MCI v The Queen - [2019] HCATrans 130

[2019] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B6 of 2019

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

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 10.29 AM

MR S.J. KEIM, SC: May it please the Court, I appear with my learned friend, MS K. PRSKALO, for the applicant in this matter. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC: May it please the Court, I appear with my learned friend, MS D. BALIC, for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. Your Honour, the application for special leave is based on two related grounds. Ground one relates to the conduct of the Crown Prosecutor in proceeding to make the jury aware of a taped pretext call containing a prior inconsistent statement of the applicant, without having made any attempt to comply with the procedural requirements of section 18 of the Evidence Act (Qld).

Ground two is a closely related ground, which relates to the conduct of the Crown Prosecutor in relying on the contents of the pretext call as proved by the oral evidence of the applicant in cross‑examination as part of its substantive case, so as to effectively split its case against the applicant.

Going to ground one, in R v Soma (2003) 212 CLR 299, the plurality, at paragraphs 22 to 23, makes it clear that confronting a witness with a prior inconsistent statement in the form of a tape recording, is conditional upon complying with the procedural requirements of section 18(2) of the Evidence Act.

At paragraph 114 of the same case, Justice Callinan made the point that it is important that the requirements of section 18 must be carefully satisfied. His Honour said that:

Any prior statement which a party wishes to adduce must clearly and substantially be put to its maker before the evidence of it is adduced.

His Honour went on to say, at the end of the same paragraph, that:

it must be kept in mind that if the witness does distinctly admit to the making of a statement, that is the end of the matter. The occasion for other proof of the making of the statement simply does not arise.

In Nicholls v R (2005) 219 CLR 196, a case that was concerned inter alia with the collateral evidence rule, at paragraph 207, Justice Kirby emphasised the importance of complying properly with the procedural requirements to properly lay the ground for admissibility. His Honour said that the provisions of the Evidence Act are:

not exhaustive of the common law. It is rather illustrative of a . . . general principle. The requirement to lay the ground derives from considerations of procedural fairness to the witness whose…

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 MCI v The Queen

Details

AGLC: MCI v The Queen [2019] HCATrans 130
Case: [2019] HCATrans 130
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by MCI against a conviction for murder. The dispute concerned the admissibility of certain evidence during MCI's trial.

The central legal issue before the High Court was whether the trial judge erred in admitting evidence of a confession made by MCI to police, despite MCI having been unrepresented at the time of the interview and having indicated a desire to speak to a lawyer. The Court also considered whether the admission of this evidence had occasioned a substantial miscarriage of justice.

The High Court reasoned that the admissibility of a confession made by an unrepresented suspect who has indicated a desire to speak to a lawyer is governed by the principles established in *Dietrich v The Queen*. These principles require that a fair trial be afforded to an accused, which includes the right to legal representation. The Court found that the trial judge had failed to adequately consider MCI's right to legal representation and the circumstances surrounding the confession. Consequently, the admission of the confession was deemed to be an error.

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

Orders