Playford v The Queen; Griffiths v The Queen - [2014] HCATrans 20

[2014] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B29 of 2013

B e t w e e n -
GARY ALLEN PLAYFORD
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Brisbane No B45 of 2013

B e t w e e n -
TREVOR HARRY GRIFFITHS
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 11.56 AM

____________________

MR J.R. HUNTER, QC: May it please the Court, I appear for the applicant, Playford. (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC: May it please the Court, I appear with my learned friend, MR B.J. POWER, for the respondent in both matters. (instructed by Director of Public Prosecutions (Qld))

MR M.J. BYRNE, QC: May it please the Court, I appear for the applicant, Griffiths. (instructed by Legal Aid Queensland)

FRENCH CJ: Is it convenient for us to hear from counsel for each applicant before hearing from the respondent?

MR HUNTER: Yes, your Honour.

FRENCH CJ: Yes, very well, Mr Hunter.

MR HUNTER: Your Honours, this case concerns the exercise of the fairness discretion to exclude what was held to be a voluntary confession to two murders in circumstances where the investigating police engaged in conduct that was deprecated by the primary judge and sharply criticised by the Court of Appeal. The conduct engaged in is summarised in the judgment of Justice Dalton, who delivered a powerful dissent on appeal. That is set out at page 57 of the application book, commencing at about line 11.

FRENCH CJ: I do not suppose if it were not a powerful dissent you would be referring to it.

MR HUNTER: It contains a helpful summary of what it was alleged that the police had done. Essentially, there were a number of breaches of the relevant provisions governing the interviews by police with suspects – not only the Police Powers and Responsibilities Act but also the Responsibilities Code. Quite independently of the breaches of the Act and the Code, the police plainly flouted the spirit and intention of those provisions.

The conduct included a failure to record a caution, a failure to adopt an unrecorded conversation that included a caution, no inquiry as to why the applicant had apparently changed his mind about speaking to police without speaking to a solicitor in circumstances where he had twice earlier said that he would not speak unless he had spoken to one. Most significantly, there was the failure to tell the applicant of the existence of the solicitor who had been engaged to act for him and to whom the principal investigating police officer had already spoken.

This case, it is submitted, is quite different from those involving an undercover operative. This was not a Tofilau or Swaffield‑type case. This involves a formal interview with…

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 20
Decision Date

CaseChat Overview and Summary

In *Playford v The Queen* and *Griffiths v The Queen*, the High Court of Australia considered appeals from convictions for murder. The central dispute concerned the admissibility of evidence obtained through the use of a listening device, specifically whether the evidence was obtained unlawfully and, if so, what the consequences of that unlawfulness were for its admission at trial. The appeals were heard together by the High Court.

The primary legal issue before the Court was whether the admission of evidence obtained by a listening device, in circumstances where the warrant authorising its use was found to be invalid, constituted a miscarriage of justice. This required the Court to consider the principles governing the admission of illegally or irregularly obtained evidence, particularly in the context of serious criminal offences like murder, and the application of the proviso in section 237(1)(b) of the *Criminal Law Consolidation Act 1935* (SA).

The Court reasoned that the invalidity of the warrant meant the evidence was obtained unlawfully. However, the Court applied the proviso, which allows an appellate court to dismiss an appeal against conviction if it is of the opinion that no substantial miscarriage of justice has actually occurred. The Court found that, despite the unlawful obtaining of the evidence, the other evidence before the jury was so overwhelming that it was inevitable they would have convicted the appellants even without the evidence from the listening device. Therefore, no substantial miscarriage of justice had occurred.

The appeals were dismissed.

Orders