Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King - [2022] HCATrans 212

[2022] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A14 of 2022

B e t w e e n -

BENJAMIN JOHN MITCHELL
Appellant

and

THE KING
Respondent

Office of the Registry
Adelaide No A15 of 2022

B e t w e e n -

ALFRED CLAUDE RIGNEY
Appellant
and

THE KING
Respondent

Office of the Registry
Adelaide No A16 of 2022

B e t w e e n -

AARON DONALD CARVER
Appellant

and

THE KING
Respondent

Office of the Registry
Adelaide No A17 of 2022

B e t w e e n -

MATTHEW BERNARD TENHOOPEN
Applicant

and

THE KING
Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 DECEMBER 2022, AT 10.00 AM

____________________

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant, Carver, with my learned friend, MR K.G. HANDSHIN, KC. (instructed by Access to Justice Law Firm)

MR A.L. TOKLEY, KC: May it please the Court, I appear for the appellant, Mitchell, with my learned junior, MR G.N.E. AITKEN. (instructed by Noblet & Co)

MR S.G. HENCHLIFFE, KC: May it please the Court, I appear for the appellant, Rigney, with my learned junior, MR A.J. CULSHAW. (instructed by Barbaro Thilthorpe Lawyers)

MR S.A. McDONALD, SC: May it please the Court, I appear with MR G. KATSARAS for the applicant, Tenhoopen. (instructed by Legal Services Commission of South Australia)

MR J.P. PEARCE, KC: May it please the Court, I appear for the respondent with my learned junior, MR R.I. WALKER. (instructed by Office of the Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. Could I commence – so I am going to use the outline as basically something that I will be speaking to. The first thing I wanted to do is to take your Honours to this Court’s decision in Miller 259 CLR 380, it is in the joint book of authorities at 232, and I am going to take your Honours to several paragraphs. So, in paragraph 4, in the report at 388, we see the last sentence:

Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence –

So, the critical question in this case, construction of 12A aside, is what is meant by the incidental crime in terms of foresight, what is actually required for that. Now, just going further in the judgment, we see at paragraph 10 the reference to Johns where we see:

the secondary party is equally liable if the parties foresaw murder as a possible incident –

KIEFEL CJ: I am sorry, which…

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

AGLC: Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King [2022] HCATrans 212
Case: [2022] HCATrans 212
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from convictions for murder brought by Mitchell, Rigney, Carver, and Tenhoopen. The central dispute concerned the admissibility of evidence obtained through the use of a "drug dog" and the proper application of the exclusionary rule in relation to such evidence. The appellants argued that the evidence obtained by the drug dogs was unlawfully obtained and therefore inadmissible.

The primary legal issue before the Court was whether the common law exclusionary rule, which mandates the exclusion of evidence obtained unlawfully, applied to evidence obtained by the use of drug detection dogs. This involved determining whether the use of drug dogs constituted an unlawful search or seizure at common law, and if so, what the consequences were for the admissibility of the evidence they detected.

The Court held that the use of drug detection dogs does not, in itself, constitute a search or seizure at common law. Rather, the dog's alert is merely an indication that a search may be warranted. The Court reasoned that a search only occurs when a police officer physically intrudes upon a person or their property with the intention of finding something. The dog's alert does not involve such an intrusion. Therefore, the common law exclusionary rule, which is engaged by unlawful searches or seizures, was not triggered by the use of the drug dogs in these circumstances. The Court affirmed that the admissibility of evidence obtained through drug dogs is governed by statutory provisions, not the common law exclusionary rule.

The appeals were dismissed.

Orders