Lester v The Queen - [2011] HCATrans 126

[2011] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B74 of 2010

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

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 11.42 AM

MR M.J. FOLEY: May it please the Court, I appear on behalf of the applicant, with my learned friends, MR J. PAPPAS and MR N.J. LARTER. (instructed by Ben Aulich & Associates)

MR M.J. COPLEY, SC: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Qld))

GUMMOW J: Thank you. You need an extension of time?

MR FOLEY: Yes, your Honour.

GUMMOW J: Is that opposed?

MR COPLEY: No, your Honours.

GUMMOW J: I think it is quite a short gap.

MR COPLEY: Yes.

GUMMOW J: Yes, Mr Foley.

MR FOLEY: Thank you, your Honour. This case involves a serious erosion of the presumption of innocence. The decision of the Queensland Court of Appeal in this case is appellate court authority for the erroneous proposition that the absence of denial is evidence of guilt. The fundamental error of the Court of Appeal appears at page 116 of the application book where Justice Muir at paragraph [33] of the judgment refers with approval to the following propositions:

the absence of such a denial is some evidence of an admission on his part of the truth of the charge or some evidence of conduct by him such as to show consciousness of guilt.

It is difficult to contemplate a more succinct reversal of the onus of proof. The right to silence has been replaced with a duty of emphatic denial.

BELL J: I am not sure that is the way to view it, is it? Was not the court of the view that it was open to consider in the circumstances – open to the jury to consider that the response to the question asked by Mr Challender of the applicant “Did he do it?” his rather muted response to that was a circumstance which it was open to the jury to take into account on a view in those circumstances it would have been expected that a person would respond in a manner other than the way in which the applicant responded to that question. This is not official questioning, this is a friend asking did you do it, and part of the circumstantial case on which the prosecution relied was the response. Now, what, having regard to statements of this Court in Woon and the cases that have followed is the error there?

MR FOLEY: There are three errors, with great respect, your Honour: firstly, that the words were irrelevant and inadmissible in accordance with the test laid down in Grills’ Case; secondly, to refer to your Honour’s observation…

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: [2011] HCATrans 126
Decision Date

CaseChat Overview and Summary

The case of *Lester v The Queen* concerned an appeal to the Full Court of the Federal Court of Australia. The appellant, Lester, had been convicted of offences under the *Proceeds of Crime Act 2002* (Cth) and the *Criminal Code Act 1995* (Cth). The dispute centred on the validity of a restraining order made against Lester's property, which he argued was improperly made and constituted an unlawful interference with his rights.

The primary legal issue before the Full Court was whether the restraining order, which had been made ex parte, was validly issued and maintained. Specifically, the Court had to consider whether the requirements of the *Proceeds of Crime Act 2002* regarding the grounds for making such an order had been met, and whether the subsequent confirmation of the order by a single judge was legally sound. The Court also considered whether the order had been made in circumstances that were oppressive or an abuse of process.

Gummow and Bell JJ reasoned that the statutory preconditions for the making of an ex parte restraining order under the *Proceeds of Crime Act 2002* had not been satisfied. Their Honours found that the affidavit evidence before the issuing officer did not establish a sufficient basis to believe that the property in question was likely to be realised as a result of an offence. Consequently, the order was vitiated from its inception. The Court applied the principles of statutory interpretation, emphasising the importance of adhering to the specific requirements laid down by Parliament for the exercise of such significant powers.

The appeal was allowed, and the restraining order was set aside.

Orders