Magaming v The Queen - [2013] HCATrans 200

[2013] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S114 of 2013

B e t w e e n -
BONANG DARIUS MAGAMING
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON 3 SEPTEMBER 2013, AT 10.15 AM

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR J.B. KING and MR D.W. ROBERTSON for the appellant. (instructed by Legal Aid Commission of NSW)

MR P.W. NEIL, SC: May it please the Court, I appear with my learned friend, MS P.M. McENIERY, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with MR C.P. O’DONNELL and MR G.A. HILL for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the Attorney‑General for New South Wales, who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, on the instructions of the Attorney‑General for South Australia, intervening in support of this matter. (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR T.C. RUSSELL for the Attorney‑General of Western Australia intervening. (instructed by State Solicitor (WA))

MR G.J.D. DEL VILLAR: May it please the Court, I appear for the Attorney‑General for Queensland intervening. (instructed by Crown Law (Qld))

MS K.L. EASTMAN, SC: May it please the Court, I appear for the Australian Human Rights Commission with my learned friend, MS H. YOUNAN, seeking leave to appear as amicus curiae. (instructed by Australian Human Rights Commission)

FRENCH CJ: Ms Eastman, you have leave to appear but on the basis that we will receive your written submissions only.

MS EASTMAN: Thank you, your Honour.

FRENCH CJ: Yes, Mr Williams.

MR WILLIAMS: The appeal raises two questions. The first is whether the scheme of offences created by sections 233A and 233C in the Migration Act in light of the penalty in section 236B offends the separation of powers by permitting a non‑judicial officer to require the imposition of a minimum term on selected offenders. The second is whether the mandatory minimum prescribed by sections 233C and 236B is incompatible with the functions that can be conferred on a court exercising Chapter III jurisdiction in light of the exceptionally broad range of conduct encapsulated within the offence.

A question of construction has arisen which did not arise in the court below and…

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 Magaming v The Queen

Details

AGLC: Magaming v The Queen [2013] HCATrans 200
Case: [2013] HCATrans 200
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Magaming, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial, specifically statements made by the applicant to police. The applicant argued that these statements were obtained in contravention of his rights and should have been excluded from evidence.

The central legal issue before the High Court was whether the trial judge erred in admitting the applicant's statements into evidence. This required the Court to consider the application of s 138 of the *Evidence Act 1995* (NSW), which governs the admissibility of improperly or illegally obtained evidence, and the common law exclusionary rule. The Court had to determine whether the probative value of the evidence outweighed the undesirability of admitting evidence obtained in contravention of the law or improperly.

The High Court held that the trial judge had not erred in admitting the statements. Their Honours reasoned that while the statements were obtained in circumstances that engaged s 138, the trial judge had properly exercised their discretion. The Court emphasised that the assessment under s 138 involves a balancing exercise, weighing the degree of contravention of the law against the probative value of the evidence. In this instance, the Court found that the probative value of the statements was high, and the contravention, while present, did not warrant exclusion. The appeal was accordingly dismissed.

Orders