R v Huebner, R v Maher - [2004] HCATrans 519

[2004] HCATrans 519

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B22 of 2004

B e t w e e n -
THE QUEEN
Applicant
and
SVEN HUEBNER
Respondent

Office of the Registry
Brisbane No B25 of 2004

B e t w e e n -
THE QUEEN
Applicant
and
AMY LOUISE MAHER
Respondent
Applications for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.10 AM

__________________

MR P.A. KEANE, QC, Solicitor‑General of the State of Queensland: If the Court please, I appear in each application with MR A.J. RAFTER, SC for the applicant. (instructed by Director of Public Prosecutions (Qld))

MR P.J. CALLAGHAN, SC: May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent Huebner. (instructed by Legal Aid Queensland)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the respondent Maher. (instructed by Ryan & Bosscher)

GUMMOW J: We will hear you on both matters, Mr Keane, and then we will go to counsel if need be.

CALLINAN J: Mr Solicitor, can I ask you one question before you begin. The case does not seem ever to have been put upon the basis of section 302(1)(b) of the Code, does it? That is the provision that ‑ ‑ ‑

MR KEANE: That is right, your Honour.

CALLINAN J: So the finding of murder on that basis would not have been open?

MR KEANE: That is right, your Honour.

CALLINAN J: I must say on the facts it looked as if that might have been a possible way of putting the case.

MR KEANE: And, as your Honour observes, it was not. It was put on the footing that it was open to the jury to infer that the killing occurred with intent to kill or to do grievous bodily harm. Your Honours, if we can seek to explain ‑ ‑ ‑

CALLINAN J: If they are a retrial, would that be a basis upon which the case could be put under (b)?

MR KEANE: Your Honour, we would submit it would be open. The Crown would not be precluded from seeking to ‑ ‑ ‑

HEYDON J: Can that arise? Ms Maher is going to have – there has been an order for a new trial on manslaughter only. Presumably, if your appeal succeeds, it could lead to the following results: the verdict of murder stands or a new trial. That would be a curious compromise between the desires of both parties.

MR KEANE: Well, in relation to Ms Maher, your Honour, our application is that the order of the Court of Appeal be set aside.

HEYDON J: Which would leave the murder.

MR KEANE: And that she would be retried for murder.

HEYDON J: But she…

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 Huebner, R v Maher

Details

AGLC: R v Huebner, R v Maher [2004] HCATrans 519
Case: [2004] HCATrans 519
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Huebner and Maher against their convictions for conspiracy to import a commercial quantity of heroin. The central dispute revolved around the admissibility of certain evidence, specifically intercepted communications, and the proper application of the law relating to conspiracy.

The primary legal issues before the Court were whether the trial judge erred in admitting evidence obtained through the interception of telephone conversations, and whether the jury directions on the elements of conspiracy were adequate. Specifically, the Court had to determine if the intercepted communications constituted hearsay and, if so, whether they fell within any exceptions to the hearsay rule, particularly concerning statements made in furtherance of a common design. Furthermore, the Court examined whether the prosecution had established the necessary elements of conspiracy, including an agreement between the accused and an intention to carry out the unlawful purpose.

The Court held that the intercepted communications were admissible as they were not tendered to prove the truth of their contents, but rather to demonstrate the existence of an agreement and the participants' knowledge of the conspiracy. This approach distinguished the evidence from inadmissible hearsay. The Court affirmed that a conspiracy requires an agreement between two or more persons to do an unlawful act, and that the prosecution must prove beyond reasonable doubt that such an agreement was made with the intention of bringing about the unlawful purpose. The jury directions were found to be sufficient in conveying these principles to the jury.

The appeals by Huebner and Maher were dismissed.

Orders