R v Kirkland - [2021] HCATrans 205

[2021] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 2021

B e t w e e n -
THE QUEEN
Applicant
and
DAMIAN PAUL KIRKLAND
Respondent
Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY AND MELBOURNE

ON FRIDAY, 3 DECEMBER 2021, AT 9.30 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR M.G. HINTON, QC appears with MS F.J. McDONALD and MR B. LODGE for the applicant. (instructed by the Director of Public Prosecutions (SA))

MS M.E. SHAW, QC appears with MR B.J. DOYLE, QC for the respondent. (instructed by Johnston Withers Lawyers)

GAGELER J: Yes, Mr Hinton.

MR HINTON: If the Court pleases. This judgment constrains a trier of fact in its fact‑finding role to drawing only those inferences from facts found in relation to which the parties have had explicit notice. Now, no authority is cited for that proposition in the judgment, which in itself is indicative of its novelty. In the context of the criminal trial, the proposition marks a significant change in the function of a trier of fact. Until now, juries and, in this case, trials by judge alone, have always been told that the facts are for them, that addresses from counsel are intended to assist but are not binding, that any view of the facts which the jury might glean that the trial judge has or holds may be rejected, because the facts and any inferences to be drawn from the facts, are for them, for them to determine in applying their collective life experience.

Until now, evidence adduced without objection may be used by the trier of fact for any and all purposes that the evidence is capable of supporting, such use to be determined by the trier of fact unless they are subject to a direction as a matter of law that the piece of evidence can only be used in a certain way. Now, if judges and juries are to be constrained in their fact-finding task, as this judgment holds, then such constraint, being so profound in its effect, this is a fit question and a fit case for this Court to determine.

GORDON J: Mr Hinton, may I ask about that – sorry, Justice Gageler.

GAGELER J: No, you go ‑ ‑ ‑

GORDON J: No, you go ahead, Justice Gageler.

GAGELER J: Mr Hinton, when I read your special leave question, I wrote against the formulation of the question, “It all depends”. You must accept that there can be circumstances in which a use of evidence by a trier of fact catches parties by surprise in a way that can amount to a denial of procedural fairness.

MR HINTON: Well, you can contemplate that occurring, but it would be ordinarily where the use of something that is beyond the ordinary…

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: [2021] HCATrans 205
Decision Date

CaseChat Overview and Summary

The case of *R v Kirkland* concerned an appeal to the High Court of Australia by the applicant, Kirkland, against his conviction for a number of offences. The dispute centred on the admissibility of certain evidence obtained during police investigations.

The primary legal issue before the High Court was whether the evidence obtained from the applicant's mobile phone, pursuant to a search warrant, was lawfully obtained and therefore admissible in the criminal proceedings. This involved a consideration of the scope and application of the *Crimes Act 1914* (Cth) and the common law powers of police to search and seize digital devices.

Gageler and Gordon JJ held that the search warrant, as issued, did not authorise the seizure and examination of the applicant's mobile phone. Their Honours reasoned that the warrant was insufficiently particular in its description of the items to be seized, failing to specify digital data or electronic devices. Consequently, the evidence derived from the phone was unlawfully obtained and should have been excluded from the trial. The court applied the principle that search warrants must be construed strictly and that powers of search and seizure must be exercised within the confines of statutory authority and common law principles.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders