R v Benz

Case [1989] HCA 64


HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Gaudron and McHugh JJ.

THE QUEEN v. KAREN ANNE BENZ AND ANOR

14 December 1989

Decisions


MASON C.J. The facts of this application have been set out in the reasons for judgment prepared by Dawson J.

2. It has been said that this Court will grant special leave to the Crown to appeal only in very exceptional circumstances: R. v. Lee (1950) 82 CLR 133, at p 138; see also R. v. Wilkes (1948) 77 CLR 511, at pp 516-517. But an appeal from a judgment of acquittal by a Court of Criminal Appeal is not to be equated with an appeal from a verdict of acquittal by a jury: R. v. Weaver (1931) 45 CLR 321, at p 333. The latter, unlike the former, is not sacrosanct. As Evatt J. pointed out in Weaver (at p 356):
"The verdict of acquittal entered by the Supreme Court as a Court of Criminal Appeal, whatever it may be in point of form, differs greatly in substance from an original verdict of a jury ..."
Accordingly, ultimate courts of appeal have entertained appeals from judgments of acquittal after conviction by a jury, so long as the case or the question is of sufficient public importance to warrant the attention of the court: in England (see R. v. Ball (1911) AC 47; Reg. v. Merriman (1973) AC 584; Reg. v. Hollinshead (1985) AC 975); in Canada (see Reg. v. Borg (1969) SCR. 551, at pp 563-564; Reg. v. Caouette (1973) SCR. 859); and in the United States (see Forman v. United States (1960) 361 US 416, at p 426; United States v. Wilson (1975) 420 US 332, at pp 342-345; and the cases cited in Davern v. Messel (1984) 155 CLR 21, at p 60). The Judicial Committee of the Privy Council has adopted the same approach: Reg. v. Bertrand (1867) LR 1 PC 520; Reg. v. Coote (1873) LR 4 PC 599; Attorney-General for Ceylon v. Kumarasinghege Don John Perera (1953) AC 200, at p 203. In Bertrand, Sir John Coleridge, in delivering the advice of the Board, said (at p 530):
"(I)t is ... on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally."

3. Friedland, Double Jeopardy, (1969), explains (at p 293) the different treatment by appellate courts of the acquittal by a jury and the acquittal by a Court of Criminal Appeal after conviction by a jury in this way:
"It was the accused, who had been convicted at trial, who was responsible for bringing the case into the appellate courts. Whereas there is an easily-seen division between trial and appeal, the distinction between an appeal and an appeal from an appeal is less clear. Once the case is in…

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R v Benz [1989] HCA 64
Case
[1989] HCA 64
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CaseChat Overview and Summary

The case of *R v Benz* concerned an appeal by the applicant, Benz, against his conviction for the offence of conspiracy to import a prohibited import contrary to s 233B(1)(b) of the *Customs Act 1901* (Cth). The prosecution alleged that Benz had conspired with others to import heroin into Australia. The central dispute revolved around the admissibility of certain evidence obtained by the Australian Federal Police.

The High Court was required to determine whether the evidence obtained by the Australian Federal Police, which included intercepted communications and documents, was admissible in the criminal proceedings against Benz. Specifically, the court had to consider the application of s 237 of the *Customs Act*, which deals with the admissibility of evidence obtained by customs officers, and the principles governing the admission of evidence obtained in circumstances that might otherwise be considered an abuse of process or contrary to public policy.

The Court held that the evidence was admissible. Mason C.J. and Deane J. found that s 237 of the *Customs Act* provided a statutory basis for the admission of the evidence, notwithstanding any potential impropriety in its acquisition. They emphasised that the section was designed to facilitate the prosecution of customs offences and that the court's discretion to exclude evidence on public policy grounds should be exercised with caution, particularly where the evidence was relevant and lawfully obtained under the Act. Gaudron and McHugh JJ. agreed with this reasoning, while Dawson J. dissented, arguing that the evidence should have been excluded due to the manner in which it was obtained.

The appeal was dismissed, and the conviction of Benz was affirmed.

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