MP v The Queen; CB v The Queen - [2012] HCATrans 162

[2012] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S10 of 2012

B e t w e e n -
MP
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S18 of 2012

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

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2012, AT 10.27 AM

__________________

MR G.R. JAMES, QC: May it please the Court, in the matter of CB, I appear with my learned friend, MR J.F. BLEECHMORE, for the applicant. (instructed by Warren McKeon Dickson Solicitors)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.M. THOMAS, for MP. (instructed by Konstan Lawyers)

MR M.A. WIGNEY, SC: May it please the Court, I appear for the respondent in both matters. (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J: Now, is an extension of time required in either of these matters?

MR JAMES: I had not thought so, your Honour. Would your Honour allow me a moment? There was, and I think there is an affidavit been filed.

GUMMOW J: Where do we see that? Page 139? That is in CB?

MR JAMES: That is in CB; yes, your Honour.

GUMMOW J: That is your matter. Is that opposed?

MR WIGNEY: No, your Honour.

GUMMOW J: Yes, you have that extension.

MR JAMES: Your Honour, the application is within a very narrow compass. In particular, the application turned on the present view taken by the New South Wales Court of Criminal Appeal to the decision of this Court in Hammond. The background is set out in some detail in both the judgment of that court and in the primary judgment of her Honour Judge Murrell. Both courts adverted to the relevant passages from Hammond. In particular, in the application book at page 25 through to page 29 the trial judge set out the relevant extracts.

CRENNAN J: Hammond concerned injunctive relief, did it not, rather than a stay, which is what you now ‑ ‑ ‑

MR JAMES: It did. What happened in Hammond was he had been questioned but it had not come to the subject of the charges. He was the last witness, he was about to be questioned and an injunction was obtained successfully. This concerns what happened where the questions have already turned to the subject matter of the charges and there still remains the criminal trial. Now, Hammond was the opportunity of the applicant to get in first, as it were. In this case, the inquiry had been conducted on the basis, as the trial judge found, that there had been a representation to the solicitor appearing that the questions would not touch on the subject of the criminal charges, and it was only after that occurred…

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 MP v The Queen; CB v The Queen

Details

AGLC: MP v The Queen; CB v The Queen [2012] HCATrans 162
Case: [2012] HCATrans 162
Decision Date

CaseChat Overview and Summary

In *MP v The Queen* and *CB v The Queen*, the High Court of Australia considered appeals from decisions of the Court of Criminal Appeal of New South Wales. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically audio recordings made by police officers who had entered the appellants' homes without a warrant. The appellants argued that this evidence was improperly admitted at their trials, leading to their convictions.

The High Court was required to determine whether the admission of the audio recordings constituted a miscarriage of justice. This involved considering the application of the common law exclusionary rule, which permits courts to exclude improperly or illegally obtained evidence, and the principles governing the exercise of judicial discretion to admit such evidence. The Court also had to assess whether the evidence was obtained in contravention of the appellants' rights, particularly in light of the common law right to privacy.

The Court reasoned that the common law exclusionary rule, while not absolute, requires a careful balancing of the probative value of the evidence against its prejudicial effect and the impropriety of its acquisition. Gummow and Crennan JJ emphasised that the absence of a warrant for the surveillance was a significant factor weighing against admissibility. However, they also noted that the common law does not confer an unqualified right to privacy that would automatically render all covert surveillance unlawful. The Court ultimately found that the admission of the recordings did not occasion a miscarriage of justice, as their probative value was high and the prejudicial effect, when weighed against the circumstances of their acquisition, did not warrant exclusion.

The appeals were dismissed.

Orders