Maloney v The Queen - [2012] HCATrans 243

[2012] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No B27 of 2012

B e t w e e n -
JOAN MONICA MALONEY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 9.39 AM

MS C.A. RONALDS, SC: May it please the Court, I appear with my learned friends, MS S.E. PRITCHARD, SC and, MR A.L. McAVOY, for the appellant. (instructed by Aboriginal & Torres Strait Islander Legal Service)

MR M.D. HINSON, SC: May it please the Court, I appear with my learned friend, MR S.A. McLEOD, for the respondent. (instructed by Crown Solicitor (Qld))

FRENCH CJ: Yes, Ms Ronalds.

MS RONALDS: The applicant contends in this application for special leave that the Queensland Court of Appeal made two significant errors. The first is that in the majority decision their Honours, Justice Chesterman and Justice Daubney, found that there was no breach of section 10 and so there was no act of racial discrimination in relation to what we call the liquor restrictions.

FRENCH CJ: When you talk about breach of section 10, you are invoking that operation of section 10 which, as it were, creates an inconsistency with the State law and then invalidates the State law to the extent of the inconsistency through section 109.

MS RONALDS: Yes, your Honour, and what we say is that ‑ ‑ ‑

FRENCH CJ: As explained in Ward, I think.

MS RONALDS: Yes, your Honour. What we have called the “liquor restrictions” there are a series of provisions that we set out in our submissions but they culminate in Schedule 1R to the liquor restrictions which apply specifically to Palm Island. So this matter only addresses that provision of section ‑ ‑ ‑

FRENCH CJ: The prohibition is of global application within Palm Island.

MS RONALDS: Within Palm Island.

FRENCH CJ: Anybody is affected but you say it is operational discrimination.

MS RONALDS: Yes, your Honour.

CRENNAN J: Just looking for a moment at section 168B(1) of the Liquor Act, the prohibition is confined to a public place in a restricted area?

MS RONALDS: Yes.

CRENNAN J: I wanted to raise that with you, but I do not want to take you off your course, but at some point there is the need, I think, to think about special leave question 1(c) which is to be found in the application book at page 84. Do you have that?

MS RONALDS: Yes, your Honour.

CRENNAN J: There is a reference there to “public and private places” and there would be an issue, I think, about whether that question is, at the moment, misconceived having regard to the provision, section 168B(1).

MS RONALDS: Thank you, your Honour. We will just look at that.

CRENNAN J: But do come to that when it…

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 243
Case: [2012] HCATrans 243
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 certain evidence obtained during a police interview conducted after Mr. Maloney had been arrested and charged.

The primary legal issue before the High Court was whether the evidence obtained from Mr. Maloney during the interview, specifically his admissions, should have been excluded under section 82(1) of the *Uniform Evidence Law* (or equivalent state legislation). This section permits the exclusion of evidence obtained improperly or in contravention of an Australian law. A related issue was whether the trial judge had erred in admitting this evidence, thereby occasioning a miscarriage of justice.

The High Court reasoned that the interview was conducted in circumstances where Mr. Maloney had already been charged with murder. While he had been cautioned, the Court considered whether the interview, and the admissions made within it, were conducted in a manner that was "improper" or in contravention of an Australian law. The Court affirmed the principle that evidence obtained in contravention of a law, or improperly, may be excluded if its admission would be unfair to the accused. The Court ultimately found that the admissions were not obtained improperly or in contravention of any Australian law, and therefore, their admission at trial was not an error.

The appeal was dismissed.

Orders