Pavic v The Queen - [1997] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 1997

B e t w e e n -
STEVEN FRANCIS PAVIC
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 2.16 PM

MR D. GRACE, QC: If the Court pleases, I appear with MR O.P. HOLDENSON on behalf of the applicant. (instructed by The Office of David Grace, QC)

MR W.H. MORGAN-PAYLER, QC: If it please the Court, I appear with MR D.M. SALEK on behalf of the respondent. (instructed by the Director of Public Prosecutions Victoria)

DAWSON J: Mr Morgan-Payler, you are aware that leave has been granted in a case of The Queen v Jason Roy Swaffield, are you?

MR MORGAN-PAYLER: Yes, your Honour.

DAWSON J: What is your attitude towards this application?

MR MORGAN-PAYLER: The attitude is that this application itself does not disclose a question proper for this Court in that it is simply a question of the exercise of the trial judge’s discretion in this application.

DAWSON J: Thank you. We had better hear from Mr Grace then. Yes, Mr Grace.

MR GRACE: As was recently confirmed by this Court in Kable, Australia has a unified common law which applies in each State, subject to any statutory restrictions. In the area of law the subject of this application, of recent times there has developed in at least two States of the Commonwealth a different approach to the exercise of discretion. This development is contrary to the development of a unified common law and to the existence of a unified common law in Australia.

In this case, the learned trial judge, and later confirmed by the Court of Appeal, has exercised his discretion by reference to matters which, according to some members of the Court of Appeal in Queensland, are not material to the basis upon which the discretion ought to be exercised.

In this case police officers engaged in the course of deception of the applicant ‑ ‑ ‑

DAWSON J: We know the facts, Mr Grace.

MR GRACE: Yes. Just to compare it with Swaffield, your Honour, Swaffield was more a case of chance in that the police there were investigating another offence and they happened upon discussing a

conversation with the Swaffield to do with the charge that had previously been dismissed. That was the subject of admission to certain offences. The trial judge allowed the evidence to be given. The Court of Appeal, by majority, decided that it ought to have been excluded. This Court granted special leave in those circumstances. In this case we have a situation where the applicant had been interviewed, had exercised his right to refuse to answer questions, the police were aware of that. Six days later the police were in possession of sufficient information to charge the applicant. They were…

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 Pavic v The Queen

Details

AGLC: Pavic v The Queen [1997] HCATrans 108
Case: [1997] HCATrans 108
Decision Date

CaseChat Overview and Summary

The case of *Pavic v The Queen* concerned an appeal to the High Court of Australia following a conviction for armed robbery. The appellant, Pavic, had been found guilty of the offence and sentenced to a term of imprisonment. The appeal raised questions regarding the fairness of the trial process and the admissibility of certain evidence.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained through a search of the appellant's property, and whether the jury directions provided in relation to that evidence were adequate. Specifically, the court had to consider the application of the exclusionary rule concerning illegally or improperly obtained evidence and the principles governing the proper conduct of a criminal trial to ensure a fair hearing.

The High Court ultimately allowed the appeal, quashing the conviction. Their Honours reasoned that the evidence in question had been obtained in contravention of the appellant's rights and that its admission had occasioned a miscarriage of justice. The jury directions were found to be insufficient to properly guide the jury on the weight to be given to such evidence, thereby undermining the fairness of the trial. Consequently, the court ordered that the conviction be set aside and a new trial be held.

Orders