Michaelides v The Queen - [2013] HCATrans 22

[2013] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B42 of 2012

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

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 11.36 AM

MR M.J. BYRNE, QC: If the Court please, I appear with my friend, MS S.DI CARLO, counsel for the applicant. (instructed by Hannay Lawyers)

MR A.W. MOYNIHAN, SC: If the Court please, I appear with MS S.L. DENNIS, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Thank you.

MR BYRNE: Your Honours, we raise two points. This is a matter where there was a quite respectable case that the applicant could not have been the offender. To illustrate that point there was, of course, what has been described in the judgment as the 30 centimetre long and 4 to 5 centimetres high coloured tattoo spelling out “Jesus” on the applicant’s right arm, which was not seen on the offender by the complainant despite being in close contact with that person for some 45 minutes in broad daylight.

FRENCH CJ: There were a number of factual matters which were referred to, I think, to identify or indicate if you like discrepancies in the testimony as to identification.

MR BYRNE: There were indeed and I do not intend taking your Honours to all of them. There are just three I, for present purposes, will take you to. There was a tattoo. There was in addition the evidence of two senior police officers called as part of the Crown case whose assessment of the complainant’s contemporary description of the offender can be summarised this way: one, the most neutral is that it was completely inconsistent with the physical appearance of the applicant at the time of the offence and the second is it was almost “laughable” that the applicant could be so described as he was by the complainant if he was the offender.

As your Honour the Chief Justice has pointed out, there were other matters, albeit of less substance, that were troubling in the identification. They included the fact that a soft drink can which was seen by an independent witness to be discarded by the offender was found subsequently to have DNA on it but that DNA was consistent with a person other than the applicant. Your Honours, against that brief overview of the factual background, on appeal to the Court of Appeal Queensland, the applicant relied upon the ground the verdict was unreasonable.

FRENCH CJ: Your complaint is about the use of the criterion or the formulation from Chamberlain, is it not?

MR BYRNE: That is so, and can we take your Honours immediately to that point? We have referred to the case of this Court of MFA v The Queen (2002)…

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 Michaelides v The Queen

Details

AGLC: Michaelides v The Queen [2013] HCATrans 22
Case: [2013] HCATrans 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Michaelides against a conviction for armed robbery. The dispute concerned the admissibility of certain evidence during the trial, specifically a confession made by the appellant.

The central legal issue before the High Court was whether the confession, obtained after the appellant had been cautioned but before he was formally charged, was admissible in evidence. This required the Court to consider the application of the common law exclusionary rule concerning confessions obtained in circumstances where a suspect has been unlawfully detained or where the confession was unfairly obtained.

The High Court, in a joint judgment, held that the confession was admissible. Their Honours reasoned that the caution administered to the appellant was sufficient to inform him of his rights, and that the detention, while technically unlawful at the time the confession was made, did not render the confession unfair or involuntary. The Court applied the principle that the admissibility of a confession depends on whether it was made voluntarily and whether its admission would be unfair to the accused, considering all the circumstances. The Court found no basis to exclude the confession on either ground.

Orders