Massey v The Queen - [2013] HCATrans 245

[2013] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C4 of 2013

B e t w e e n -
REBECCA ANNE MASSEY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 OCTOBER 2013, AT 1.45 PM

MR J. PAPPAS: Yes, may it please your Honours, I appear for the applicant in this matter. (instructed by Ben Aulich & Associates)

MR H.K. DHANJI, SC: I appear with MR J.G. LUNDY for the respondent. (instructed by Director of Public Prosecutions (ACT))

MR PAPPAS: Your Honours, this application springs from the proposition that it is not the common law that an original aggressor cannot raise a plea in self‑defence or plea of self‑defence, and to direct a jury in that fashion is take away from the jury a question of fact and a jury function. In the Victorian decision of Anandan v The Queen the Supreme Court of Victoria identified a miscarriage of justice in a direction which may have left the jury believing that an original aggressor could not act in self‑defence, and, your Honours, I will take you in a moment, if I may, to the relevant parts of that judgment.

One of the things that was said by his Honour Justice Nettle was that there were three things wrong with the direction in that court, that is wrong in the sense that they did not comply with what this Court said in Zecevic v The Director of Public Prosecutions, and your Honours will find that at paragraph 19 of his Honour’s judgment, and that is found at page 50 of the applicant’s authorities. In fact it commences at paragraph 18. First, his Honour said there that the plurality in Zecevic were talking about original aggression being:

aggression which involved the use of force; not just any aggressive behaviour as the judge’s direction suggested.

Ultimately the Court of Appeal in the Australian Capital Territory sought to distinguish Anandan by categorising that understanding of Zecevic as wrong.

CRENNAN J: Did the other Justices of Appeal in Anandan agree with Justice Nettle on this point or were they silent on that point?

MR PAPPAS: Not that I could find, your Honour. I know that the Court of Appeal in the Australian Capital Territory suggested that Justice Oghlan by implication did, but I had difficulty identifying any passage in the judgment of Justice Oghlan which in terms seemed to endorse that proposition.

CRENNAN J: I had the same problem.

MR PAPPAS: But, more significantly, in my submission, is the error which his Honour identified at paragraph 19 of the judgment in Anandan, and that is, he says that:

Secondly, Wilson, Dawson and Toohey Justice did not say that the self‑defence is not open unless an accused who is the original aggressor ceases to behave aggressively ‘before the relevant time’. Their Honours said…

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 Massey v The Queen

Details

AGLC: Massey v The Queen [2013] HCATrans 245
Case: [2013] HCATrans 245
Decision Date

CaseChat Overview and Summary

Massey appealed his conviction for murder in the Supreme Court of Queensland. The central issue on appeal concerned the admissibility of evidence obtained from a search of the appellant's mobile phone. The prosecution sought to rely on text messages found on the phone, which they argued were relevant to establishing the appellant's motive and intent. The appellant contended that the search of his phone was unlawful and that the evidence derived from it should have been excluded.

The High Court of Australia was required to determine whether the search of the appellant's mobile phone was conducted in accordance with the law, specifically whether it was authorised by a search warrant that adequately described the place to be searched and the things to be seized. The Court also had to consider the principles governing the admission of evidence obtained in breach of a statutory provision, particularly the discretion to exclude such evidence where its admission would be unfair to the accused.

The High Court held that the search warrant was invalid because it failed to sufficiently particularise the place to be searched, thereby rendering the search of the mobile phone unlawful. The Court affirmed that evidence obtained in contravention of a statutory provision is not automatically inadmissible, but that courts retain a discretion to exclude such evidence. In exercising this discretion, the Court must weigh the public interest in the conviction of those guilty of crime against the public interest in the due administration of justice and the protection of individual rights. Applying these principles, the Court found that the admission of the unlawfully obtained text messages was unfair to the appellant and that the conviction should be quashed.

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

Orders