R v LK; R v RK - [2009] HCATrans 310

[2009] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S162 of 2009

B e t w e e n -
THE QUEEN
Appellant
and
LK
Respondent

Office of the Registry
Sydney No S163 of 2009

B e t w e e n -
THE QUEEN
Appellant
and
RK
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 DECEMBER 2009, AT 10.16 AM

__________________

MR T.A. GAME, SC: If the Court please, I appear for the appellant with MR H.K. DHANJI in both appeals. (instructed by Commonwealth Director of Public Prosecutions)

MR J.S. STRATTON, SC: May it please the Court, I appear with MR P.G. HOGAN and MR A.M. WEBB in the matter of LK. (instructed by Hanby & Associates)

MR T.E.F. HUGHES, QC: May it please, your Honours, I appear with my learned friends, MR M.R. GRACIE and MR B.C. KASEP, for the respondent, RK. (instructed by Mee Ling, Solicitors)

MR S.J. GAGELER, SC, (Solicitor‑General of the Commonwealth of Australia): If the Court pleases, I appear with MR G.M. AITKEN and MS P. McDONALD for the Attorney‑General of the Commonwealth intervening in both appeals on ground 2 of the notice of contention. (instructed by Australian Government Solicitor)

MR J.G. RENWICK: May it please, your Honours, I appear with MS G.E. WRIGHT for the Attorney‑General for New South Wales, intervening on the same basis as the Commonwealth. (instructed by Crown Solicitor (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases, the reprint which I will refer to principally is Reprint No 2. If I could commence by taking your Honours to the offence charged and then I will give your Honours a brief history of what occurred in these proceedings before coming to the question of statutory interpretation involved. First of all, if your Honours look at the reprint, section 400.3(2) is the offence which it was alleged that the two respondents conspired with each other and others to commit and it is (2)(b)(i), that is to say:

the money or property is proceeds of crime . . .

(c)the person is reckless as to the fact that the money or property is proceeds of crime ‑

is the fault element for that particular physical element in terms of the Code, which I will explain in a little detail as events unfold. Perhaps your Honours could also just notice, before leaving this provision, section 400.3(1) is the more serious offence. It carries 25 years, whereas the other carries 12 years. But it has as an element, a physical element, that the money or property is proceeds of crime and it has as the fault element for that physical element that the person believes it to be the proceeds of the crime. That is not the offence charged in this case.

Now, just before…

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: [2009] HCATrans 310
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by two accused, R v LK and R v RK, against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert surveillance, specifically recordings made by listening devices planted in the applicants' homes. The applicants argued that the use of this evidence was an abuse of process and that the trial judge erred in admitting it.

The High Court was required to determine whether the admission of the recordings constituted an abuse of process, thereby rendering the convictions unsafe. This involved considering the scope of the court's power to stay proceedings or exclude evidence in such circumstances, and the principles governing the exercise of that discretion. The Court also had to assess whether the evidence, if admitted, was so prejudicial as to outweigh its probative value.

The Court reasoned that while the use of listening devices was a serious matter, the admissibility of evidence obtained through such means was governed by established legal principles, not solely by the broad concept of abuse of process. The relevant test for exclusion of evidence, particularly in criminal matters, is whether its probative value is outweighed by the danger of unfair prejudice to the accused. The Court found that the trial judge had properly applied this test, carefully weighing the prejudicial effect of the recordings against their significant probative value in establishing the applicants' involvement in the murders. The Court concluded that the admission of the evidence was not an abuse of process and did not render the convictions unsafe.

The appeals were dismissed.

Orders