Orreal v The Queen - [2021] HCATrans 193

[2021] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2021

B e t w e e n -
MALCOLM LAURENCE ORREAL
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
KEANE J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY

ON THURSDAY, 11 NOVEMBER 2021, AT 9.46 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.J. KEIM, SC appears with MR P.F. RICHARDS for the appellant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC appears with MR C.W. WALLIS for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. Your Honours, the raw materials for your consideration of this appeal are relatively easily accessed. The evidence which is wrongly admitted is identified as summarised by Justice McMurdo. We have identified that in our outline of oral submissions at footnote 4, but we would seek to take your Honours to the core appeal book commencing at page 77 and we would ask your Honours to read, for completeness, in terms of understanding the evidence involved, the first six paragraphs of his Honour Justice McMurdo’s reasons, which go over to page 78.

KIEFEL CJ: Mr Keim, I think you can you can take it that we have read them.

MR KEIM: Thank you, your Honour. Each of the appellate judges agreed that the evidence was inadmissible and should not have been received. That can be seen in Justice McMurdo’s reasons, at paragraph [7] at page 78 of the core appeal book, Justice Mullins’ reasons at paragraph [19] at page 80, and Justice Bond’s reasons at paragraph [90], which is over on page 97 of the core appeal book.

The compounding factors comprise of the manner in which the learned judge and the Crown Prosecutor dealt with the evidence. The Crown Prosecutor, one might say, started off cold and then blew very hot before cooling again. This is presented by his Honour Justice McMurdo at paragraph [8] at page 78 of the core appeal book. His Honour sets out the prosecutor’s – relevant parts of the prosecutor’s address at paragraph [8].

KIEFEL CJ: Mr Keim, before we go on to look at how the Crown Prosecutor’s address and the trial judge’s failure to direct did not correct the error – the error in question was the admission of the evidence, was it not?

MR KEIM: Yes, your Honour.

KIEFEL CJ: The evidence was admitted as a result of discussions between defence counsel and the prosecution.

MR KEIM: It was, your Honour, yes.

KIEFEL CJ: As Justice Bond points out, and it is tolerably clear by inference, that discussion would have been because the defence saw a forensic advantage in having the HSV-1 evidence admitted.

MR KEIM: The Court of Appeal made that…

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: [2021] HCATrans 193
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Orreal against a conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police.

The High Court was required to determine whether the recording, made in circumstances where the appellant was unaware he was being recorded, constituted a breach of the *Surveillance Devices Act 2004* (Cth) and, if so, whether the evidence derived from that recording should have been excluded under s 138 of the *Evidence Act 1995* (NSW). The Court also considered the application of the common law exclusionary rule.

The Court reasoned that the recording was made in contravention of the *Surveillance Devices Act 2004* (Cth) as it was a listening device recording made without a warrant or lawful excuse. However, the Court held that the admission of the evidence did not necessarily require exclusion under s 138 of the *Evidence Act 1995* (NSW). The Court applied a balancing exercise, weighing the public interest in the admission of relevant evidence against the public interest in the protection of privacy and the discouragement of unlawful conduct. The Court found that the probative value of the evidence was high and that the contravention, while serious, did not outweigh the public interest in ensuring that criminal conduct was properly investigated and prosecuted. The common law exclusionary rule was also considered and found not to mandate exclusion in these circumstances.

The appeal was dismissed.

Orders