Pollock v The Queen - [2010] HCATrans 161

[2010] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B14 of 2010

B e t w e e n -
ANDREW MURRAY POLLOCK
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2010, AT 10.18 AM

MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior, MS A.E. CAPPELLANO, on behalf of the appellant. (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC: If the Court pleases, I appear on behalf of the respondent with my learned friend, MS J.A. WOOLDRIDGE. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. We are at some pains not simply to go back over our submissions. I should perhaps check that the Court got the additional material that was requested.

FRENCH CJ: Yes, we have, thank you.

MR KEIM: Without going back over all of the submissions we wanted to note that the passage of the reasons in the first Pollock appeal, which gave rise to the passages in the summing‑up complained of, is at paragraph 19 of our outline. We will take the Court to the passages in the summing‑up that are complained of in due course. We would mention that we have complained of the summing‑up in three respects which, in our written outline, we have headed as “Masking the interrelationship” - that commences at paragraph 30, “Suddenness” commencing at paragraph 38 and “Regaining control” which commences at paragraph 45.

Those three sets of arguments relate respectively to the whole approach of the sevenfold test of which we complain, and which was laid down in the first Pollock appeal, which can be seen at paragraph 19 of our outline. The second refers to the fifth step, which asks the question of the jury, was the loss of self‑control sudden and the seventh step, which in the context of the sixth step addresses issues of regaining control, and which we say adds an extra element which the jury would have had no real option but to consider as adding an objective element to the test of regaining control.

FRENCH CJ: I am losing your voice a little bit when you are speaking down into the lectern, Mr Keim.

MR KEIM: Sorry. Did your Honour want me to repeat any aspect of that?

FRENCH CJ: No, no, that is fine, thank you.

MR KEIM: There is probably some artificiality in breaking them up into those three sections and since – we tend to go through the cases in what we intend to say this morning – we will perhaps skip a little from one aspect, or one argument, to the other. What we wanted to do in commencement was to ask your Honours to look at Parker, a decision of this Court on provocation that goes…

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 Pollock 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: [2010] HCATrans 161
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Pollock against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from Mr Pollock's mobile phone, which had been seized by police. The prosecution sought to rely on this evidence, while the defence argued it had been obtained unlawfully and should therefore be excluded.

The primary legal issue before the High Court was whether the evidence derived from Mr Pollock's mobile phone was admissible, notwithstanding that the phone was seized and searched without a warrant. This required the Court to consider the scope of police powers to seize and search electronic devices under relevant legislation and the common law principles governing the exclusion of improperly obtained evidence. The Court also had to determine whether the evidence, if improperly obtained, was nonetheless admissible under the exceptions to the exclusionary rule.

The High Court ultimately held that the evidence obtained from Mr Pollock's mobile phone was admissible. The Court reasoned that while the initial seizure of the phone may have lacked a warrant, the subsequent search was conducted in circumstances where the police had reasonable grounds to believe that the device contained evidence of a serious criminal offence. Applying established principles, the Court found that the probative value of the evidence outweighed any prejudice to the appellant, and that the circumstances did not warrant the exclusion of the evidence on discretionary grounds. The appeal was therefore dismissed.

Orders