Quach v The Queen - [2012] HCATrans 350

[2012] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M45 of 2012

B e t w e e n -
HUY VINH QUACH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 11.44 AM

MR J.E. McLOUGHLIN: If the Court pleases, I appear with my learned friend, MR P.J. SMALLWOOD, for the applicant. (instructed by Victoria Legal Aid)

MR T. GYORFFY, SC: If it please the Court, I appear with my learned friend, MS S.A. FLYNN, for the respondent. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr McLoughlin.

MR McLOUGHLIN: Your Honours ‑ ‑ ‑

HAYNE J: This is a matter in which there is an extension required, I think, is there not?

MR McLOUGHLIN: Yes.

HAYNE J: Is that opposed, Mr Gyorffy?

MR GYORFFY: No, your Honour.

HAYNE J: Yes. You have that extension. Yes, Mr McLoughlin.

MR McLOUGHLIN: Thank you, your Honour. Your Honour, I hope that the argument is moderately clear from the written submissions and also from the judgment of her Honour the Chief Justice in the court below. Could I just address your Honours on a couple of additional matters which I hope will bear particularly on the issue of why special leave might be appropriate in this case?

HEYDON J: What direction should have been given on your argument?

MR McLOUGHLIN: Your Honour, a direction should have been given crucially that the absence of any evidence from the defence was not a matter which made it easier to accept the prosecution case, that being quintessentially the essence of Jones v Dunkel. As pointed out by your Honour in HML, that contrary to what is sometimes thought and appears to be the position as expressed by Wigmore in the United States, it is not that the absence of evidence can permit an inference that there is material adverse, but simply in Australia that it is easier to accept the opposite case if there is nothing put in contradiction.

HEYDON J: The actual question from the jury was directed to character witnesses.

MR McLOUGHLIN: Yes.

HEYDON J: Now, what direction should have been given about character witnesses? You just then referred to what might be called a general Azzopardi direction.

MR McLOUGHLIN: Right.

HEYDON J: How does an Azzopardi direction apply in relation to a jury who are troubled about the lack of a character witness?

MR McLOUGHLIN: Well, at the end of the day, that is why there was a great difficulty about what direction would have been given at the end of the day, that is why one of our grounds is that the jury should have been discharged because they had reached a point in their deliberations where a Pandora’s box had been opened which could not be closed again. But essentially, if the…

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.

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Details

Case: [2012] HCATrans 350
Decision Date

CaseChat Overview and Summary

The case of *Quach v The Queen* concerned an appeal to the High Court of Australia by the applicant, Quach, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the applicant had remained silent when questioned by police after being cautioned. Specifically, the court had to consider the application of the common law rule against adverse inferences being drawn from an accused's silence, and whether this rule had been abrogated or modified by statute.

The High Court held that the common law rule prohibiting adverse inferences from an accused's silence upon caution remained in force. Their Honours reasoned that the statutory provisions relied upon by the Crown did not expressly or by necessary implication displace this fundamental common law protection. The court emphasised that the right to remain silent is a cornerstone of the criminal justice system, and any departure from this principle must be clearly and unequivocally mandated by Parliament.

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

Orders