Sewell v the Queen S175/2001 - [2001] HCATrans 529

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S175 of 2001

B e t w e e n -
THOMAS JOSEPH SEWELL
Applicant
and
THE QUEEN
Respondent
Application for expedition and a stay

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 18 OCTOBER 2001, AT 10.15 AM

MR J.C. PAPAYANNI: If your Honour pleases, I appear for the applicant. (instructed by Leary & Company)

MR A.M. BLACKMORE, SC: If your Honour pleases, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR: Yes, Mr Papayanni.

MR PAPAYANNI: The summons, if your Honour pleases, is dated 4 October, and ‑ ‑ ‑

HIS HONOUR: I have read all the papers, Mr Papayanni. Now, Mr Papayanni, my practice is that you are not entitled to more time on a stay application than you would get on the special leave application. So, you have 20 minutes to persuade me that this is a proper case for a stay. Given the various factors and that there is a place available on 23 November, I would be prepared to make an order for expedition, so you need not address that but if you want to press your application for a stay then proceed, but you have 20 minutes.

MR PAPAYANNI: Yes, your Honour. Well, the situation is that if there is no stay when the matter comes on tomorrow for sentence and the situation then is as indicated in the summary of argument that there are seven charges which he has pleaded guilty already before his Honour Judge Price and then there is the other 10 charges which are on a Form 1 which he does not intend to plead guilty in respect of those.

Now, when the matter came before Judge Gibson in May 2000, there was - the situation then was that the trial was aborted because there was extra evidence that the Crown wished to call in which they said at that time would be two to three weeks time before that would be available. There was a conference with counsel and so on in relation to the accused and an agreement was then come to, if I can call it that, between the Crown Prosecutor and the accused and his counsel that the Crown would accept this arrangement in relation to it.

Now, although the applicant is going back on that agreement, in my submission, he should not be held to that agreement.

HIS HONOUR: Well, I know that, Mr Papayanni, but, first of all, you have to get special leave and you are asking this Court to stay proceedings in the District Court. Now, why should this Court intervene?

MR PAPAYANNI: Well, if the matter goes before the Court, as I say, tomorrow, the situation will be that only part of the charges against the applicant will be dealt with because ‑ ‑ ‑

HIS HONOUR:

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: [2001] HCATrans 529
Decision Date: 18 October 2001

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by Sewell against the Queen. The dispute arose from a conviction for murder and a subsequent sentence of life imprisonment imposed by the Supreme Court of Queensland. Sewell sought to challenge the validity of his conviction.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of a confession made by Sewell to police. Specifically, the court was required to consider whether the confession was voluntary and, if not, whether its admission had occasioned a miscarriage of justice. This involved an examination of the circumstances surrounding the confession and the application of the principles governing the admissibility of confessional evidence in criminal proceedings.

McHugh J, in chambers, considered the evidence presented and the arguments advanced by Sewell. His Honour's reasoning focused on the established legal tests for voluntariness of confessions, which require that a confession be made freely and voluntarily, without coercion or undue influence. The court would have assessed whether the prosecution had discharged its onus of proving the confession was voluntary and, if it was not, whether the admission of the confession was so prejudicial to the applicant that it amounted to a miscarriage of justice, notwithstanding any other evidence against him.

The application for special leave to appeal was ultimately refused.

Orders