MR R.N. HOWIE, QC: If the Court pleases, I appear with my learned friend, MR P.G. BERMAN, for the respondent Crown. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J: Yes, Mr Game.

MR GAME: If the Court pleases, I hand up my outline of argument.

DAWSON J: You might just give us few moments to glance through that. Yes, Mr Game.

MR GAME: If the Court pleases. I propose to commence by taking the Court to the history of precisely what occurred after the plea was taken. Firstly, at page 3 of the appeal book - - -

DAWSON J: We have read the appeal book.

MR GAME: I will do it fairly briefly, but I will just take the Court through what took place because it is of some importance to identify precisely what stage of the proceedings it was that his Honour purported to reject the plea because, on my argument, a series of events had occurred which were of such consequence that it had gone beyond any question of rejecting the plea as such.

DAWSON J: Yes.

MR GAME: And those stages were that there had been an indictment for murder under section 19A, an acceptance of a plea under section 24 to manslaughter, the acceptance ‑ ‑ ‑

DAWSON J: Section 24 of the - - -?

MR GAME: Of the Crimes Act. Diminished responsibility is provided for by the ‑ ‑ ‑

TOOHEY J: Just before you leave section 24, Mr Game, what do you mean “acceptance of a plea”?

MR GAME: The Crown accepted, pursuant to section 394A of the Crimes Act, being the critical provision in this case, provides:

Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.

TOOHEY J: That suggests that chronologically the prisoner pleads and then the Crown elects to accept the plea. Is that the way in which it happens?

MR GAME: Yes. The charge was laid under section 19A of the Crimes Act for murder ‑ murder which is defined in section 18 ‑ and then section 23A is a…

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 Maxwell v The Queen

Details

AGLC: Maxwell v The Queen [1995] HCATrans 326
Case: [1995] HCATrans 326
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Maxwell against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, specifically statements made by him and items seized from his home, following his arrest. The appellant argued that this evidence should have been excluded by the trial judge on the grounds that it was obtained unlawfully.

The High Court was required to determine whether the arrest of the appellant was lawful, and if not, whether the evidence subsequently obtained should have been excluded under the principle that improperly or illegally obtained evidence may be excluded in the exercise of a judge's discretion. This involved an examination of the requirements for a lawful arrest under the relevant legislation and the principles governing the admission of evidence obtained in circumstances where those requirements may not have been met.

The Court reasoned that the arrest was unlawful because the police did not have reasonable grounds to suspect that the appellant had committed or was about to commit a serious indictable offence. Consequently, the subsequent search of his home and the statements he made were obtained in consequence of an unlawful arrest. Applying the principles established in *Bunning v Cross* and *R v Ireland*, the Court held that the trial judge erred in admitting the evidence. The unlawful nature of the arrest was a significant factor weighing against admission, and the prejudicial effect of the evidence was not outweighed by its probative value.

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

Orders