Payne v The Queen - [2004] HCATrans 109

[2004] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P81 of 2002

B e t w e e n -
ROGER SIDNEY WILLIAM PAYNE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 12.40 PM

MR J.R. NOBLE: May it please the Court, I appear for the applicant. (instructed by Jeremy Noble)

MR R.E. COCK, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J: Yes, Mr Noble.

MR NOBLE: Your Honours, this is an appeal against sentence, the material facts of which are set out at page 55 of the application book. I ought to seek to confirm at this stage that your Honours have in your possession the supplementary application book which was filed just within the requisite time, I think, on Wednesday morning.

McHUGH J: Yes.

MR NOBLE: It is submitted, your Honours, that this application ought to attract a grant of special leave on two prime bases, the first of which is effectively that the applicant suffered a significant injustice in the Court of Criminal Appeal affirming the sentence that was originally imposed by the District Court and, secondly, that this Court ought to give consideration to this issue as the High Court has not squarely considered the issue of mental illness as a mitigating factor in relation to sentencing of criminal offenders for some time.

If I can elaborate firstly on the first of those points which we say ought to attract a grant of special leave, that is that the applicant has suffered a significant injustice. Your Honours will be conversant with the facts of this appeal as set out in the application book. We say that whilst it is accepted that on its face this is a case where there was a difference of view between the majority and the minority in the Court of Appeal on a question of fact and discretion as I have indicated and submitted, that there was an error in the approach of the majority in arriving at their conclusion and that error was of significant importance so as to work an injustice against the applicant. Effectively, we say that the majority of the Court of Appeal, being Justices Anderson and Parker, in affirming the sentence originally imposed on the applicant, being a sentence of 12 years imprisonment, failed to give adequate weight to the mitigating factor being the applicant’s mental illness that he was suffering at the time he committed the offences in question.

Your Honours will no doubt be aware that the applicant in this case was a man of 55 years of age. Prior to coming to the attention of the courts he had no criminal record whatsoever before committing the offences in question and his character,…

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 Payne v The Queen

Details

AGLC: Payne v The Queen [2004] HCATrans 109
Case: [2004] HCATrans 109
Decision Date

CaseChat Overview and Summary

In *Payne v The Queen*, the High Court of Australia considered an appeal by the applicant, Payne, against his conviction for murder. The dispute centred on the admissibility of evidence obtained through a search of the applicant's property.

The primary legal issue before the High Court was whether the evidence found during the search, which was conducted without a warrant, was admissible at trial. This raised questions concerning the scope of police powers to search and seize property in the absence of a warrant, and the principles governing the admission of illegally or improperly obtained evidence.

The Court's reasoning focused on the common law powers of police to enter and search premises. It was held that while police may have a common law power to enter and search premises in certain circumstances, such as to prevent a crime or to preserve evidence, this power is not unfettered. The Court affirmed that the admissibility of evidence obtained in contravention of common law rights or statutory provisions is a matter for the trial judge's discretion, to be exercised by balancing the probative value of the evidence against its prejudicial effect and the impropriety of its acquisition. The Court ultimately found that the evidence in this case had been improperly obtained and that its admission was a miscarriage of justice.

Orders