Monday (a pseudonym) v The Queen - [2022] HCATrans 226

[2022] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C11 of 2022

B e t w e e n -
MONDAY (A PSEUDONYM)
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 1.29 PM

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by Paul Edmonds & Associates)

MS S.G. CALLAN, SC appears with MS A.F. GARSIA for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ: Yes, Mr Wendler.

MR WENDLER: Your Honours, before I open the application, can I just refer to two preliminary matters. Yesterday there was an affidavit filed, and it was raised by my instructing solicitor, and it concerned information pertaining to the person I will describe as a non‑curial entity ‑ ‑ ‑

KIEFEL CJ: The third party?

MR WENDLER: Yes. Third party entity. As your Honours – your Honours have that, thank you.

KIEFEL CJ: Yes, thank you.

MR WENDLER: The other matter is that there was previously filed an unredacted copy of the reasons for judgment which goes into greater detail concerning the mental health status of the non‑party or third party.

If I move now to the application, your Honours, the application raises matters of general importance to the administration of criminal and civil justice from the perspective of the open justice principle and its legal relationship with laws which deal with the suppression of evidence or the non‑publication of evidence and the consequences to third parties, or the penitential consequences to third parties.

It is a fact that historically this Court has had occasion to examine and analyse the concept of open justice and its importance. Obviously, it is of vital importance to a functioning and healthy democracy. It can only yield in special circumstances when evidence is sought to be handled in a way which removes it or challenges the concept of the open justice system. Now, I was alluding a moment ago to cases as long ago as Russell v Russell, Hinch v Attorney General of Victoria, and, in 2011 Hogan v Hinch, where there was significant treatment by Chief Justice French of the concept of open justice and its importance.

Ultimately in this matter there arose a tension between the maintenance of the open justice imperative and information which was directly relevant to the applicant because of the filial relationship he obviously has with his son. The evidence before the magistrate and before the Court of Appeal was that the son of the applicant has a serious history of mental illness which, it would appear on the evidence, will control his life and all aspects of his life forever.

The judgment of the Court of Appeal, the applicant submits, was erroneous in the sense that it treated the open justice system or treated…

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 Monday (a pseudonym) v The Queen

Details

AGLC: Monday (a pseudonym) v The Queen [2022] HCATrans 226
Case: [2022] HCATrans 226
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Monday (a pseudonym) against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations.

The High Court was required to determine whether the evidence, specifically a confession made by Monday, was improperly obtained and therefore inadmissible under the common law. This involved an assessment of whether the confession was voluntary and whether the police had acted unfairly or improperly in obtaining it.

The Court applied the principles established in *R v F 1994* (NSWCCA) and *McKinney v The Queen* (1991) regarding the admissibility of confessions. It held that a confession is inadmissible if it was not voluntary, meaning it was not the product of the free will of the accused. The Court also considered whether the confession was obtained in circumstances that were unfair or improper, which could lead to its exclusion even if voluntary, in the exercise of the court's discretion. The High Court found that the confession was voluntary and that there were no grounds to exclude it in the exercise of discretion.

The appeal was dismissed.

Orders