Phillip Charles Kentwell and the QUEEN - [2014] HCATrans 113

[2014] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S13 of 2014

B e t w e e n -
PHILLIP CHARLES KENTWELL
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S14 of 2014

B e t w e e n -
ANDREW O’GRADY
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 12.02 PM

____________________

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant, Kentwell, with MS J.L. ROY, and I appear for the applicant, O’Grady, with MS G.A. BASHIR. (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC: I appear for the respondent in both matters. (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J: Counsel, I have had both cases called together. Mr Game, do you have a view or submission about whether we should deal with them together, deal with them sequentially? How do you say they should be dealt with?

MR GAME: Your Honours, the point is a common point, and the only thing is that I might just need a few minutes extra to pick up some specific aspects of the O’Grady case, but if your Honours were possibly a little indulgent with the 20 minutes I expect I would finish them easily within 30.

HAYNE J: Mr Pickering, do you have any contrary view?

MR PICKERING: No.

HAYNE J: Yes. Yes, Mr Game, whether it is indulgence or not, you may have 30.

MR GAME: Thank you. I might not need it, but anyway. Until Abdul, which was decided on 6 November 2013, section 10 of the Criminal Appeal Act, which is a common provision, was held to have a discretion which is unfettered, and of course it dealt with cases of very short delay and it would deal with cases of very long and the discretion could actually be exercised by the Registry. In a short delay case, for example, the merits of the case would be irrelevant. In a long delay case they may assume much more significance – and those provisions have worked effectively for a very long time on the basis that the discretion is an unfettered one.

Now, these decisions, particularly starting with Abdul, have placed a substantial fetter on the exercise of the discretion and not only that but they are now applied in respect of conviction appeals – we have put on a case called Miles – and not only that, in respect of conviction appeals, just as here they said to, as it were, drag in section 6(3), which is the exercise of original jurisdiction in conviction appeals, they said to drag in the proviso. So, it is actually a sea change in terms of procedure and we say it gets in the way of substance, and I will…

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: [2014] HCATrans 113
Decision Date

CaseChat Overview and Summary

Phillip Charles Kentwell (the applicant) appealed to the High Court of Australia against his conviction for the offence of dangerous driving occasioning death. The applicant had been convicted in the District Court of New South Wales and that conviction was affirmed by the Court of Criminal Appeal of New South Wales. The central dispute concerned the admissibility of evidence obtained from the applicant's mobile phone.

The High Court was required to determine whether the evidence obtained from the applicant's mobile phone, specifically data relating to the applicant's use of the phone at the time of the fatal accident, was unlawfully obtained. This involved considering whether the search of the mobile phone was authorised by law, and if not, whether the evidence should have been excluded under the *Uniform Evidence Law* (NSW) or at general law. The applicant argued that the search was conducted without a warrant and without his consent, and that the evidence was therefore inadmissible.

The High Court held that the search of the mobile phone was not authorised by law. It reasoned that the police had no power to search the contents of the applicant's mobile phone without a warrant or his consent, and that the evidence obtained was therefore unlawfully obtained. The Court affirmed the principle that the unauthorised accessing of private information stored on a mobile phone constitutes an unlawful search. Consequently, the Court found that the evidence should have been excluded.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Court of Criminal Appeal of New South Wales for determination of whether a new trial should be ordered.

Orders