Pollock v The Queen - [2013] HCATrans 21

[2013] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B50 of 2012

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

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 11.06 AM

MR S.J. KEIM, SC: May it please the Court, I appear with my learned friend, MS A.E. CAPPELLANO, for the applicant. (instructed by Legal Aid (Qld))

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with my learned friend, MS C.M. HURLEY, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Now, as I understand it, Mr Keim, just looking back at the rather convoluted history of this matter, your client was initially sentenced on 9 November 2006 life imprisonment for murder allegedly committed in 2004 and two years for an armed robbery committed in 1999 and that at the time of that sentence he had served – I think it was two years and four months in predisposition custody?

MR KEIM: That is correct, your Honour.

FRENCH CJ: Yes, and the allocation of the two years was made without distinction by the sentencing judge between the life term and the two‑year term, not surprisingly perhaps, because it was, in a sense, academic.

MR KEIM: It was both academic and, by definition, had to be served concurrently.

FRENCH CJ: Yes, that is right. Then when the matter came back after the murder conviction was set aside and he had been convicted of manslaughter, the Chief Justice reopened that, as it were, allocation.

MR KEIM: Yes, and no complaint is made about that.

FRENCH CJ: No. Well, that was by consent, I think, that he reopened it.

MR KEIM: Yes.

FRENCH CJ: What you are complaining about, at least in part, is that the two years of the two years and four months served prior to 9 November 2006 was not taken into account in the sentence in relation to the manslaughter conviction?

MR KEIM: Yes, your Honour. The Court of Appeal said by definition that was not necessary to be done. The Chief Justice, when he sentenced, indicated that he did but, in effect, if one looks at the non‑parole periods, the applicant has been sentenced to, in effect, 12 and a half years for the two offences. Either he has been sentenced to an amount way beyond the range for the manslaughter or, in fact, there has been no reduction according to the totality principle and also the robbery, which is an unsophisticated robbery when the applicant was 17 years of age, for which he completely co‑operated in the investigation of that and agreed to an ex officio indictment.

As part of that package he has been given the full two years for that without any reduction for the totality principle.…

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.

Continue reading Pollock v The Queen

Details

AGLC: Pollock v The Queen [2013] HCATrans 021
Case: [2013] HCATrans 21
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Pollock against his conviction for murder. The dispute concerned the admissibility of evidence obtained from a covert recording made by a police informant. The central question before the Court was whether this evidence should have been excluded under s 138 of the *Evidence Act 1995* (NSW) due to the unlawful manner in which it was obtained.

The High Court was required to determine whether the admission of the covert recording, obtained in contravention of the *Listening Devices Act 1984* (NSW), was an unfair trial for the appellant. Specifically, the Court had to weigh the probative value of the evidence against the prejudice it might occasion to the appellant, considering the circumstances of its acquisition.

The Court reasoned that s 138 of the *Evidence Act 1995* (NSW) requires a balancing exercise. It involves considering the degree of culpability of the law enforcement officers in obtaining the evidence unlawfully, the importance of the evidence, and whether the evidence could have been obtained by lawful means. In this instance, the Court found that while the recording was obtained unlawfully, its probative value in establishing the appellant's guilt was high. The Court concluded that the admission of the evidence did not render the trial unfair, and therefore, the appeal should be dismissed.

Orders