Maloney v The Queen - [2012] HCATrans 343

Replacement Transcript

[2012] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B57 of 2012

B e t w e e n -
JOAN MONICA MALONEY
Appellant
and
THE QUEEN
Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 DECEMBER 2012, AT 10.15 AM

(Continued from 11/12/12)

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Your Honours, to conclude the third point could I ask the Court to go to one case, Castlemaine Tooheys 169 CLR 436 at 478, which I referred to yesterday. Could I seek to apply our argument to the statements by Justices Gaudron and McHugh, found in the middle of that page? The first statement is:

A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant –

in this case a distinction based upon race. Our first argument is that a law which imposes a more rigorous restriction on a right in one community, as a response to a type of harm which often flows from misuse of the right, but is found in that community in a greater quantity than elsewhere, does not operate by reference to a racial distinction within section 10, even if that community is overwhelmingly one race. If that is correct the law still must meet the second challenge and dropping down to the next sentence –

a law is discriminatory if, although it operates by reference to a relevant distinction –

Here, the relevant distinction is the quantity of harm flowing from alcohol violence in the community area - that is the relevant distinction. It would nevertheless be discriminatory if the difference in treatment –

is not appropriate and adapted to the difference or differences which support that distinction.

The law survives that second challenge in this case, particularly by reference to the matters Mr Sofronoff has identified.

Your Honours, finally in relation to point 4, or special measures. If your Honours have the text of Article 1.4 of the Convention, and we deal with this in paragraphs 52 and following of the written submissions. The two critical elements of special measures I wish to pick up this morning are, firstly, the need or the deficiency in the enjoyment of rights and that comes from the reference to:

racial . . . groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals [receive] equal enjoyment or exercise of human rights –

That is the starting point, we submit, which is a need or a deficiency in the enjoyment of rights, and in an appropriate case that would be a justiciable question. In the present case it is accepted that there is a need or deficiency, at least within the terms of Article 5(b) of the Convention, and it may well be that some of the…

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 Maloney v The Queen

Details

AGLC: Maloney v The Queen [2012] HCATrans 343
Case: [2012] HCATrans 343
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Maloney against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from a search of Mr Maloney's property, which was conducted without a warrant. The prosecution contended that the search was lawful under s 98 of the *Crimes Act 1914* (Cth), which permits searches without a warrant if the officer believes on reasonable grounds that evidence of an indictable offence is likely to be found and that it is not practicable to obtain a warrant. Mr Maloney argued that the evidence obtained from this search should have been excluded due to the illegality of the search.

The High Court was required to determine whether the police officers had reasonable grounds to believe that evidence of an indictable offence was likely to be found at Mr Maloney's property and whether it was not practicable to obtain a warrant. Further, the Court had to consider whether, if the search was unlawful, the evidence obtained should have been admitted under s 138 of the *Evidence Act 1995* (Cth), which allows for the admission of unlawfully or illegally obtained evidence if its probative value outweighs the public interest in preserving the integrity of the administration of justice.

The Court analysed the evidence presented to the police officers prior to the search, focusing on whether it established reasonable grounds for their belief. It was held that the information available to the officers did not, on its own, support a belief that evidence of an indictable offence was likely to be found at the property. Consequently, the search was deemed unlawful. The Court then considered the application of s 138, weighing the probative value of the evidence against the public interest in excluding unlawfully obtained evidence. The Court found that the probative value of the evidence did not outweigh the public interest in maintaining the integrity of the administration of justice, and therefore, the evidence should have been excluded.

The appeal was allowed, Mr Maloney's conviction was quashed, and a retrial was ordered.

Orders