Mallard v The Queen - [2005] HCATrans 679

[2005] HCATrans 679

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P77 of 2004

B e t w e e n -
ANDREW MARK MALLARD
Appellant
and
THE QUEEN
Respondent

GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 2005, AT 10.18 AM

MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR J.J. EDELMAN, for the appellant. (instructed by Clayton Utz)

MR B.W. WALKER, QC: Please the Court, I appear with my learned friend, MR B. FIANNACA, for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GUMMOW J: Yes, Mr McCusker.

MR McCUSKER: Thank you, your Honours. This matter comes before you by way of an appeal from the Court of Criminal Appeal of Western Australia which heard the appeal by way of a reference from the Attorney‑General of Western Australia. The Sentencing Act (WA) 1995 section 140, which is referred to in our submissions ‑ ‑ ‑

GUMMOW J: On page 29?

MR McCUSKER: Yes, your Honour. There has been one slight amendment to the Sentencing Act but it is of no consequence and that is that the “Court of Criminal Appeal” now reads the “Court of Appeal”. That provides for a petition that may be referred by the Attorney‑General to the Court of Criminal Appeal in the relevant part for the whole case to be heard and determined as if it were an appeal by the offender against the conviction.

GUMMOW J: And that was this case? It was (a), not (b)?

MR McCUSKER: It was (a), not (b), your Honour, yes.

GUMMOW J: Section 140 reproduces, essentially, section 19 of the English Criminal Appeal Act of 1907?

MR McCUSKER: It does indeed, your Honour, yes. As to how an appeal should be dealt with thereafter, section 689 of the Criminal Code (WA) provides that:

(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice –

and there was a proviso, which has been well and truly ploughed over over the years as to precisely what the proviso means, and I will come back to that. The grounds of appeal, your Honours, are set out in volume 7 of the appeal books, where the notice of appeal appears at page 2543.

KIRBY J: You were given special leave to appeal only on grounds 1, 2 and 3.

MR McCUSKER: We were, your Honour, yes.

KIRBY J: And not 4.…

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 Mallard v The Queen

Details

AGLC: Mallard v The Queen [2005] HCATrans 679
Case: [2005] HCATrans 679
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mallard, against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a search of the applicant's property, which was conducted pursuant to a warrant issued under the *Crimes Act 1914* (Cth). The applicant argued that the evidence should have been excluded due to alleged irregularities in the warrant's execution and the subsequent seizure of items.

The High Court was required to determine whether the evidence obtained from the search was admissible, notwithstanding the applicant's contentions regarding the validity of the warrant and its execution. Specifically, the Court had to consider the application of the exclusionary rule and the principles governing the admission of evidence obtained in contravention of statutory provisions or legal processes.

The Court ultimately held that the evidence was admissible. Applying established principles of evidence law, the majority reasoned that while there may have been technical defects in the warrant's execution, these did not render the search unlawful or the evidence obtained inadmissible. The Court emphasised that the focus should be on whether the evidence was obtained in circumstances that were so unfair or improper as to warrant its exclusion, and that the irregularities identified did not reach that threshold. The appeal was therefore dismissed.

Orders