R v Gee and Thaller - [2002] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A61 of 2002

B e t w e e n -
THE QUEEN
Appellant
and
ROBERT GORDON POLLYBANK GEE and HANS ADALBERT THALLER
Respondents

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 13 AUGUST 2002, AT 2.32 PM

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MR D. PETRACCARO, for the appellant. (instructed by the Commonwealth Director of Public Prosecutions)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR A.L. TOKLEY and MR S.D. OWER, for the first respondent. (instructed by Jon Lister)

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MS N.M. HURLEY, for the second respondent. (instructed by Noelle Hurley)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR C.D. BLEBY, for the Attorney‑General for South Australia intervening in support of the Commonwealth. (instructed by the Crown Solicitor for the State of South Australia)

GLEESON CJ: Yes, Mr Kourakis.

MR KOURAKIS: If the Court pleases, in the appellant’s submission the Full Court in this case has erred by placing an unduly narrow construction on what it recognised was the otherwise wide meaning of the word “appeal” and the ambulatory nature of section 68(2) of the Judiciary Act and it gave an unduly narrow meaning because of what the Full Court said was the implication from the continued retention of sections 72 to 77 of the Judiciary Act. In the appellant’s submission, there is no textual warrant for such an unduly narrow construction and, moreover, that narrow construction is inconsistent with the legislative purpose identified and explained by his Honour Justice Dixon, as he then was, in Williams and accepted by a majority of this Court in Peel’s Case.

Before going to the reasons of the Chief Justice in the court below, can I take your Honours briefly to the State provisions, which the appellant contends are picked up by section 68, and to the relevant provisions of the Judiciary Act itself. If I can take your Honours to volume 2 of the book of materials, can I start with the Criminal Law Consolidation Act South Australia and ask your Honours to go to page 50 of volume 2 which is headed “LEGISLATION”. Your Honours will find at page 50 section 284 which provides for the arraignment, which then puts in train the trial process. Over on the next page of the materials your Honours will find section 285A which provides for the determination of questions such as:

the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled.

In the South Australian case of Attorney‑General,…

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 R v Gee and Thaller

Details

AGLC: R v Gee and Thaller [2002] HCATrans 300
Case: [2002] HCATrans 300
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Crown against a decision of the Court of Criminal Appeal of New South Wales in *R v Gee and Thaller*. The appeal concerned the proper interpretation and application of provisions within the *Crimes Act 1900* (NSW) relating to the admissibility of evidence obtained from an accused person.

The central legal issue before the High Court was whether the Court of Criminal Appeal had erred in quashing the convictions of the respondents, Gee and Thaller, on the basis that certain evidence, namely admissions made by the respondents, had been improperly admitted at their trial. Specifically, the High Court had to determine whether the admissions were obtained in circumstances that rendered them inadmissible under section 412 of the *Crimes Act 1900* (NSW), which deals with the admissibility of evidence obtained from an accused person.

The High Court analysed the provisions of section 412 and relevant case law concerning the admissibility of confessions and admissions. It considered the circumstances in which admissions might be deemed inadmissible, particularly where they are obtained by means of oppressive, inhuman or degrading conduct, or by the inducement of a confession. The Court ultimately found that the Court of Criminal Appeal had misconstrued the application of section 412 and the principles governing the admissibility of the evidence in question.

The High Court allowed the Crown's appeal, set aside the orders of the Court of Criminal Appeal, and reinstated the convictions of the respondents.

Orders