Pelly v The Queen - [2015] HCATrans 294

[2015] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2015

B e t w e e n -
RONALD DANIEL PELLY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 NOVEMBER 2015, AT 10.53 AM

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR A.J. CULSHAW, for the applicant. (instructed by Ben Sale Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS F.J. McDONALD, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Ms Shaw.

MS SHAW: Your Honours, the three questions worthy of special leave relate to the conduct of the prosecutor at the trial of the applicant. The first question is whether his conduct breached the accused’s right to silence. The second question is whether his conduct breached the principle in Palmer v The Queen (1998) 193 CLR 1, and the third question is whether his conduct breached the clear intent of section 13A of the Evidence Act (SA) in relation to special arrangements for witnesses.

The first question worthy of special leave is whether it is permissible for a prosecutor to allege that the accused’s evidence is a recent invention, in the present case in the time that the accused was served with the police statements where the accused has exercised his right to silence before trial, or is it a breach of his right to silence and prohibited.

FRENCH CJ: Well, is not any suggestion that an accused is lying an accusation of an invention?

MS SHAW: It is an accusation of invention, but it is not an accusation that imports an invention at a particular period in time. The important distinction is that if you accuse the witness, whether it is an accused or another person, of fabricating at a particular point in time, the necessary inference is that before that point in time, they had a different memory of events. Invention at trial – that is, if it is suggested somebody made something up, or is making something up – does not focus on any point in time that implies that before that point in time their memory or their recall was different.

FRENCH CJ: Well, I am looking at paragraph 11 of the respondent’s submissions at page 189 of the application book that:

Any allegation that an explanation of an event is invented carries with it an allegation of invention occurring after the event. This being so, all invention is, in a sense, recent where recent is taken to mean after the event –

et cetera. I am just concerned that this line of argument gets us into a kind of micromanagement of prosecutorial addresses that does not address a…

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: [2015] HCATrans 294
Decision Date

CaseChat Overview and Summary

The case of Pelly v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Pelly, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal to the High Court challenged the validity of that conviction.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence, specifically a confession made by the appellant. The appellant argued that this confession had been obtained in circumstances that rendered it inadmissible, thereby prejudicing his right to a fair trial. This raised questions about the proper application of the rules of evidence concerning confessions and the discretion of the trial judge to exclude unfairly obtained evidence.

The High Court considered the circumstances in which the confession was made, including the length of time the appellant was in custody and the nature of the questioning. The Court applied established principles regarding the admissibility of confessions, particularly the requirement that they be voluntary and not obtained by unfair means. The Court ultimately found that the trial judge had not erred in admitting the confession, as the evidence did not establish that it was involuntary or unfairly obtained. Consequently, the appeal was dismissed.

Orders