Palankay v The Queen - [2013] HCATrans 160

[2013] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M54 of 2013

B e t w e e n -
JASON DAVID PALANKAY
Applicant
and
THE QUEEN
Respondent
Bail application

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 26 JULY 2013, AT 12.25 PM

HIS HONOUR: The applicant, Jason David Palankay, pleaded guilty before Judge Taft in the County Court of Victoria to one count of using a false document and five counts of obtaining property by deception.

Before he was sentenced, Mr Palankay sought to withdraw the pleas of guilty and enter pleas of not guilty to each count. Chief Judge Rozenes heard the application to change the pleas but dismissed it. Mr Palankay was then sentenced by Judge Taft to a total of three years ten months’ imprisonment. A non‑parole period of two years six months was fixed.

Mr Palankay sought leave to appeal to the Court of Appeal against conviction and sentence. Weinberg JA refused both applications and, pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), Mr Palankay then elected to have them further heard and determined by the Court of Appeal. On 26 April 2013, Harper and Osborn JJA refused both applications for leave to appeal.

On 31 May 2013, Mr Palankay filed an application in this Court seeking special leave to appeal against the orders made by the Court of Appeal on 26 April 2013 and a short extension of time within which to make that application. By summons filed on 4 July 2013 Mr Palankay seeks bail pending the hearing and determination of his application for special leave. He asks that his application be determined on the papers without oral argument. The Director of Public Prosecutions has filed written submissions opposing the grant of bail but accepting that the matter should be decided without oral argument.

The application for bail should be refused.

The application for bail pending the hearing and determination of an application for special leave to appeal to this Court “invokes an extraordinary jurisdiction of this Court” - Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 517; [1983] HCA 13. Whether that power may be exercised only “to preserve from futility the exercise of the Court’s jurisdiction to grant special leave to appeal and to allow an appeal thereafter” - Chamberlain (1983) 153 CLR 514 at 518 need not be decided. It may be assumed, without deciding, that the discretion to admit the applicant to bail is not so confined. Nonetheless, the power to admit to bail pending hearing and determination of an application for special leave should not be exercised unless exceptional circumstances are shown - cf In re Cooper's Application for Bail [1961] ALR 584.

In the present case, the applicant was convicted on his pleas of guilty, pleas which he later sought to withdraw. His application for leave to withdraw the pleas…

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 Palankay v The Queen

Details

AGLC: Palankay v The Queen [2013] HCATrans 160
Case: [2013] HCATrans 160
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Palankay against a conviction for murder. The central dispute concerned the admissibility of certain evidence, specifically a confession made by Palankay to police.

The primary legal issue before the High Court was whether the confession was improperly obtained, thereby rendering it inadmissible under the common law. This involved an examination of whether Palankay's will was overborne by the conduct of the police, or if the confession was made voluntarily.

Hayne J, delivering the judgment, applied the principles established in *R v Swaffield* and *The Queen v Lee*. His Honour found that the confession was not rendered inadmissible by the circumstances of its making. The critical factor was that Palankay was not subjected to any form of oppression or inducement that would vitiate the voluntariness of his statement. The court affirmed that a confession is admissible if it is the voluntary product of the accused's will, free from coercion or undue influence.

The appeal was dismissed.

Orders