Milne v The Queen - [2013] HCATrans 279

[2013] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No S127 of 2013
Sydney No S128 of 2013

B e t w e e n -
MICHAEL JOHN MILNE
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 10.23 AM

MR H.K. DHANJI, SC: May it please the Court, I appear for the applicant. (instructed by Michael Bowe)

MR T.A. GAME, SC: If the Court please, I appear with MR D. JORDON, SC for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes.

MR DHANJI: Your Honours, the applicant requires an extension of time.

FRENCH CJ: Is that opposed?

MR GAME: It is, but we would say that you should hear the argument on its merits and if the Court is inclined to dismiss it then there should be a refusal of an extension of time.

FRENCH CJ: That is a kind of Clayton’s response.

MR GAME: Well, your Honour, I am sorry. We say there has not been an adequate explanation.

HAYNE J: It was Tuesday that betting was occurring on every horse in the race, Mr Game.

MR GAME: I just said that to take up some of Mr Dhanji’s time, your Honours.

FRENCH CJ: You have the extension, Mr Dhanji.

MR DHANJI: Thank you, your Honour. To be fair to Mr Game he disclosed that that was the course he proposed to take. Your Honours, there were two questions raised by this application and if I can begin with the first of those questions, it concerns a question with respect to the definition of “instrument of crime” in section 400.1 of the Criminal Code. The applicant submits that this raises a question of some real importance. Your Honours will appreciate that on any reading of the provisions, that is, the definition of “instrument of crime” and the provisions that pick up that definition, there will be application of what are generally termed the money‑laundering provisions to a wide range of circumstances.

HAYNE J: Before we dive into the statute can I just understand the transaction better than I do?

MR DHANJI: Yes.

HAYNE J: The taxpayer owns shares. The taxpayer swaps share with an offshore entity. Swapped shares swapped out go into offshore entity. What then happens, offshore entity realises the shares?

MR DHANJI: No, can I go back a step?

HAYNE J: Yes.

MR DHANJI: The taxpayer owns shares. Shares are transferred to offshore entity, whilst within the offshore entity those shares are exchanged for other shares. The exchange for other shares ‑ ‑ ‑

HAYNE J: Within the offshore entity?

MR DHANJI: Within the offshore entity but that was for capital gains tax purposes a disposal of the shares. Effectively, they were sold and what was ‑ ‑ ‑

HAYNE J: Yes.

FRENCH CJ: That was the relevant disposition.

MR DHANJI:

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 Milne v The Queen

Details

AGLC: Milne v The Queen [2013] HCATrans 279
Case: [2013] HCATrans 279
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Milne against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from Mr. Milne's mobile phone, which had been seized by police.

The High Court was required to determine whether the evidence obtained from Mr. Milne's mobile phone was admissible, notwithstanding that the police had not obtained a warrant for its seizure and examination. This involved considering the scope of police powers to seize and examine electronic devices under relevant legislation and the common law.

The Court reasoned that the common law power to seize and retain property extended to things that might be evidence of a crime. However, this power was not unlimited and was subject to the requirement that the retention and examination of the property be for a purpose connected with the investigation of a crime. The Court held that the police had acted within their powers in seizing and examining the mobile phone, as it was reasonable to believe it contained evidence relevant to the investigation of the murder. The Court affirmed the principles governing the admissibility of evidence obtained in such circumstances, emphasizing the need for a proper evidentiary basis for the belief that the device contained relevant information.

The appeal was dismissed.

Orders