Martin v The Queen - [2015] HCATrans 273

[2015] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B5 of 2015

No B14 of 2015
B e t w e e n -
KENNETH MICHAEL MARTIN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 10.46 AM

MR S.C. HOLT, QC: May it please the Court, I appear for the applicant in respect in respect of both matters. (instructed by Fisher Dore Lawyers)

MR M.R. BYRNE, QC: If it please the Court, I appear for the respondent in both matters. (instructed by Director of Public Prosecutions (Qld))

KEANE J: Mr Holt.

MR HOLT: May it please the Court. If I could deal with first, because I can do it briefly, the application in B5/2015, that is the application which seeks to agitate principles arising out of the Grierson decision. In light of the affidavit which is at page 108 of the application book, that is, the affidavit which has been provided which annexes the very document that was the foundation for the claim of fraud, any grant of special leave from this Court and then any successful appeal which resulted in the matter going back to the Court of Appeal would, in my respectful submission, be futile. Can I say I do not hold formal instructions to abandon the application but that matter of fact means that it ought not, in my respectful submission, trouble your Honours.

KEANE J: But you do not have those instructions.

MR HOLT: I do not have those instructions. I am sorry, your Honour.

KEANE J: Very well.

MR HOLT: But that is the position and I will not make any further submissions unless the Court pleases. Turning then to the application in B14/2015, in my respectful submission this application for special leave raises a fundamental and important question about the principles that govern the exercise of the discretion to exclude illegally or improperly obtained evidence.

KEANE J: Well, before you get to that, it is three years out of time and there is not really an explanation as to why that is so.

MR HOLT: It is. No, I will address that first. I am sorry, your Honour. The only explanation is that which is in the affidavit of the applicant which essentially, the only matters I can point to properly from that affidavit are that he was incarcerated, unsurprisingly at the time that he was convicted and following his appeal, he still is serving a life sentence, and that he did not receive, as he deposes, legal advice in relation to prospects of a special leave application in relation to the first appeal.

He, in fact, only came then to receive advice about that matter when he sought advice in relation to the matter which I have just invited your Honours not to take too much time with, so that…

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 Martin v The Queen

Details

AGLC: Martin v The Queen [2015] HCATrans 273
Case: [2015] HCATrans 273
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal by Kenneth Michael Martin against a decision of the Court of Appeal. The application concerned the principles governing the exclusion of illegally or improperly obtained evidence. A separate application, B5/2015, was also before the Court, which the applicant indicated might be futile in light of new evidence.

The primary legal issue in matter B14/2015 was whether the Court of Appeal had erred in its application of the discretion to exclude evidence, specifically concerning the characterisation of police conduct. The applicant argued that the Court of Appeal had altered the structure of this discretion by introducing the concept of "flagrancy" in a way that devalued or distinguished it from recklessness, contrary to the principles established in *Bunning v Cross*. The applicant also contended that the delay in filing the application, which was more than three years out of time, was excusable due to incarceration and lack of legal advice, and that the case involved a substantial miscarriage of justice.

The Court considered the applicant's submissions regarding the discretion to exclude evidence, noting that the application was significantly out of time and lacked a satisfactory explanation for the delay. The Court found that the applicant's argument did not present an arguable case that his conviction constituted a miscarriage of justice. Regarding matter B5/2015, the Court determined that the Court of Appeal's decision was plainly correct.

Special leave to appeal was refused in both matters.

Orders