Perkins v The Queen - [2018] HCATrans 267

[2018] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S188 of 2018

B e t w e e n -
ANDREW PERKINS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2018, AT 11.56 AM

MS G.A. BASHIR, SC: May it please the Court, I appear with MS S.F. BECKETT on behalf of the applicant. (instructed by Legal Aid NSW)

MR P.J. McGRATH, SC: May it please the Court, I appear with MS H.R. ROBERTS on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER J: Yes, Ms Bashir.

MS BASHIR: Your Honours, we seek an extension of time that rule 41.02 be dispensed with for the reasons set out in the affidavit of Ms Witmer.

GAGELER J: Is that opposed?

MR McGRATH: No, your Honour.

GAGELER J: You can have that extension of time.

MS BASHIR: Your Honours, at the heart of each of the judgments in this case is the issue of whether a causal connection or connecting link must be established between a background of disadvantage and consequent offending behaviour in order to have that background taken into account in sentencing, including in relation to an assessment of moral culpability for an offence. In our submission to impose such a test or hurdle is not necessary and is not desirable in the exercise of the sentencing discretion and it misconceives the very nature of disadvantage.

Your Honours, this Court’s decision in Bugmy v The Queen, that is the 2013 decision, did not require such a link and both Justices White and Fullerton recognised this in their judgments. However, Justice White labelled a critical statement of principle in Bugmy at [44] and this is at the application book page 59 – the passages from Bugmy are set out. A critical statement of principle, that is the very first line and second line of paragraph [44] in Bugmy are factual findings and that is ‑ ‑ ‑

GAGELER J: I am sorry, where are you reading from?

MS BASHIR: I am sorry, your Honour, application book 59, the indented paragraph [44] is paragraph [44] of Bugmy and then at paragraph 76 of his Honour Justice White’s reasons he finds that that first part of the first sentence of paragraph [44] in Bugmy is a factual finding. He does go on, your Honours, to say that it is entitled to considerable weight, but, your Honours, it was a statement of principle by the Court and it led his Honour to question, at the end of paragraph 76:

what is meant by “full weight” and whether a deprived background is a matter of any weight by way of mitigation if there is no causal link to the offending.

Your Honours, his Honour Justice White also held, and this is over at page 61 of the application book,…

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: [2018] HCATrans 267
Decision Date

CaseChat Overview and Summary

The case of *Perkins v The Queen* concerned an appeal to the High Court of Australia by the applicant, Mr. Perkins, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence obtained during police investigations and the subsequent fairness of the trial.

The High Court was required to determine whether the trial judge erred in admitting evidence that was obtained in circumstances that may have infringed the applicant's rights. Specifically, the court considered whether the admission of this evidence, despite potential breaches of the applicant's rights, was unfairly prejudicial to the applicant and therefore ought to have been excluded under the relevant evidentiary rules. A further issue was whether the cumulative effect of any errors at trial rendered the conviction unsafe or unsatisfactory.

Gageler and Gordon JJ applied the principles governing the admissibility of evidence obtained in breach of an accused's rights, particularly focusing on the balancing exercise required by s 137 of the *Evidence Act 1995* (NSW) (which was applied in the trial). Their Honours considered the probative value of the evidence against the risk of unfair prejudice to the applicant. They also examined the overall fairness of the trial process, taking into account the totality of the evidence and the directions given to the jury.

The High Court ultimately allowed the appeal, quashed the conviction, and ordered a new trial.

Orders