R v Rohan (a pseudonym) - [2023] HCATrans 132

[2023] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M33 of 2023

B e t w e e n -
THE KING
Appellant
and
ROHAN (A PSEUDONYM)
Respondent

GAGELER J
GORDON J
EDELMAN J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 2023, AT 9.45 AM

MS E.H. RUDDLE, KC: May it please the Court, I appear with my learned friend MS J.B. WARREN for the appellant. (instructed by Solicitor for Public Prosecutions (Vic))

MR T. KASSIMATIS, KC: May it please the Court, I appear with my learned friend MS G.F. CONNELLY on behalf of the respondent. (instructed by Greg Thomas Barrister & Solicitor)

GAGELER J: Ms Ruddle.

MS RUDDLE: May it please the Court. This appeal turns on the interpretation of section 323(1)(c) of the Crimes Act, which provides a person is involved in an offense if he or she:

enters into an agreement, arrangement or understanding with another person to commit the offence –

and then, pursuant to section 324(1) of the Crimes Act:

a person who is involved in the commission of the offence is taken to have committed the offence –

The key question for this appeal, in our submission, is the meaning of the words “enters into an agreement, arrangement or understanding . . . to commit the offence”.

GAGELER J: Well, the key question is the meaning of the word “offence” in subsection (1) of 323, is it not?

MS RUDDLE: Sorry, your Honour?

GAGELER J: The key question is as to the meaning of the word “offence” within that collocation.

MS RUDDLE: Yes, your Honour, save that, in our submission, the use of the entire phrase in both subsection (1)(a) and (1)(c) needs to be considered, not just the word “offence” alone. Your Honours will find the relevant sections at page 21 of volume 1, part A of the joint book of authorities. It is the submission of the appellant that these sections were intended in some ways to codify, and in some ways to limit, the common law affecting joint criminal enterprise and aiding and abetting. Specifically, it is the submission of the appellant that, when one looks at section 323(1)(a), that is intended to cover – essentially codify – the concepts relating to aiding, abetting, counselling and procuring. Section 323(1)(c), that is:

enters into an agreement, arrangement or understanding with another person to commit the offence –

was intended to codify and cover group activities such as acting in concert, joint criminal enterprise and common purpose, whereas sections 323(1)(b) and (d) create an extension of liability different in scope to the common law.

In order to answer the question posed by this appeal, consideration, in our submission, must be given to the law prior to the enactment of these sections. Prior to the enactment of these sections, whilst aiding and abetting was partially codified in the old section 323,…

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 Rohan (a pseudonym)

Details

AGLC: R v Rohan (a pseudonym) [2023] HCATrans 132
Case: [2023] HCATrans 132
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Rohan (a pseudonym) against his conviction for a serious criminal offence. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The primary legal issue before the High Court was whether the evidence in question had been obtained in contravention of Rohan's legal rights, and if so, whether it should have been excluded from his trial under the principles governing the admission of improperly or illegally obtained evidence. This involved an examination of the relevant statutory provisions and common law principles governing police powers and the admissibility of evidence.

The Court's reasoning focused on the proper application of the exclusionary rule, particularly in circumstances where police conduct may have infringed upon an individual's rights. The judges analysed the nature of the alleged contravention and considered the balance between the probative value of the evidence and the prejudice it might cause to the accused, as well as the seriousness of the impropriety in obtaining the evidence. The Court affirmed that the discretion to exclude improperly obtained evidence is a significant safeguard against unlawful police conduct.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders