Orreal v The Queen - [2021] HCATrans 71

[2021] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B58 of 2020

B e t w e e n -
MALCOLM LAURENCE ORREAL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 9.32 AM

MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior, MR P.F. RICHARDS. for the applicant in this matter. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC: I appear with my learned friend, MR C.W. WALLIS, for the respondent. (instructed by the Office of the Director of Public Prosecutions (QLD))

GAGELER J: Mr Heaton, you can stay on your feet.

MR HEATON: Your Honours, the issue in this case turns upon not an erroneous understanding of the applicable principles but what is said to be a misapplication of those well‑established principles to the particular circumstances of this case. The essential thrust of the argument of the applicant is that the effect of the evidence – the impugned evidence, was such as to have had a prejudicial effect. Essentially, the difference in the ‑ ‑ ‑

EDELMAN J: Mr Heaton, it was common ground, was it not, that – or at least is common ground now, that the evidence was irrelevant?

MR HEATON: Yes.

EDELMAN J: Why was not that irrelevant evidence, evidence that could have had a very significant effect upon the jury?

MR HEATON: Because of the nature of the evidence it was irrelevant because it was not probative of any issue in the trial. It was not inherently prejudicial in its effect. The prejudice, if there was any, was said to arise from the possibility of a link between the acquisition of the herpes virus by the complainant as a result of the sexual activity that she alleged occurred on this one occasion with the applicant, and it was in relation to that particular issue that the submissions of defence counsel, the submissions of the Crown and, indeed, the directions of the judge completely neutralised the effect of the evidence.

EDELMAN J: Why would there not be at the very least a real prospect that a jury could reason on the basis that she is exposed to the herpes virus, the accused is exposed or has the herpes virus present in his blood, therefore, there must have been sexual contact between the two?

MR HEATON: Again, because of the way that the nature of this evidence in the context of this trial. As I said, this was not evidence which was inherently prejudicial. The evidence that was led from the doctor was that approximately 80 per cent of the population would test positive to this virus.

EDELMAN J: That was the adult population?

MR HEATON: The adult population. Even taking that limitation on it, the effect of the evidence was that this…

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 71
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 search of the appellant's mobile phone, which had been seized following his arrest. The prosecution sought to rely on digital forensic material extracted from the phone, arguing it was relevant to establishing the appellant's intent and motive.

The primary legal issue before the High Court was whether the search of the appellant's mobile phone, conducted without a warrant, was lawful under the *Crimes Act 1914* (Cth) and the common law. Specifically, the Court had to determine if the police had the necessary authority to conduct such a search incidental to arrest, and if the scope of that search exceeded lawful bounds.

The Court reasoned that the power to search a person incidental to arrest under the *Crimes Act* and at common law is limited to what is reasonably necessary to prevent the escape of the arrested person, to avoid the destruction of evidence, or to ensure the safety of the police or the public. Applying this principle, the Court found that the search of the mobile phone was not reasonably incidental to the arrest. The nature of a mobile phone, containing vast amounts of personal information, meant that a search of its contents went beyond the limited purposes for which a search incidental to arrest is permitted. The Court held that a warrant would generally be required for such a search, absent exceptional circumstances not present in this case.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders