Pretorius v The Queen - [2009] HCATrans 152

[2009] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B11 of 2009

B e t w e e n -
JOHANNES PETRUS PRETORIUS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 9.07 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant. (instructed by Boe Lawyers)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my learned junior, MS L.P.T.C. BRISICK. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases. If your Honours could go to page 104 of the application book you will see extracted, from about line 25, the pre‑trial ruling. So the effect of those three paragraphs there is, subject to how the jury will be directed about it, the evidence – shall I say the three groups of evidence were inter‑admissible, that is to say, evidence of complainant C admissible in relation to cases concerning A and B, and vice versa, and evidence in relation to observations of the man in the water by all three and Mr Thornton were all inter‑admissible.

Now, the question that arises is, having so ruled, how is the jury to be directed in respect of that? In a sense, that is unfinished business from HML because there is a split court on how a jury is to be directed about this, subject to your Honour Justice Kiefel’s judgment in the paragraph that we refer to in our submissions. Now, if I could take your Honours to this case, if I can entice your Honours. This case also raises relatively neatly the question about the basis upon which such evidence is to be used by a jury in a case involving coincidence reasoning and some tendency reasoning, but at heart coincidence reasoning, and in a fairly neat and confined factual context.

FRENCH CJ: Well, tendency really did not get into the Act at all, did it, in the direction?

MR GAME: No, not, your Honour. Tendency is just something that one would observe as being an effect of the evidence, but it is not. It does not get in on that basis. It gets in on the basis of coincidence reasoning. Now, there is a complication in the evidence which is that the three victims are standing on the beach conducting a joint identification, joint accounts and joint descriptions to the police. We have given examples of this, but some of the aspects of identification are elevated by what they hear from others. For example, the blue bathers become blue bathers with a yellow stripe in the accounts of A and B, although it is C that brought that piece of information to the joint identification.

FRENCH CJ: The judge did caution the jury about this, did he not, about group think,…

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 Pretorius v The Queen

Details

AGLC: Pretorius v The Queen [2009] HCATrans 152
Case: [2009] HCATrans 152
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Pretorius 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 Pretorius 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 contravened the common law right to privacy and potentially statutory provisions regarding surveillance. However, the Court found that the trial judge had not erred in admitting the evidence. Applying the principles established in *Bally v The Queen*, the High Court reasoned that the probative value of the evidence was high, and while its admission carried a risk of unfair prejudice, this risk was outweighed by its importance to the prosecution's case. The Court emphasised that the discretion to admit unlawfully obtained evidence requires a careful balancing of competing interests, including the public interest in the conviction of offenders and the public interest in the lawful conduct of law enforcement.

The appeal was dismissed.

Orders