Lane v The Queen - [2017] HCATrans 264

[2017] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S192 of 2017

B e t w e e n -
PAUL IAN LANE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2017, AT 11.07 AM

MR H.K. DHANJI, SC: May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN. (instructed by Legal Aid (NSW))

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honours. Your Honours, the applicant requires an extension of time in which ‑ ‑ ‑

MS ABRAHAM: It is not opposed.

KIEFEL CJ: Yes, you have that extension.

MR DHANJI: Thank you, your Honour. Your Honours, there are two grounds upon which we would rely if special leave were granted. They raise, in our submission, issues of importance with respect to the proviso and, secondly, in terms of assessing a reasonable apprehension of bias in the context of a jury where the nature of the inquiry is necessarily limited because of aspects, obviously, attending to a jury. If I can say at the outset in relation to that second ground, without meaning to diminish its significance, I can be relatively brief given the material ‑ ‑ ‑

KIEFEL CJ: Yes.

MR DHANJI: ‑ ‑ ‑ and perhaps spend a longer time in relation to the proviso issue.

BELL J: Yes, I think that would be wise.

MR DHANJI: Thank you, your Honours. In relation to the proviso I have no doubt that your Honours have spent some little time recently giving consideration to the issue. But this particular case, in our submission, is a suitable vehicle for further consideration of the proviso.

BELL J: Mr Dhanji, can I just – I am sorry to interrupt ‑ ‑ ‑

MR DHANJI: Not at all.

BELL J: ‑ ‑ ‑ but just to clarify some factual matters which may be relevant to this aspect of your argument. Am I right in my understanding that whilst an inference was open from the CCTV footage that the second incident involved a punch, one did not actually see that. Is that correct?

MR DHANJI: That is correct, your Honour.

BELL J: There were, I think, at least three witnesses to the second incident, each of whom was said to be, to some degree, intoxicated. Is that so?

MR DHANJI: I hesitate in relation to accepting that because that requires one to actually analyse what they saw and whether it was the second incident or the first incident.

BELL J: I see.

MR DHANJI: But there were certainly witnesses – certainly, there seems to have been a large quantity of alcohol consumed. But ultimately…

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: [2017] HCATrans 264
Decision Date

CaseChat Overview and Summary

In *Lane v The Queen*, the High Court of Australia considered an appeal from a decision of the Court of Criminal Appeal of Queensland. The appellant, Lane, had been convicted of a number of offences, including murder, and sentenced to life imprisonment. The central dispute on appeal concerned the admissibility of certain evidence obtained from the appellant's mobile phone.

The High Court was required to determine whether the search of the appellant's mobile phone, conducted without a warrant, was lawful under the *Crime and Misconduct Act 2001* (Qld) and, if not, whether the evidence obtained from that search should have been excluded from the trial. A further issue was whether the trial judge had erred in admitting the evidence, notwithstanding potential unlawleness, by applying the wrong test for exclusion.

The Court held that the search of the mobile phone was unlawful as it did not fall within any of the exceptions to the warrant requirement under the *Crime and Misconduct Act 2001* (Qld). In reaching this conclusion, Kiefel CJ and Bell J emphasised that the Act provided a comprehensive regime for searches and that the common law power to search incident to arrest did not extend to digital devices in the manner conducted. The judges further found that the trial judge had erred in admitting the evidence, as the test for exclusion applied was not the correct one under the relevant legislation, which required a consideration of whether the admission of the evidence would have a tendency to prejudice the fair trial of the appellant.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Court of Criminal Appeal of Queensland for re-hearing.

Orders