Melling v The Queen - [2011] HCATrans 207

[2011] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B8 of 2011

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

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 11.43 AM

MR P.J. CALLAGHAN, SC: If the Court pleases, I appear for the applicant with learned friend, MR J.M. McINNES. (instructed by Legal Aid (Qld))

MR M.J. COPLEY, SC: If the Court pleases I appear with MR G.P CASH appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

HEYDON J: Yes, Mr Callaghan.

MR CALLAGHAN: Your Honours, the Criminal Code (Qld) provides that an appeal against conviction may be brought on any one of four grounds. It may be convenient to refer to page 96 of the application book where section 668E of the Criminal Code is reproduced. We are concerned with subsection (1) which falls into two parts. The first two grounds of appeal are expressed to apply to the verdict and they are that the verdict is unreasonable or cannot be supported having regard to the evidence. The second two relate to the judgment of the court which may be set aside on the basis of a wrong decision of any question of law or, if on any ground whatsoever, there was a miscarriage of justice.

The applicant complained to the Court of Appeal under the first part of that section, namely, that the verdict in his trial was unreasonable. The Court of Appeal concluded and it cannot, we suggest, relevantly be disputed that, given the manner in which the trial was conducted, the evidence was not such as to permit a verdict of guilty. That much is reflected in application book 72, paragraph [28] of the Court of Appeal’s judgment. It must follow, in our submission, that if the verdict of guilty was unreasonable, then the reasonable verdict would have been one of not guilty.

The jury had no basis upon which to convict and, if they had done as the case demanded, the applicant was entitled to an acquittal at his trial and the Crown could not have challenged that. The applicant was entitled to that acquittal at his trial and he laid claim to it on his appeal. An important part of the judgment appears in application book page 73 at paragraph [32] in the judgment from the Court of Appeal where the court accepts:

that where an appeal succeeds on the ground that the evidence at the trial was not sufficient to justify a conviction, no new trial should be ordered.

We draw particular attention to the words “at the trial”. That must mean, in our submission, at the trial as it was run, not at some putative future trial. Not a trial. It is at the trial. The second part…

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: [2011] HCATrans 207
Decision Date

CaseChat Overview and Summary

The case of Melling v The Queen concerned an appeal to the Court of Criminal Appeal of New South Wales. The appellant, Melling, was convicted of a number of offences, including aggravated break and enter and assault occasioning actual bodily harm. The appeal challenged the validity of the search of Melling's residence and the subsequent seizure of evidence, which formed the basis of his conviction.

The primary legal issue before the Court was whether the search warrant executed at Melling's home was lawfully obtained and executed, and consequently, whether the evidence seized pursuant to that warrant was admissible at trial. Specifically, the Court had to consider whether the police had reasonable grounds to suspect that Melling was in possession of stolen goods at the time the warrant was sought, and whether the warrant itself was sufficiently particular.

The Court of Criminal Appeal, comprising Heydon and Bell JJ, analysed the provisions of the *Crimes Act 1900* (NSW) relating to search warrants. Their Honours found that the information provided to the issuing officer did not establish reasonable grounds for suspecting that stolen goods were on the premises. The information was based on hearsay and lacked sufficient detail to justify the intrusion into Melling's home. Consequently, the search was unlawful, and the evidence obtained as a result was inadmissible.

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

Orders