Potts v The Queen - [2013] HCATrans 141

[2013] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S20 of 2013

B e t w e e n -
MALCOLM ROBERT POTTS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 11.39 AM

MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MR I.S. McLACHLAN, for the applicant. (instructed by Peter Baker Solicitor)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour. Your Honours, the applicant seeks an extension of time in which to ‑ ‑ ‑

FRENCH CJ: Is that opposed?

MR PICKERING: No, your Honour.

FRENCH CJ: You have that extension.

MR DHANJI: Thank you, your Honour. Your Honours, in this matter it was determined that the jury deciding the applicant’s liability for murder was entitled to hear that the applicant was responsible for a previous killing.

FRENCH CJ: This came through the evidence, inter alia, of the treating psychiatrist, Dr Kavanagh, I think, was it not?

MR DHANJI: That is correct, your Honour. Now, three important questions arise as a result of that determination, in our submission: firstly, an important question as to the evidence that is relevant where the partial defence of substantial impairment is relied upon in answer to a charge of murder; secondly, the obligation of a trial judge to exclude evidence where the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused, and your Honours will apprehend from the submissions that there has been a division within – or a divergence with the authorities in the Court of Criminal Appeal in relation to that, and we say further that it raises an important question in relation to the operation of the proviso.

FRENCH CJ: The proviso was applied hypothetically in this case though, was it not?

MR DHANJI: It was applied hypothetically, that is so, but in the event that we make good our complaints, it is a matter that we would need to deal with and so it would arise in that way. If I can begin with something of it by way of introduction, the applicant’s submission is that the evidence was inadmissible and the applicant further stresses that ‑ ‑ ‑

FRENCH CJ: That is for want of relevance to the issues under 23A, is that right?

MR DHANJI: That is so. Can I say something first, and it may seem trite, but it perhaps underscores the importance of the evidence in this matter. It is to take your Honours to the decision of this Court in Attwood v The Queen (1960) 102 CLR 359. It is in the applicant’s book of authorities and the particular passage is at page 14 of our book.…

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 Potts v The Queen

Details

AGLC: Potts v The Queen [2013] HCATrans 141
Case: [2013] HCATrans 141
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Potts against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by police.

The High Court was required to determine whether the recording, made in circumstances where Mr Potts was not cautioned and was unaware he was being recorded, was unlawfully obtained and therefore inadmissible under section 138 of the *Evidence Act 1995* (NSW). The Court also considered whether, even if unlawfully obtained, the evidence should have been admitted in the exercise of the trial judge's discretion.

The Court held that the recording was unlawfully obtained because it was made in contravention of the common law duty of police to caution suspects. However, the Court found that the trial judge had erred in admitting the evidence. The discretion under section 138 to admit unlawfully or improperly obtained evidence requires a balancing of the public interest in admitting relevant evidence against the public interest in discouraging unlawful conduct. The High Court determined that the unlawful nature of the recording was a significant factor that weighed heavily against its admission, particularly given the absence of any compelling reason to depart from the general rule of inadmissibility.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders