Patel v The Queen - [2012] HCATrans 135

[2012] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B11 of 2012
No B25 of 2011

B e t w e e n -
JAYANT MUKUNDRAY PATEL
Appellant/Applicant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 7 JUNE 2012, AT 10.00 AM

(Continued from 6/6/12)

FRENCH CJ: Yes, Mr Solicitor.

MR SOFRONOFF: Your Honours, notwithstanding the order in our oral outline, may I go to the issue of particulars first because I apprehend it might make the submissions about the law a little more efficient. In order to deal with the particulars, could I take your Honours to the course of the trial as quickly as I can? If your Honours would go please to volume 1, which is one of the pink volumes I think, and to page 70, you will see there set out over the next few pages the course of the trial.

Relevantly, on page 70 at the top the indictment was presented on 24 April 2009, about a year before the trial hearing commenced. Between the date of the presentation of the indictment and the hearing itself counsel for the appellant, Mr Byrne, whose name you can see at the foot of the left‑hand column of page 70 appearing upon an application, appeared from time to time and others his junior appeared. But there were, between the date of presentment of the indictment and the date of the trial, 10 appearances involving a variety of applications either by the Crown or by the defence.

Relevantly, at page 72, in the right‑hand column at the foot, one of the applications related to a discussion about what the Crown was going to say in its opening remarks to the jury. So that explains a little about why the judge said from time to time, but you never asked for the particulars. He did not mean you never asked for the particulars. He meant you did not ask for them until the Saturday before the trial. There was a Saturday sittings.

On page 23, left hand column at the top, 20 March was a Saturday. I am recorded as there but I have no memory of it, which is odd for a Saturday appearance. But nothing turns on that except that it is common ground that at that hearing Mr Byrne did ask for particulars to be provided on the first occasion. Then if your Honours would go to volume 3 please? At page 511 the Crown began to open its case and ‑ ‑ ‑

HAYNE J: Just before you go on, Mr Solicitor, have we got some record in the books of the events of 20 March?

MR SOFRONOFF: No, you do not. All you have is a reference by either Mr Byrne or Justice Byrne to the fact that particulars were asked for on that Saturday. I will turn…

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 Patel v The Queen

Details

AGLC: Patel v The Queen [2012] HCATrans 135
Case: [2012] HCATrans 135
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Mr Patel against his conviction for the offence of obtaining financial advantage by deception. The central dispute concerned the admissibility of certain evidence obtained by police during their investigation.

The primary legal issue before the High Court was whether the evidence, which included a confession made by Mr Patel, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been admitted into evidence by the trial judge. This involved an examination of the circumstances surrounding the confession and the application of the exclusionary rule under s 138 of the *Evidence Act 1995* (Cth).

The High Court held that the confession was obtained in contravention of the *Crimes Act 1914* (Cth) because Mr Patel was not cautioned in accordance with the requirements of that Act. However, the Court ultimately determined that the admission of the confession, despite the contravention, was not an error that warranted setting aside the conviction. The majority reasoned that the probative value of the evidence was high and that the impropriety in obtaining it was not so serious as to outweigh that value, applying the balancing exercise required by s 138(3) of the *Evidence Act 1995* (Cth). The appeal was therefore dismissed.

Orders