McNamara v The King - [2023] HCATrans 61

[2023] HCATrans 061
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S143 of 2022
B e t w e e n -
GLEN PATRICK McNAMARA
Appellant
and
THE KING
Respondent

GAGELER ACJ
GORDON J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 16 MAY 2023, AT 10.00 AM
Copyright in the High Court of Australia
MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the appellant with my learned friends MR G.D. WENDLER and MR D.A. WARD. (instructed by Kings Law Group)
MS S.C. DOWLING, SC: Your Honours, I appear for the respondent with my learned friends MR E. BALODIS and MS A.L. BONNOR. (instructed by Director of Public Prosecutions (NSW))
GAGELER ACJ: Thank you, Ms Dowling. Mr Reynolds.
MR REYNOLDS: Your Honours, at our outline – and I am going to stick fairly closely to the order of it – your Honours will see that I start paragraph 2 with a summary as to what the courts below held. I will come to that in a moment. The way the courts below applied this discretion was very different from the way your Honours are normally used to seeing that discretion applied. In more than 999 cases out of 1,000 the discretion is applied to reject evidence adduced by the prosecution as against the defendant, that is, if the discretion is applied.
Now here, we have what is, on the case law, a most unusual situation where you have evidence adduced in a joint trial by one defendant, the other defendant objects to that evidence and says that the probative value of this evidence in D1’s case – I will call them D1 and D2, if that is convenient – the probative value of this evidence in D1’s case is outweighed by the prejudicial effect on D2. The result of all of this, when the discretion was exercised, was that this evidence was totally excluded from the trial. It was not excluded only, for example, as against D2. Now ‑ ‑ ‑

GAGELER ACJ:   And you say it could have been excluded against D2 under section 136, is that the way you put it?
MR REYNOLDS:   Or under 135, more, perhaps, relevantly to the argument that I am ‑ ‑ ‑
GORDON J:   But that argument is that 135 does not apply on your first ground. Your argument is that 135, it does not apply in this circumstance.
MR REYNOLDS:   Exactly.
GORDON J:   And then, the second bit is 136 – is the subject of direction in 136 as to use – are they separate?
GAGELER ACJ:   The question is, how would it be excluded against D2?
MR REYNOLDS:   Well, I am dealing at the moment with section 135.
GAGELER ACJ:   My question arose directly out of the way you were putting your submission.
MR REYNOLDS:   We perhaps, put it this way – what we say should have happened here, when…

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 McNamara v The King

Details

AGLC: McNamara v The King [2023] HCATrans 61
Case: [2023] HCATrans 61
Decision Date

CaseChat Overview and Summary

McNamara appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant, which the appellant argued was obtained in contravention of his rights. The High Court was required to determine whether the admission of this evidence at trial was lawful, particularly in light of the circumstances under which it was obtained.

The primary legal issue before the High Court was whether the admission of the covertly recorded evidence was an error of law that necessitated quashing the conviction. This involved considering the application of the common law exclusionary rule, which generally permits the admission of relevant evidence even if obtained improperly, against any potential residual discretion to exclude such evidence in exceptional circumstances. The Court also had to consider the scope and application of the implied constitutional right to be tried according to law.

The High Court, by majority, held that the admission of the covertly recorded evidence was not an error of law. The majority reasoned that while the recording may have been obtained in circumstances that were not ideal, it did not fall within the narrow category of evidence that the common law requires to be excluded. They affirmed that the common law exclusionary rule is generally permissive, and that the implied constitutional right to be tried according to law does not operate to exclude relevant evidence simply because it was obtained improperly, unless its admission would fundamentally undermine the fairness of the trial process. The Court found that the admission of the evidence did not reach this threshold.

Orders