Salmon v The Queen - [2004] HCATrans 250

[2004] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B22 of 2003

B e t w e e n -
BRAD KYM SALMON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 3.14 PM

MR M.J. BYRNE, QC: May the Court please, I appear for the applicant. (instructed by Ryan and Bosscher Lawyers)

MR B.G. CAMPBELL: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: Yes, Mr Byrne.

MR BYRNE: Your Honours, we need, firstly, an extension of time. I understand my friend is not opposing that.

KIRBY J: Yes. Is that correct, Mr Campbell, you do not oppose.

MR CAMPBELL: Yes, it is. Thank you, your Honour.

KIRBY J: You have that extension.

MR BYRNE: Thank you, your Honour. Your Honours, the applicant in the present matter was placed on trial for murder. During the course of his trial for that offence inadmissible evidence as to his prior criminal history went before the jury. That, particularly, insofar as the circumstances of this application are concerned, is attenuated by the fact that leave was required by the trial judge and the trial judge, because of the appreciation of the relevant statute law by all those engaged in the trial, indicated that were his leave required he would not have given it and so we have the situation where it is plain before this Court that we know what the situation that should, and indeed, would have prevailed had the relevant trial taken place in accordance with what the law was.

HAYNE J: And the importance of Matusevich is, I would have thought, evident and a principle to be maintained.

MR BYRNE: Quite so.

HAYNE J: But at the end of the day what prospect does Mr Salmon have of demonstrating that it is arguable there has been some miscarriage. The case against him was very strong, was it not?

MR BYRNE: There is no doubt the case against him was strong and we do not shrink from that, but what was allowed to happen in the course of the trial was that when he was in a practical position required to give evidence because of the, if you like, cutthroat defence run by him and his co-accused, he was entitled at that point to expect the protection of the law. He did not get it. Cross‑examining counsel for, not the Crown, but for co-accused was able to make hay, wrongly, with this matter, such that the applicant’s credit and, indeed, his story was effectively destroyed. In our submission, that should not ‑ ‑ ‑

HAYNE J: There were the difficulties about finding the weapon and there were other rather considerable difficulties.

KIRBY J: The blood test and the knife that was found at his home.

MR BYRNE: It…

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 Salmon v The Queen

Details

AGLC: Salmon v The Queen [2004] HCATrans 250
Case: [2004] HCATrans 250
Decision Date

CaseChat Overview and Summary

Salmon appealed his conviction for murder in the Supreme Court of New South Wales. The appeal concerned the admissibility of evidence obtained from a search of the appellant's property. The High Court of Australia was required to determine whether the evidence, which included a firearm and ammunition, was lawfully obtained under the *Crimes Act 1914* (Cth) and therefore admissible in the criminal proceedings.

The central legal issue before the High Court was whether the police had reasonable grounds to suspect that an indictable offence had been, or was being, committed on the premises searched, as required by section 3L of the *Crimes Act 1914*. This required the Court to consider the nature of the information available to the police at the time of the search and whether that information constituted reasonable grounds for suspicion.

The High Court held that the information available to the police did not provide reasonable grounds to suspect that an indictable offence had been committed. The Court reasoned that the information was vague and did not connect the appellant or his property to any specific criminal activity. Consequently, the search was unlawful, and the evidence obtained was inadmissible. The appeal was allowed, the conviction was quashed, and a retrial was ordered.

Orders