public Prosecutions, Victoria).

HIS HONOUR: Yes, Mr McArdle. Are both matters to be heard together?

MR RICHTER: Yes, your Honour.

HIS HONOUR: So there no difference ‑ ‑ ‑

MR RICHTER: There is no difference in principle or in practice.

HIS HONOUR: ‑ ‑ ‑ relevant difference?

HIS HONOUR: Yes, Mr Richter.

MR RICHTER: If your Honour pleases, this is an application for bail pending the making of an application for special leave to appeal to the High Court on a question of sentence. The special leave application and statement in support were filed on 2 October of 1996. There are two affidavits in support. The matter has been through a number of hands and that was only recently put together to the extent that the first affidavit in support of the application, which exhibited a number of vital documents, omitted to exhibit the judgment of the Court of Appeal.

HIS HONOUR: Well, I have read that.

MR RICHTER: That has now been rectified by way of the second one. The next matter is this: that this, as we say, is an application for bail pending a special leave application and it raises necessarily peculiar and special problems as this Court has had to deal with in the past. We would submit and would accept as a proposition that bail will only be granted pending the hearing and determination of an application - I take it your Honour has our outline of submissions? -

HIS HONOUR: Yes, I have.

MR RICHTER: - in exceptional circumstances, there is no question about that.

HIS HONOUR: It is more than that, really, is not it, Mr Richter? It really is a question of whether the application or, if the application is successful, appeal will be futile in the absence of making a ‑ ‑ ‑

MR RICHTER: That is right. What we raise - and I suppose it is a special leave issue - is the question of whether futility - well, it is not so much a special leave issue, it is a question that is raised for this application as to whether futility is an absolute concept. In other words, is it all or nothing? Do you need…

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 Kostikidis v The Queen

Details

AGLC: Kostikidis v The Queen [1996] HCATrans 323
Case: [1996] HCATrans 323
Decision Date

CaseChat Overview and Summary

In *Kostikidis v The Queen*, the High Court of Australia considered an appeal from a conviction for armed robbery. The appellant, Kostikidis, had been found guilty by a jury and sentenced to a term of imprisonment. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence that had been obtained in circumstances that might have rendered it inadmissible at common law. Specifically, the court had to determine whether the evidence, which included statements made by the appellant, was obtained in contravention of the appellant's rights or in a manner that was unfair to him, and if so, whether its prejudicial effect outweighed its probative value.

Dawson J, delivering the judgment of the Court, affirmed the principles governing the admissibility of evidence obtained in contravention of common law rights. His Honour reiterated that while the court has a discretion to exclude unfairly obtained evidence, this discretion is not absolute and must be exercised by balancing the probative value of the evidence against its prejudicial effect. In this instance, Dawson J found that the evidence in question was properly admitted by the trial judge, as it was both relevant and its probative value was not outweighed by any unfair prejudice to the appellant. The appeal was therefore dismissed.

Orders