Libke v The Queen - [2007] HCATrans 84

[2007] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B1 of 2007

B e t w e e n -
JUSTIN PATRICK LIBKE
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MARCH 2007, AT 10.04 AM

MR B.G. DEVEREAUX, SC: May it please the Court, I appear for the appellant with my learned friend, MR P.E. SMITH. (instructed by Legal Aid, Queensland)

MR D.L. MEREDITH: Your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Devereaux.

MR DEVEREAUX: Thank you, your Honour. Your Honours, the grounds of appeal fall into three categories: one relating to the cross‑examination by the Crown Prosecutor of the appellant; the second category, if you like, relating to directions given by the trial judge to the jury with respect to the element of consent and defences and including an argument about some written directions; the third category is whether the verdicts were unreasonable.

If I may move straight to the cross‑examination ground. The appellant, Mr Libke, was giving evidence in his defence at his trial in the District Court in Brisbane on some serious charges of sexual offences. He was subjected, in our submission, to questions that were likely to be confusing that contained statements against him that he was not given a proper opportunity to answer and that pitted the prosecutor against him in a personal way. He was interrupted when answering and his answers were criticised. Some questions contained statements that were ‑ ‑ ‑

GLEESON CJ: It sounds like an argument in this Court.

MR DEVEREAUX: Yes, except I am expected to be able to deal with that.

KIRBY J: Good answer.

MR DEVEREAUX: We will see how that goes.

GLEESON CJ: We will reserve our expectation.

MR DEVEREAUX: Some of the questions also contain statements that really were for address and, because of the nature of those questions, we submit the appellant could not fairly deal with those. One example was the comment, “You’re a grown up man.” The effect of these sorts of questions was likely to be that the jury thought that the appellant was unable to answer some questions and propositions put to him and so that affected his credit; and that the prosecutor did not believe him, therefore he must be being untruthful; and that he did not finish his answers perhaps because he could not; and that his answers were not good enough for the prosecutor, so then why should we, the jury, accept him?

There were other questions which attacked his character, leaving the jury to reason that he was an unsavoury person and so a person not to be believed. There were other questions which contained passages from the complainant’s interview with the police which were put to him in a fashion which, we submit, made…

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 Libke v The Queen

Details

AGLC: Libke v The Queen [2007] HCATrans 84
Case: [2007] HCATrans 84
Decision Date: 1 March 2007

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Libke v The Queen*. The appellant, Libke, had been convicted of murder and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence and the fairness of the trial.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in circumstances that may have infringed the appellant's rights, and whether the trial judge's directions to the jury on the issue of self-defence were adequate. Specifically, the Court considered the application of the exclusionary rule in relation to evidence obtained in breach of a suspect's rights, and the proper test for directing a jury on the elements of self-defence, including the requirement for an honest and reasonable belief in the need for force.

The High Court, by majority, held that the trial judge had not erred in admitting the evidence. The Court reasoned that while the evidence may have been obtained in circumstances that raised concerns about the appellant's rights, the trial judge had properly exercised their discretion to admit it, finding that its probative value outweighed any prejudice. On the issue of self-defence, the Court affirmed that the jury must be directed that the defence requires an honest belief on the part of the accused that the use of force was necessary, and that this belief must be reasonably held in the circumstances as the accused perceived them.

The appeal was dismissed.

Orders