Obian v The King - [2024] HCATrans 17

[2024] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M77 of 2023

B e t w e e n -
SAER OBIAN
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 MARCH 2024, AT 10.00 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends MR C.T. CARR, SC and MS H.L. CANHAM for the appellant. (instructed by Milides Lawyers)

MS E.H. RUDDLE, KC: May it please the Court, I appear with my learned friend MR G.L. BUCHHORN for the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER CJ: Thank you, Ms Ruddle. Mr Walker.

MR WALKER: Please the Court. Your Honours, in the fifth trial of these offences the Crown was permitted, as we would put it, to speak its case on a question which, for the reasons I am about to explain, were at the heart of the Crown case against our client. The first stage of the argument is to seek to persuade your Honours that the exercise of discretion by which that was permitted was wrong. It was permitted by reference to provisions of the Criminal Procedure Act to which I am going to turn immediately.

I note in passing that though we have observed in our written submissions that in the Court of Appeal – majority of reasons of Justice Macaulay – an error is made concerning the lack of any precursor provisions, that scarcely informs the proposition of error which turns upon the proper understanding of the extant provisions.

GORDON J: Is that to say any more than you are not limited to the two categories of document identified in the provision, and if you look more broadly you get a different result?

MR WALKER: That is very much the wrap-up of the first part of what I will call our interpretation argument, and I can ‑ ‑ ‑

GORDON J: I am sorry, I did not mean to cut through it, but ‑ ‑ ‑

MR WALKER: No. I am grateful to your Honour. May I try to wrap that part up now – you have read our arguments on it. The difference is between a view that says the “having regard to” provisions to which I am about to come should be understood as having regard exclusively to, and for the reasons we have argued, by far the preferable reading, given the setting in which the discretion is to be exercised and against the expectation of an attempt to achieve a fair trial, it is simply absurd to leave out of account, for example, something equally as formal as an alibi notice. But you should not pay regard to that, apparently. There are, as you have seen in the ‑ ‑ ‑

BEECH‑JONES J: Mr Walker, I think Justice Macaulay would say you would, on 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.

Keep reading for free

Create a free CaseChat account to read Obian v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] HCATrans 17
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Obian v The King*. The appellant, Obian, was convicted of a criminal offence. The central dispute concerned the admissibility of certain evidence during the trial.

The High Court was required to determine whether the trial judge erred in admitting evidence that was obtained in circumstances that may have contravened Obian's rights. Specifically, the Court considered whether the evidence was obtained in contravention of the *Australian Consumer Law* and, if so, whether it should have been excluded under the principles governing the admission of improperly or illegally obtained evidence.

The Court reasoned that the *Australian Consumer Law* does not create a statutory exclusionary rule for evidence obtained in contravention of its provisions. Instead, the admissibility of such evidence is governed by the common law exclusionary rule, which requires a balancing exercise. This exercise involves weighing the probative value of the evidence against its prejudicial effect, and considering whether the impropriety in obtaining the evidence was so serious as to warrant its exclusion. The Court found that the trial judge had properly conducted this balancing exercise and had not erred in admitting the evidence.

The appeal was dismissed.

Orders