Kwon v The Queen - [2012] HCATrans 121

[2012] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S152 of 2011

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

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 1.09 PM

MR G.M. THOMAS: May it please the Court, I appear for the applicant. (instructed by Lawyers Corp Pty Limited)

MR L.A. BABB, SC: May it please the Court, I appear the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J: Yes, Mr Thomas.

MR THOMAS: Can I start by addressing your Honours in relation to the parity issue first. The troubling part of this case is that we are dealing with two individuals who had virtually identical subjective circumstances or deceptively similar subjective circumstances and put forward very significant subjective cases. The offences that are referred to in the judgment of the Court of Criminal Appeal, although characterised as being, in a sense, different and also characterised as being lesser in the case of Choi to the extent that he was charged with take part in the supply, it needs to be noted that both the offence of supply and take part in supply arise pursuant to the very same statutory provision, that is section 25(2) of the Drug (Misuse and Trafficking) Act and one needs to be guarded, in my respectful submission, when characterising these as different offences. I have fallen foul to that characterisation myself in the written submissions because I accepted that they were different offences, but they are, in fact, in my respectful submission, the same offence because they arise pursuant to the very same statutory provision that creates the offence.

KIEFEL J: That may be, but there are different degrees of culpability involved, are there not?

MR THOMAS: We accept that. What arises here, in my respectful submission, is the judgment of his Honour Justice Harrison in the Court of Criminal Appeal drew as an extract a set of facts and those same set of facts were relied upon in the case of the applicant as demonstrating sufficient likeness objectively. Those same set of facts were relied upon by the Court in coming to the conclusion that there was insufficient likeness to invoke the application of the parity principles and therein lies the problem, that different people, judicial officers and others, are able to look at the same set of factual material and draw different conclusions about what that material means objectively.

The reason why this matter should come before this Court and have leave granted is that we need on the ground in sentence proceedings, day in, day out, where there are related offenders that need to be dealt with by courts, there needs to be a test stated by this Court, as the highest authority, to aid one in determining with precision how facts are to be…

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: [2012] HCATrans 121
Decision Date

CaseChat Overview and Summary

The case of *Kwon v The Queen* concerned an appeal to the High Court of Australia by the applicant, Mr. Kwon, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the applicant, specifically statements made by him to police. A key legal issue was whether these statements were made voluntarily, given the circumstances of the applicant's detention and questioning. The Court also considered whether the admission of this evidence had resulted in a miscarriage of justice, thereby warranting the quashing of the conviction.

In their joint judgment, Hayne and Kiefel JJ analysed the principles governing the admissibility of confessional evidence, particularly in the context of an accused person's rights. They affirmed that for a confession to be admissible, it must be made voluntarily, meaning it was not the product of coercion or undue pressure. The Court examined the evidence relating to the applicant's state of mind and the conduct of the police officers during the interviews. Ultimately, their Honours concluded that the trial judge had not erred in admitting the statements, finding them to be voluntary and their admission not to have occasioned a miscarriage of justice. Consequently, the appeal was dismissed.

Orders