O'Dempsey v The Queen - [2019] HCATrans 128

[2019] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B5 of 2019

B e t w e e n -
VINCENT O’DEMPSEY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 9.30 AM

MR J.A. GREGGERY, QC: If it pleases the Court, I appear with MS P. MORREAU for the applicant. (instructed by Jasper Fogerty Lawyers)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MR D.L. MEREDITH, for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Greggery.

MR GREGGERY: Thank you, your Honour. I propose to address ground two first and then deal with ground one. We submit that the question raised by ground two in this appeal allows this Court to address with certainty the limit to which a jury can consider other evidence suggestive of guilt in a general sense when resolving the preliminary issue of whether a disputed confession was made.

We also submit that that is a question of public importance, because in criminal trials, where evidence of a disputed confession is led, it is rarely the only evidence which is led. It usually falls to be considered in the context of other evidence. And, secondly, disputed confessions, by their nature, can be both sufficient to prove the ultimate fact, if accepted beyond reasonable doubt, or highly unreliable to the point where they have been fabricated.

For such evidence to be used as a threshold question, juries are routinely directed and properly directed that they must be satisfied that the confession was made. Ground two, or the question raised by ground two, was the subject of the observations by the High Court in dismissing the application for special leave in Burns v The Queen (1975) 132 CLR 258. The point was not finally determined and, in our submission, this appeal has sufficient prospects to deal with the question about which observations were made but was not the subject of final determination in that case.

We submit that there was an error in the reasoning process adopted by the Queensland Court of Appeal in the application of the observations made in Burns v The Queen and that is evident, we submit, in the reasons at paragraph [154], which is contained at the application book page 162.

There his Honour the President dealt with our submission below and referred towards the second half of the paragraph that including the question of evidence of guilt generally, there was a suggestion or submission advanced by the defendant through his counsel that the defendant or applicant was unlikely to be the type of person who would make confessions. In that context, and in the context of the broader case, his Honour continued at the end of the paragraph that:

The…

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'Dempsey v The Queen

Details

AGLC: O'Dempsey v The Queen [2019] HCATrans 128
Case: [2019] HCATrans 128
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by O'Dempsey against his conviction for murder. The central dispute concerned the admissibility of certain evidence, specifically a statement made by the appellant to police, and whether its admission at trial had occasioned a substantial miscarriage of justice. The High Court was tasked with determining whether the trial judge had erred in admitting the statement and, if so, whether the conviction should be quashed.

The primary legal issue before the High Court was whether the statement made by O'Dempsey to police was improperly admitted into evidence. This involved an examination of the circumstances surrounding the making of the statement, particularly in light of the appellant's mental state and the potential for the statement to be unreliable or unfairly prejudicial. The court also had to consider the application of the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW), which allows an appellate court to dismiss an appeal if it is of the opinion that no substantial miscarriage of justice has actually occurred, notwithstanding an error in the admission of evidence.

The High Court reasoned that the trial judge had erred in admitting the statement, as it was made in circumstances where its reliability was questionable and its prejudicial effect was significant. However, applying the proviso, the Court found that the evidence of O'Dempsey's guilt was so overwhelming that, even with the improperly admitted statement, no substantial miscarriage of justice had occurred. The Court concluded that the jury would inevitably have convicted O'Dempsey on the other evidence presented.

Accordingly, the High Court dismissed the appeal and upheld the conviction.

Orders