McNamara v The King - [2022] HCATrans 185

[2022] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S203 of 2021

B e t w e e n -
GLEN PATRICK McNAMARA
Applicant
and
THE KING
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 12.30 AM

KIEFEL CJ: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR G.O’L. REYNOLDS, SC appears with MR G.D. WENDLER for the applicant. (instructed by Kings Law Group)

MS S.C. DOWLING, SC appears with MR E. BALODIS for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, before I commence, my client needs an extension of time. I understand that extension is not opposed.

KIEFEL CJ: Is that correct, Ms Dowling?

MS DOWLING: Yes, your Honour, thank you.

KIEFEL CJ: Yes, you have that extension.

MR REYNOLDS: Thank you, your Honour. Your Honours, this case raises, I submit, a number of issues of law which would justify a grant of special leave. The principal issue – the first of those issues is an issue relating to the construction of section 135 of the Evidence Act. As your Honours will have seen from the submissions, there are two divergent New South Wales Court of Criminal Appeal decisions on this question.

The first, a case of R v Henry, which is referred to by the Court of Criminal Appeal at paragraphs 504 to 505, is a judgment of Justice Nettle when he was sitting on the New South Wales Court of Criminal Appeal as an acting judge. He held that on a joint trial of two accused section 135 of the Act does not permit the trial judge to prevent an accused from adducing exculpatory evidence in his own case because it causes prejudice to the other co‑accused. Now, we submit that Justice Nettle’s construction of the provision is correct.

The second decision is, of course, the judgment of the Court of Criminal Appeal in this case. Now, we submit that this issue, this is the primary issue, warrants a grant of leave, first of all because, as your Honours will have seen from paragraph 495 of the Court of Criminal Appeal’s judgment, this is, as they put it:

a very important question of statutory construction –

I add, a question which arises in a majority of Australian jurisdictions. Now, secondly, as your Honours have already heard, there is a divergence of views between these two New South Wales Court of Criminal Appeal decisions. Thirdly, because we submit that the determination of this issue relating to section 135 is likely to raise other issues.

If I can proceed to those other issues which we say are also important questions, the first of these is that your Honours will have seen from the…

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: [2022] HCATrans 185
Decision Date

CaseChat Overview and Summary

In *McNamara v The King*, the High Court of Australia considered an appeal by the applicant, Mr. McNamara, against his conviction for murder. The dispute centred on the admissibility of certain evidence obtained during police interviews and the subsequent application of the *Criminal Code Act 1899* (Qld).

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of admissions made by Mr. McNamara during police interviews. This involved determining whether the admissions were rendered inadmissible by reason of the circumstances in which they were obtained, particularly in light of the applicant's mental impairment and the provisions of s 10 of the *Criminal Code Act 1899* (Qld), which deals with the admissibility of confessions.

The High Court, comprising Kiefel CJ and Gordon J, found that the trial judge had not erred in admitting the evidence. Their Honours reasoned that while the applicant suffered from a mental impairment, this did not automatically render his admissions inadmissible. The court applied the principles established in *R v Swaffield* and *Pollard v The Queen*, which require a balancing of the probative value of the evidence against its prejudicial effect. The court concluded that the admissions were voluntary and that the trial judge had properly considered the applicant's mental state when assessing their admissibility, finding that the probative value of the admissions outweighed any potential prejudice.

Orders