Lappas v The Queen - [2004] HCATrans 46

[2004] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Registry No C12 of 2003
B e t w e e n -
SIMON LAPPAS
Applicant
and
THE QUEEN
Respondent

Notice of motion

McHUGH ACJ
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MARCH 2004, AT 9.06 AM

MR R.J.H. MAIDMENT, SC: May it please the Court, I appear for the applicant on the notice of motion. (instructed by Director of Public Prosecutions (Commonwealth))

MR L. LASRY, QC: If the Court pleases, I appear with my learned friend, MS J.L. SAUNDERS, on behalf of the applicant for special leave. (instructed by Ken Cush & Associates)

MR G. O’L. REYNOLDS, SC: May it please the Court, I appear with MR K.P. SMARK, on behalf of John Fairfax Pty Limited, Federal Capital Press of Australia Pty Limited and Nationwide News Pty Limited. I also appear with my learned friend, MR R.P. CLYNES, on behalf of the Australian Broadcasting Corporation. Each of the companies for whom I appear seeks leave to intervene in these proceedings in relation to the notice of motion before the Court today. (instructed by Minter Ellison)

McHUGH ACJ: Yes. We will deal with your application after we deal with the parties, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour.

McHUGH ACJ: Yes, Mr Maidment.

MR MAIDMENT: May it please the Court. What we seek today is such protection as is necessary to ensure that the subject matter of the proceedings, that is, three documents and the information contained in those documents, which had been classified as top secret and was said by an expert called during the course of the trial, although perhaps not appropriately classified as top secret, nevertheless, to have been appropriately classified as secret.

McHUGH ACJ: Yes, but this application seems to me to be totally misconceived and, indeed, by filing the notice of motion and the affidavit in support, you have created a problem that did not previously exist. Whoever is responsible for this notice of motion does not seem to have any understanding of what is involved in a special leave application. A special leave application is to be dealt with on what is in the book and there is not a reference to 99 per cent of the material referred to in the annexures to the affidavit, they could not be referred to.

The only matter that refers to anything that could possibly prejudice the security of the Commonwealth is contained in certain pages in the summing up, which itself is an irrelevancy and should never have been included in the application book. Why was it not objected to? What does the summing up have to do with an appeal on sentence?

MR MAIDMENT: Your Honour, as I understand it – and I did not deal with the persons concerned directly – that it was as a result of communication with the Court that the summing up…

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 Lappas v The Queen

Details

AGLC: Lappas v The Queen [2004] HCATrans 46
Case: [2004] HCATrans 46
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Lappas against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from Mr Lappas following his arrest, specifically a confession made to police. The High Court was tasked with determining whether this confession was lawfully obtained and, consequently, whether it should have been admitted as evidence at trial.

The primary legal issue before the High Court was whether the confession made by Mr Lappas was obtained in contravention of s 138 of the *Evidence Act 1995* (NSW). This section requires a court to exclude evidence if its admission would be contrary to the public interest, having regard to the circumstances in which it was obtained, including whether the evidence was obtained in contravention of an Australian law. The court also considered the application of the common law exclusionary rule, which allows for the exclusion of improperly or illegally obtained evidence.

The High Court, in a joint judgment, held that the confession was obtained in contravention of s 99 of the *Bail Act 1978* (NSW), which requires an arrested person to be brought before a magistrate or court as soon as reasonably practicable. Mr Lappas was not brought before a magistrate until some 36 hours after his arrest, a delay that was found to be unreasonable. The Court reasoned that the contravention of s 99 of the *Bail Act* was a significant factor weighing against the admission of the confession under s 138 of the *Evidence Act*. While acknowledging the probative value of the confession, the Court concluded that the public interest in upholding the rule of law and deterring unlawful police conduct outweighed the desirability of admitting the confession.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders