Norman v The Queen - [2013] HCATrans 142

[2013] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S333 of 2012

B e t w e e n -
CHRISTOPHER NORMAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 12.03 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MS K.J. EDWARDS. (instructed by Legal Aid NSW)

MR L.A. BABB, SC: I appear for the respondent, your Honour. (instructed by Director for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, this application has a number of grounds. We rely on them individually but also in combination. The point I am making there is that the fresh evidence has significance in itself in showing a miscarriage of justice, but also feeds into the application of the proviso and the question of the relevance of the earlier gang rape of the complainant.

Can I begin with the proviso? Your Honours would appreciate there was evidence of violent assaults by the applicant on the complainant that were admitted. Obviously they would have been prejudicial to the applicant. It showed that he was the sort of person who might rape his wife and the judge left them to the jury on a basis which could have allowed that reasoning by the jury and, indeed, we would say, may well have affected the verdicts in that they may have led the jury to remove any doubts that they otherwise held. Now, the Court of Criminal Appeal accepted that the evidence ‑ ‑ ‑

FRENCH CJ: These were two physical assaults. Is that right?

MR ODGERS: That is right. At page 73 of the application book, his Honour Justice Macfarlan at paragraph 22 referred to evidence that he had “slapped” her and “kicked her after she fell to the ground”, and also a separate incident where he had grabbed her by the hair, “dragged her into a bedroom and pushed his fingers into her throat” and I think there was also evidence that he had choked her to the point of unconsciousness. Our point is that they tended to show him in a rather bad light and, of course more importantly, would have suggested that he was a kind of person who might well do the kinds of things that the complainant alleged he did in respect of the offences charged.

Now, the Court of Criminal Appeal accepted that that evidence was wrongly admitted and applied the proviso. We challenge the basis upon which the proviso was applied. At page 78 of the application book, your Honours will see that in paragraph 38 Justice Macfarlan asked the question – apart from the Weiss question which we do not challenge here, he asked the separate question whether or not there was a significant possibility that the jury would…

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

Case: [2013] HCATrans 142
Decision Date

CaseChat Overview and Summary

Norman (the applicant) appealed to the High Court of Australia against his conviction for the offence of conspiracy to import a commercial quantity of a border controlled drug, namely cocaine. The applicant had been convicted in the Supreme Court of Victoria following a trial by jury. The central issue on appeal concerned the admissibility of certain evidence obtained by police surveillance.

The High Court was required to determine whether the evidence obtained through covert surveillance, specifically audio recordings made from a listening device, was admissible in circumstances where the applicant had not been arrested or charged at the time the surveillance commenced. The applicant argued that the surveillance was unlawful and therefore the evidence derived from it should have been excluded.

The Court considered the common law principles governing the admissibility of evidence obtained by police. It was held that the common law does not, in itself, prohibit the use of evidence obtained by covert surveillance, even if the person is not under arrest. The admissibility of such evidence is generally a matter for the trial judge's discretion, balancing the probative value of the evidence against any prejudice it might cause to the accused. In this instance, the Court found no error in the trial judge's decision to admit the evidence, as the surveillance was conducted under statutory authority and the evidence was relevant and highly probative of the conspiracy charge.

The appeal was dismissed.

Orders