O'Brien v The Queen - [1994] HCATrans 61

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S180 of 1993

B e t w e e n -

WILLIAM FRANCIS O’BRIEN

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 9.30 AM

MR B.M.J. TOOMEY, QC: May it please Your Honour, I appear with my learned friend, MR A.J. BLACK for the applicant. (instructed by Diamond Peisah & Co)

MR P.C. BANNON, QC: If the Court pleases, I appear with my learned friend, MR J.P. BOOTH, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR TOOMEY: Your Honours, before I begin, can I apologise for the lateness of our submissions. I say just two things: I was on holiday when we were notified that the matter was in on 13 September and when I came back, my junior went on holiday and I very much regret that it just got out of hand. I do apologise, Your Honours. I know how it increases your workload when they come in late and I am truly sorry.

BRENNAN J: They have been read.

MR TOOMEY: Your Honours, can I just say something about the context in which we mount this application. This was a case of incest where the first act complained of occurred 16 years before complaint was made, that is when the complainant was the age of about eight, and the last act was committed about nine years before complaint, that is when the complainant was 14. The applicant at all times denied any improper dealing with his daughter at all. Accordingly, the credit of the complainant was central to the case - and, I might say, a case advanced on oath; not by an unsworn statement. Since the applicant’s case was that these events had not occurred, nor had anything like these events occurred, then the central issue in the trial was whether the complainant was to be believed or was not to be believed.

There was, it is submitted, unquestionably prejudice of a high degree caused to the applicant by the lateness of the complaint. Accordingly, the reasons for the lateness of the complaint were of considerable importance and the fact of the prejudice alone, in accordance with what this Court said in Longman’s case, 168 CLR, had to be considered. His Honour set out as the facts in the case that which was deposed to by the complainant in her evidence in‑chief. There had been a committal and a first trial which aborted because some inadmissible material was adduced, and that being a jury trial, the learned trial judge discharged the jury.

Can I take Your Honours to Longman and the passages on which we rely are to be found at 168 CLR 91 by Your Honours Justice Brennan and Justice Dawson with Justice Toohey where Your Honours said…

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 O'Brien v The Queen

Details

AGLC: O'Brien v The Queen [1994] HCATrans 61
Case: [1994] HCATrans 61
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by O'Brien against his conviction for armed robbery. The dispute centred on the admissibility of certain evidence obtained during police investigations.

The primary legal issue before the Court was whether the evidence, specifically a confession made by O'Brien, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from the trial. This involved an examination of the circumstances surrounding the confession and the application of the exclusionary rule for improperly obtained evidence.

The Court reasoned that the confession was obtained in circumstances where O'Brien had not been cautioned as required by law, and that the police had failed to bring him before a magistrate with due diligence. Applying the principles established in *Bunning v Cross*, the Court weighed the public interest in admitting relevant evidence against the public interest in deterring unlawful conduct by law enforcement. Ultimately, the Court found that the impropriety in the obtaining of the confession was significant and outweighed the probative value of the evidence. The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders