Constitutional Law (Cth)—High Court—Appeal from State court exercising State jurisdiction—Power to admit fresh evidence—The Constitution (63 &64 Vict, c. 12), s. 73. Criminal Law—Appeal to High Court from State court exercising State jurisdiction—Power to admit fresh evidence. Criminal Law and Procedure (W.A.)—Petition for mercy—Reference of whole case to Court of Criminal Appeal—Reference to be determined as appeal from conviction—Duty of Court of Criminal Appeal—Power to exclude matters from consideration—Criminal Code (W.A.), s. 21(a).

Decisions

MASON C.J. Subject to the additional comments which appear below, I am in general agreement with the reasons for judgment of Toohey and Gaudron JJ. My comments relate, first, to the submission that this Court has power to receive fresh evidence in an appeal from a Court of Criminal Appeal; secondly, to the effect of the concession made in this Court by counsel for the respondent that pins were placed in the WABS cheque when it was photographed in Canberra by Dr Kobus and not before; thirdly, to Peter Mickelberg's contention, raised in this Court for the first time, that his convictions are unsafe and unsatisfactory; and, finally, to the test to be applied by an intermediate appellate court when deciding to set aside a conviction on the ground of fresh evidence.

2. The applicants sought to place before this Court additional evidence which was not before the Court of Criminal Appeal. Over the years this Court has consistently maintained that it has no power to receive fresh evidence in the exercise of its appellate jurisdiction. The applicants argued that the relevant decisions are wrong and should not be followed. Before turning to the argument, I should identify the nature of the additional evidence on which the applicants sought to rely.

3. The applicants sought to establish:
(1) That evidence given by police witnesses at the trial and
evidence given in the Court of Criminal Appeal (by way of correction of the evidence given at the trial) as to the date of the photographing of the fingerprint on the WABS cheque was wrong. Furthermore, the applicants seek to establish that evidence given by police witnesses at the trial and in the Court of Criminal Appeal that the print had disappeared when the cheque was returned by Dr Kobus from Canberra was wrong. (2) That the negatives tendered in evidence at the trial, purporting to be the original negatives of photographs of the fingerprint taken by Dr Kobus in Canberra, are not the original negatives but are copies which must have been made by the police after the originals had been sent by Dr Kobus from Canberra. According to the applicants, the originals are not in evidence. (3) That, following his conviction, Peter Mickelberg gave instructions to his counsel to appeal to the Court of Criminal Appeal against his conviction for conspiracy. (4) That the chassis…

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 Mickelberg v The Queen

Details

AGLC: Mickelberg v The Queen [1989] HCA 35
Case: [1989] HCA 35
Decision Date: 30 June 1989

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mickelberg, against his conviction for conspiracy to defraud. The applicant and his brothers were accused of defrauding the Western Australian government of $1.2 million by falsely claiming a gold mining subsidy. The central dispute revolved around the admissibility of certain evidence, specifically tape recordings of conversations between the applicant and his co-conspirators, which were alleged to have been obtained unlawfully.

The primary legal issue before the High Court was whether the tape recordings, obtained by police through covert surveillance, were admissible in evidence despite the potential illegality of their acquisition. This raised questions concerning the discretion of the trial judge to exclude evidence obtained improperly or in contravention of legal rights, and the principles governing the admission of such evidence in criminal proceedings. The court also had to consider whether the alleged illegality in obtaining the evidence was so significant as to warrant its exclusion.

The High Court, in a joint judgment, affirmed the principle that a trial judge possesses a discretion to exclude evidence obtained improperly or in contravention of a person's rights, even if it is relevant and otherwise admissible. However, the court held that this discretion should not be exercised lightly. In this instance, the court found that while the method of obtaining the recordings might have been questionable, it did not render the evidence unfairly prejudicial to the applicant or otherwise warrant its exclusion. The jury was properly instructed on the weight to be given to the evidence, and the trial judge had correctly exercised his discretion in admitting the recordings. The appeal was therefore dismissed.

Orders