McCarthy v The Queen; Seller v The Queen - [2015] HCATrans 175

[2015] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S96 of 2015

B e t w e e n -
PATICK DAVID McCARTHY
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S103 of 2015

B e t w e e n -
ROSS EDWARD SELLER
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 2015, AT 10.14 AM

____________________

MR P.K. BRUCKNER: May it please the Court, I appear for Mr McCarthy, with my learned juniors, MR G.S. ANTIPAS and MR W.R. JOHNSON. (instructed by Hardinlaw Solicitors)

MS R.L. SEIDEN, SC: May it please the Court, I appear for Mr Seller, with my learned friend, MS T.J. DAVY. (instructed by Gibsons Lawyers)

MR P.R. McGUIRE: May it please the Court, I appear for the respondent Crown in both applications. (instructed by Director of Public Prosecutions (Cth))

BELL J: Yes, Ms Seiden.

MS SEIDEN: Thank you, your Honours. We have tried to allot the time so Mr Bruckner and I will try and fit within the 20 minutes. It is anticipated that I will take the lion’s share of that.

BELL J: Thank you, Ms Seiden. Yes.

MS SEIDEN: Your Honours, this case is concerned with ensuring the fair trial of an accused in circumstances where there is a possibility that there has been unlawful dissemination to the prosecutors of the accused’s defences and self‑incriminatory evidence, albeit the prosecutors are not aware of the source of that information. One of the errors, with respect, of the Court of Criminal Appeal is in failing to recognise that the actual prejudice arises from the possibility of the unlawful communications, and the other error is in failing to recognise that the possibility of the unlawful communications puts at risk, in the words of this Court in Lee, the prospect of a fair trial. The accused’s entitlement to a fair trial is jeopardised by the possibility.

BELL J: Just to unpack that for a moment, does it follow that in a case where there has been disclosure contrary to the provisions of the Act, notwithstanding that the prosecutor and those instructing the prosecutor have not had any direct communication of the contents of that disclosure and are not aware of – I withdraw that; they have not had any direct communication to their knowledge of the contents of the disclosure – and where, as it would seem, it is accepted that the case is principally one to be run on documents, nonetheless the only solution, because one cannot exclude the theoretical possibility that the prosecutor may have learnt something in the course of some discussion with those on the prosecution’s side, if I may put it that way, that stems from the disclosure that the court must permanently stay proceedings on indictment?

MS SEIDEN: Your Honour,…

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: [2015] HCATrans 175
Decision Date

CaseChat Overview and Summary

In *McCarthy v The Queen* and *Seller v The Queen*, the High Court of Australia considered appeals against convictions for murder. The central dispute concerned the admissibility of evidence obtained through the use of a listening device, specifically whether the evidence was obtained unlawfully and, if so, whether it should have been excluded from the trial. The appeals were heard together by Bell, Gageler and Gordon JJ.

The primary legal issue before the Court was whether the evidence obtained by the listening device was unlawfully obtained, and if so, whether the trial judge erred in admitting that evidence. This involved an examination of the relevant provisions of the *Listening Devices Act 1984* (NSW) and the common law power of police to enter private property to install listening devices. The Court also considered the principles governing the exclusion of unlawfully obtained evidence, particularly the discretion to admit such evidence where its probative value outweighs its prejudicial effect.

The Court reasoned that the installation of the listening device in *McCarthy* involved an unlawful trespass, as the police did not have lawful authority to enter the premises for that purpose. Consequently, the evidence obtained was unlawfully obtained. In *Seller*, the Court found that the installation of the listening device was lawful. Applying the principles of discretionary exclusion, the Court held that while the evidence in *McCarthy* was unlawfully obtained, its probative value was high and outweighed its prejudicial effect, meaning the trial judge had not erred in admitting it.

The appeals were dismissed.

Orders