Reg v Swaffield- Pavic v The Queen - [1997] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 1996

B e t w e e n -
THE QUEEN
Appellant
and
JASON ROY SWAFFIELD
Respondent

Office of the Registry
Melbourne No M13 of 1997

B e t w e e n -
STEVEN FRANCIS PAVIC
Appellant
and
THE QUEEN
Respondent

BRENNAN CJ

TOOHEY J
GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 1997, AT 10.24 AM

(Continued from 24/6/97)

__________________________________

BRENNAN CJ: Yes, Mr Grace.

MR GRACE: Thank you, your Honour.

BRENNAN CJ: Mr Grace, before you commence your argument this morning, in the light of the submissions that you made yesterday and in the light of some of those that were made before you rose yesterday, the question arises whether the present formulation of the rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of the question of admissibility as turning, first, on the question of voluntariness; next, the question of exclusion, which might be based on considerations of reliability; and, finally, an overall discretion which might appropriately take account of all the circumstances of the case in order to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable having regard to contemporary community standards. Now, it is just a question of whether or not any such approach is one that you would contemplate as being appropriate and, if so, how it would operate in relation to the facts in the present case.

MR GRACE: Yes, I would submit that such an approach would be appropriate and that it could operate in the circumstances of the present case to enliven the discretion, firstly, and to see it is exercised in favour of the exclusion of the evidence. The trend towards this approach has been apparent, it is submitted, in a number of recent

decisions of this Court commencing with your Honour the Chief Justice’s comments in Duke and your Honour Justice Toohey’s comments in Duke, following through into Foster, and I will take your Honours to those extracts shortly.

It is also remarked upon by his Honour the President of the Court of Appeal of Queensland, Justice Fitzgerald, in his judgment, albeit dissenting, in O’Neill and touched on also in Davidson & Moyle, but perhaps the commencing point for consideration of the issues may be Duke and then I will take your Honours to Foster. The relevant extracts in Duke from the judgments appear at page 513 where your Honour the Chief Justice commented upon reliability or unreliability of being only one factor that is relevant in consideration of the exercise of the fairness or unfairness discretion and that is made clear at point 4 on page 513 of the judgment which appears in 180 CLR…

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 Reg v Swaffield- Pavic v The Queen

Details

AGLC: Reg v Swaffield- Pavic v The Queen [1997] HCATrans 173
Case: [1997] HCATrans 173
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeals of Reg Swaffield and Pavic against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through a search warrant executed under the *Crimes Act 1914* (Cth) and the subsequent use of that evidence at trial.

The primary legal issue before the Court was whether the evidence obtained from the search of Swaffield's premises was unlawfully obtained, and if so, whether it should have been excluded from the trial proceedings under the principles governing the admission of illegally or improperly obtained evidence. A related issue was whether the trial judge had erred in admitting the evidence.

The Court analysed the provisions of the *Crimes Act 1914* (Cth) relating to search warrants, particularly the requirement for reasonable grounds to believe that an offence has been, or is suspected on reasonable grounds to have been, committed. The judges considered the application of the exclusionary rule, which requires the exclusion of illegally obtained evidence unless the probative value of the evidence outweighs the impropriety of its obtaining. The Court ultimately found that the search warrant was validly issued and executed, and therefore the evidence obtained was lawfully obtained and admissible.

The appeals were dismissed.

Orders