Marks v The Queen - [1998] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S56 of 1997

B e t w e e n -
DAVID ALLAN MARKS
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 9.30 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent with my learned friend, MR M.C. MARIEN. (instructed by S.E. O’Connor, Solicitor for the Director of Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Game.

MR GAME: If the Court pleases, in our submission, the probative and prejudiced discretion, which now finds its expression in section 137 of the Evidence Act, took a wrong turning in its determination of its scope and application in a case called Carusi, which was applied in this case.

McHUGH J: Well, I know that, but it seems to me that your problem lies at the threshold and it is that there was no wrongful exercise of discretion on the part of the judge. That it was a necessary consequence of accepting Detective Marsh’s evidence, that Mr Schultz could not see the name and although it might have been preferable for the learned judge to express the issue in the way that the Court of Appeal did it, nevertheless, having regard to his findings of fact he addressed the right issue.

MR GAME: Well, your Honour, I cannot say I was not expecting that to be put to me. In fact I was having an argument with Mr Odgers about how quickly that would come but we do attempt to have an answer to that rather decisive answer to our special leave application.

McHUGH J: I think, for my part, it is quite decisive because, speaking only for myself, I would think that if discretion did miscarry then the Court of Criminal Appeal could not possibly have exercised the discretion itself. So, from my point of view, that is the vital question.

MR GAME: Could I have an attempt to talk you out of your answer to the special leave application? Really, what happened was this: that the trial judge said, “I do not interpret that answer in the way in which you would like me to interpret it”. We said to the Court of Criminal Appeal, “Well, that is an illogical finding of fact”. Justice Hidden accepted that proposition. That, therefore, left the discretion unexercised because obviously that was a threshold factual issue and then there were the other issues that came into play: the nature of the prejudice and how the accused found himself having to, in effect, highlight the prejudice to meet his case. So that brought into play a series…

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.

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Details

Case: [1998] HCATrans 163
Decision Date

CaseChat Overview and Summary

In *Marks v The Queen*, the High Court of Australia considered an appeal by the applicant, Marks, against his conviction for murder. The dispute centred on the admissibility of evidence obtained through a search of the applicant's property.

The primary legal issue before the High Court was whether the evidence obtained from the search, conducted pursuant to a warrant, was admissible given that the warrant was later found to be invalid. This raised questions about the proper application of the exclusionary rule in Australian criminal law, particularly in circumstances where evidence is obtained under a defective legal instrument.

The Court, comprising McHugh and Kirby JJ, analysed the principles governing the admissibility of evidence obtained in contravention of the law. Their Honours affirmed that the common law exclusionary rule, which permits the exclusion of illegally or improperly obtained evidence, is not absolute. The Court held that the admissibility of such evidence is a matter of discretion, to be exercised by the trial judge. This discretion requires a balancing of the probative value of the evidence against the degree of its unfairness to the accused, including the circumstances in which it was obtained. In this instance, the Court found that the trial judge had erred in admitting the evidence without adequately considering the impact of the warrant's invalidity on the fairness of the trial.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders