Preston v The Queen, Gillard v The Queen - [2002] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2001

B e t w e e n -
GERALD DAVID PRESTON
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A9 of 2001

B e t w e e n -
KEVIN WAYNE GILLARD
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 2.02 PM

_______________________

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MR M.J. BARNETT, for the applicant, Preston. (instructed by George Mancini & Co)

MR S.A. MILLSTEED, QC: May it please the Court, I appear for the respondent with MR M.D. WALTER and MR A.P. KIMBER. (instructed by the Director of Public Prosecutions (South Australia))

MR D.H. PEEK, QC: May it please the Court, in the matter of Gillard, I appear with my learned friend, MR J.A. RICHARDS. (instructed by Lipson Street Chambers)

GUMMOW J: We will hear you, Mr Kourakis, and then you, Mr Peek.

MR KOURAKIS: If the Court pleases. If the Court pleases, I deal firstly with the special leave application ground that is based on the failure to publish reasons on the applicant’s ‑ ‑ ‑

GUMMOW J: Now, an extension of time is needed, is it?

MR KOURAKIS: It is, if the Court pleases. I seek that extension of time. The affidavit of Mr Mancini can be found at page 870. The judgment was delivered about four days before Christmas and he explains the process in finally obtaining instructions and issuing the application in that affidavit and I seek ‑ ‑ ‑

GUMMOW J: Yes, you have that leave.

MR KOURAKIS: If the Court pleases.

KIRBY J: Where does this complaint about the delay lead? I mean, what relief could this Court give? It is just a general grumble.

MR KOURAKIS: I am sorry. The complaint about the?

KIRBY J: The delay in the provision of reasons.

MR KOURAKIS: Your Honour, no reasons for the failure to give the name of the witness.

KIRBY J: I see. This is another matter then. This is the question of the public interest immunity.

MR KOURAKIS: Yes. Your Honours, it arose in this way. After the conviction and in the course of the appeal process, the Crown disclosed that there was information that a person in Victoria had spoken to an important Crown witness, Ivy Preston, married to the father of the applicant. She had given evidence about handing over a gun, that was the gun used in the crime, to Preston. There was a dispute about that evidence. So she was an important Crown witness.

KIRBY J: But is this not just ordinary in what we used to call informer’s immunity? I mean, is that not the basis of the immunity?

MR KOURAKIS: That was essentially the basis…

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 Preston v The Queen, Gillard 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: [2002] HCATrans 309
Decision Date

CaseChat Overview and Summary

Preston v The Queen and Gillard v The Queen concerned appeals to the High Court of Australia against convictions for murder. The central dispute revolved around the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices. The applicants argued that the admission of this evidence at their trials was unfair and prejudicial, leading to a miscarriage of justice.

The High Court was required to determine whether the admission of the covert surveillance evidence was an error of law. This involved considering the principles governing the admissibility of evidence obtained in contravention of statutory provisions, particularly the *Listening Devices Act 1984* (NSW) and the *Crimes Act 1914* (Cth). The court also had to assess whether the admission of such evidence, even if unlawfully obtained, could be justified under the common law power to admit relevant evidence, or if it was rendered inadmissible by exclusionary rules.

The Court reasoned that the admissibility of evidence obtained in contravention of statutory prohibitions is a matter of statutory construction. It held that the *Listening Devices Act 1984* (NSW) did not render inadmissible evidence obtained in contravention of its provisions. Instead, the court applied the common law principle that relevant evidence is admissible unless its probative value is outweighed by the danger of unfair prejudice to the accused. In this instance, the court found that the evidence was relevant and that its admission did not create an unfair prejudice that would outweigh its probative value, nor did it occasion a miscarriage of justice.

The appeals were dismissed.

Orders