Nicholson v Avon

[1990] HCATrans 210

_M -:.1, AUSTRALIA,1J.!,--~~)'~~._._

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml of 1990

B e t w e e n -

KYM DONNA NICHOLSON

Applicant

and

DERMOT PATRICK AVON

Respondent

Application for special

leave to appeal

DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Nicholson 1 7/9/90

AT MELBOURNE ON FRIDAY, 7 SEPTEMBER 1990, AT 4.50 PM

Copyright in the High Court of Australia

MR T. DANOS: If the Court pleases, I appear on behalf of

the applicant. (instructed by James T. Stevens)

MR H.C. BERKELEY, QC, Solicitor-General for the State of

Victoria: If the Court pleases, I appear with my

learned friend, MR B. DENNIS, for the respondent.

(instructed by the Victorian Government Solicitor)

DAWSON J:  Mr Danos.

MR DANOS: This is an application for special leave arising

from an order to review heard by His Honour

Mr Justice Marks.

DAWSON J:  We are familiar with the circumstances, Mr Danos,

but in this particular case the magistrate in the exercise of his discretion admitted the admission

by your client of the name and address and what

more is there to be said about it? That is enough

to determine the case, is it not?

MR DANOS:  That is enough to determine the question of

evidence, yes, Your Honour. The question that

His Honour never turned his mind to was the

question of the unlawfulness of the entry of the

police officers.

DAWSON J:  Even assuming that it was unlawful for the

purposes of argument, that did not make the
evidence necessarily inadmissible and the

magistrate admitted it. It was not contended that

the admission was not made voluntarily, was it?

MR DANOS:	No, Your Honour.
DAWSON J:	So either in the exercise of his discretion or in

the exercise of the discretion under Bunning

v Cross the evidence was admitted.

MR DANOS:  But the difficulty, Your Honour, with that is

that not only was the entry unlawful, there was the

question of - - -

DAWSON J:  But that does not arise. We are assuming that

the entry was unlawful.

MR DANOS: There was the next question, of course, that

there was an arrest pursuant to an unlawful - - -

DAWSON J: Let us assume that as well.

MR DANOS:  Then, Your Honour, the real question is as to

whether or not you have a Bunning v Cross situation

which is conduct looked at objectively was such

that curial approval ought not to be given to that

sort of conduct.

Nicholson 2 7/9/90

DAWSON J: There is no real basis to suggest that in this

case, is there?

MR DANOS:  With respect, Your Honour, where there is the

combination of those factors giving rise to

admissions obtained as a result of unlawful entry

and a false imprisonment occasioned by an unlawful

arrest, then one has reached a point, in my

respectful submission, that a court ought not to be

seen to be giving curial approval to that sort of

conduct.

DAWSON J:  The point is that the magistrate could only have

exercised his discretion in one way, and that is

the point.

MR DANOS:  Yes, Your Honour.

DAWSON J: That is a simple point, is it not?

MR DANOS:  Yes, Your Honour. And His Honour

Mr Justice Marks, with respect, when he came to turn to it came to the proposition that there had

not been an unlawful entry - - -

DAWSON J: His Honour Mr Justice Marks dealt with a lot of

questions obiter dicta - or obiter, but that is all
very well; that might be very interesting, but the

point that you have now made is the point in the

case. It is as simple as that, is it not?

MR DANOS:  Yes, Your Honour, and it is on that basis that it

is said that there ought be special leave and that

ought to be argued, Your Honour, because it is

quite clear that His Honour Mr Justice Marks in the

course of his judgment on this aspect takes up what

His Honour Mr Justice Brooking said in Neville v

Halliday - - -

DAWSON J: All of those are really academic in the

circumstances I have put to you. If the question

was a question of the discretion of the magistrate, the other questions might be interesting but you	are prepared to assume the answer in your favour on	those questions, and then you come down to the real
question and that is the way in which the
discretion ought to have been exercised, whether
there was an error in the exercise of the discretion - in the manner in which the magistrate
did exercise it. That is the point.

MR DANOS:	Yes, Your Honour.
DAWSON J:	We need not trouble you, Mr Solicitor.
Nicholson	7/9/90

There is, in our view, no sufficient reason to

doubt the conclusion reached by His Honour

Mr Justice Marks and special leave will be refused.

MR BERKELEY: Although I did not sing for my supper,

Your Honour, may I ask for costs?

DAWSON J:	Mr Danos?
MR DANOS:	The only matter that I can say, Your Honour, is

that it is in the light of a criminal matter.	It
arises in a criminal prosecution. There were no

costs awarded in relation to the initial hearing in the magistrates court as a criminal prosecution and

that is the only matter that I can put.

DAWSON J: With costs.

AT 4.56 PM THE MATTER WAS ADJOURNED SINE DIE

Nicholson 7/9/90