Pollock v The Queen - [2010] HCATrans 54

[2010] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B36 of 2009

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

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 MARCH 2010, AT 2.25 PM

MR S.J. KEIM, SC: I appear in this matter for the applicant with my learned junior, MS A.E. CAPPELLANO. (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

CRENNAN J: Yes, thank you.

MR KEIM: Your Honour, the only issue in dispute in the trial was whether the Crown had negatived the defence of provocation. The applicant pleaded guilty to manslaughter and not guilty to murder.

CRENNAN J: At the trial did the defence counsel accept that the seven‑fold test was the framework through which the issue of provocation should go to the jury?

MR KEIM: It did, your Honour, because all parties, including the trial judge, were bound by the decision in the Court of Appeal in a previous appeal in this matter.

CRENNAN J: Yes.

MR KEIM: In fact, it was really only at the time when a question came back from the jury that both the Crown Prosecutor and the defence realised that the formulation, at least with regard to the fifth step, departed from the phraseology in section 304, so the answer to your question is in the affirmative.

CRENNAN J: Thank you.

MR KEIM: As I said, the applicant complains here about the way in which the summing‑up occurred. The seven-fold test, as I said, had been laid down by the Court of Appeal in an earlier appeal by this applicant, and for the reason that it was not essential to the ground’s argument in the first appeal that attention was perhaps not given to it prior to – somewhat after the summing‑up had finished.

However, that test laid down by the Court of Appeal followed in the trial, now endorsed on more than one occasion by the Court of Appeal – and we have included the case of Miller in our bundle where the President who formulated the test recommended it to future trial judges – we say it precluded the applicant from receiving a fair trial. We say that the effect of following the approach was to misdirect the jury’s consideration of the defence of provocation and as a result to jeopardise the applicant’s opportunity to be acquitted of murder by application of the defence of provocation.

KIEFEL J: In the decision of Miller, I have not had a chance to read it as yet, was this issue taken before the Court of Appeal? Did they deal with it?

MR KEIM: No, your Honour, Miller had been tried prior to the first decision in

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 [2010] HCATrans 54
Case: [2010] HCATrans 54
Decision Date

CaseChat Overview and Summary

Pollock appealed his conviction for armed robbery to the High Court of Australia. The appeal concerned the admissibility of evidence obtained from a search of the appellant's property.

The central legal issue before the High Court was whether the search warrant, which authorised the search of the appellant's property, was validly issued. Specifically, the Court had to determine if the information provided to the issuing officer established reasonable grounds to believe that evidence of the offence of armed robbery would be found at the premises to be searched, as required by the relevant legislation.

The High Court considered the nature of the information presented to the issuing officer and the standard of proof required for the issuance of a search warrant. Their Honours applied the principles of statutory interpretation to the relevant provisions of the *Crimes Act 1914* (Cth) and relevant case law concerning the sufficiency of information to establish reasonable grounds. The Court found that the information before the issuing officer was insufficient to establish reasonable grounds for believing that evidence of the offence would be found at the appellant's property.

The appeal was allowed, the conviction was quashed, and the matter was remitted to the Supreme Court of New South Wales for a retrial.

Orders