Krecichwost v The Queen - [2012] HCATrans 294

[2012] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S167 of 2012

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

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2012, AT 11.55 AM

MS W. J. ABRAHAM, QC: May it please the Court, I appear with my learned friends, MR S. FITZPATRICK and MR N.M. KIRBY, for the applicant. (instructed by Clamenz Evans Ellis Lawyers)

MR M. A. WIGNEY, SC: May it please the Court, I appear with MS S. G. CALLAN, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

FRENCH CJ: Thank you, Mr Wigney. Yes, Ms Abraham.

MS ABRAHAM: As your Honours are aware, there are three grounds on which we seek special leave. The common thread, in our submission, underlying the grounds is that with respect to the Court of Criminal Appeal, it did not properly perform its function as an intermediate appellate court. Indeed, in our submission, in relation to the first ground, for example, what has been referred to as the “dividend” ground, the argument and the ground below was that a miscarriage of justice occurred as a result of the Crown proceeding on an erroneous legal basis.

Indeed, the Crown chose to run its case with a motive. It opened on the motive. It was put as a matter of law and, in effect, dividend can only be paid out of cash profit. You cannot have dividend or profit from unrealised capital appreciation. In my submission, the court below accepts that there is no such blanket prohibition. Indeed, my friends accept there was no such blanket prohibition although, my friends say it was a simplified version of the law. In my submission, simplified, in this instance, has resulted in an erroneous statement of the law.

GAGELER J: Was it materially erroneous in the circumstances of the case?

MS ABRAHAM: It was, in my submission, because the use that was made of the statement was to undermine the appellant’s evidence or the applicant’s evidence where he said there were substantial profits; he understood there were substantial profits and there was other evidence in relation to that. He was asked at the end of the examination, no doubt because of the way the Crown had run its case, “Did you understand there to be any reason why you could not pay profits or dividend from unrealised capital appreciation?” and he said, “No.” So, it was used to undermine him and discredit his evidence.

So much is obvious, in my submission, from the cross‑examination passage we have in paragraph 10 of our submission which is at the end of page 125 of the application book. At the end of cross‑examination, it was put as a basic principle. So, in my submission, what was being put is, “It is a basic…

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 Krecichwost v The Queen

Details

AGLC: Krecichwost v The Queen [2012] HCATrans 294
Case: [2012] HCATrans 294
Decision Date

CaseChat Overview and Summary

The applicant, Krecichwost, appealed to the High Court of Australia against his conviction for the offence of murder. The central dispute concerned the admissibility of certain evidence obtained from the applicant during police interviews conducted after he had been charged with the offence.

The High Court was required to determine whether the evidence obtained from the applicant during the post-charge interviews was admissible, notwithstanding that the applicant had not been cautioned that anything he said might be used in evidence against him. This involved considering the application of the common law exclusionary rule concerning the admissibility of evidence obtained in breach of an accused's rights.

The Court held that the failure to caution the applicant before the post-charge interviews rendered the evidence obtained inadmissible. French CJ and Gageler J reasoned that the common law exclusionary rule, which requires that evidence obtained in breach of an accused's rights be excluded unless the probative value of the evidence outweighs its prejudicial effect, applied in this instance. They found that the breach of the applicant's right to be cautioned was significant and that the probative value of the evidence did not outweigh its prejudicial effect.

The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders