Petkos v The Queen - [2020] HCATrans 212

[2020] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S56 of 2020

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

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 DECEMBER 2020, AT 9.30 AM

GAGELER J: In accordance with the current COVID practice of the Court and to minimise the touching of lecterns, I will note the appearances.

MR I.S LLOYD, QC appears with MR T. BICANIC for the applicant. (instructed by Proctor & Associates)

MR P.J. McGRATH, SC appears with MS M. A. KUMAR for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

GAGELER J: Thank you, Mr Lloyd.

MR LLOYD: Thank you, your Honour. Your Honours, may I start by the overall submission that we expand upon in our written submissions obviously that we submit the matter warrants the grant of special leave both at the level of general importance and at the level of the administration of justice on the particular facts of this case.

GAGELER J: What is the principle in Maxwell that you say was not applied?

MR LLOYD: If I could take your Honour briefly to Maxwell - I take it your Honours obviously have a copy of it. It was a case dealing with a Commonwealth importation. There were two charges in that case of the importation of the same drug the subject of this case, that is, the drug colloquial known as GBL.

If I could just pick up Maxwell at paragraph 20, near the end of that paragraph there is a concluding sentence that says – and remember obviously this was in the face of a Commonwealth inadequacy appeal where the Commonwealth was challenging the inadequacy of the sentence in the lower court. The Court of Appeal commented at the end of paragraph 20:

But there is another important factor in the present case — the low financial return (likely to be) derived from the sales of GBL.

The court then goes on traditionally in 21 and 22, quoting the decision of this Court in Wong where it was obviously stated that the greater the reward the offender hoped to receive for a drug transaction, then the heavier the punishment would be expected. But the court went further, we submit, in Maxwell, and if I could pick up where they said things that we say go beyond this Court’s decision in Wong. If I could take your Honour to paragraph 29 of Maxwell and pick it up at the second sentence:

But, on ordinary principles, it is open to a person convicted of involvement in a drug importation to seek to mitigate his/her culpability by establishing on the balance of probabilities that he/she stood to derive little or no benefit personally.

Again, probably adopting Maxwell, going no further but we say that the next paragraph…

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.

Keep reading for free

Create a free CaseChat account to read Petkos v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] HCATrans 212
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mr Petkos, against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant.

The High Court was required to determine whether the admission of the covert recording, which was obtained in circumstances where the applicant had a reasonable expectation of privacy, was an unfair use of evidence under section 137 of the *Evidence Act 1995* (NSW). This involved considering the balance between the probative value of the evidence and the risk of unfair prejudice to the applicant.

The Court reasoned that the admission of evidence obtained in circumstances where a person has a reasonable expectation of privacy, without their knowledge or consent, carries a significant risk of unfair prejudice. Applying the principles of s 137, the High Court held that the probative value of the recording was outweighed by the danger that it might be unfairly prejudicial to the applicant. Consequently, the Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders