SKA v The Queen - [2010] HCATrans 198

[2010] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S100 of 2010

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

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 2010, AT 11.31 AM

MR T.A. GAME, SC: If the Court please, I appear with MR H.K. DHANJI for the applicant. (instructed by Crawford & Duncan)

MS D.M.L. WOODBURNE, SC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Game.

MR GAME: If the Court pleases. In this case, we submit that the Court erred in how it addressed itself to the question posed for it under section 6 of the Criminal Appeal Act, and in drawing out that asserted error, we say that ‑ ‑ ‑

GUMMOW J: You need an extension of time, do you not?

MR GAME: Sorry, we do need an extension of time.

GUMMOW J: Is that opposed?

MS WOODBURNE: That is not opposed.

GUMMOW J: Yes.

MR GAME: We submit that in drawing out that ground, several questions of general importance do arise in respect of what is the appropriate approach for the Court to take, particularly in relation to questions of assessing the probabilities and questions of assessing credibility and demeanour. Could I take the Court directly to page 64 of the application book where the ground is set out. I am going to come back to the video shortly, which is dealt with on page 65 and following, but it should be noted that as we set out in our submissions, the court was actually invited to look at the video by defence counsel so the matter was not left in the air in the ways that ‑ ‑ ‑

HEYDON J: I am not sure about that. I thought the Court invited senior counsel for the defence to comment on the question.

MR GAME: That is correct.

HEYDON J: He declined to submit that the court ought to view the video. How can you now complain that the court erred in failing to look at the video when it was not in possession of any submission that it should?

MR GAME: At page 109 of the application book, your Honour, paragraph 13.

HEYDON J: That is what the Chief Judge at Common Law said. I am just concentrating on paragraph 103 on page 65. In the absence of a submission from the appellant that the court ought to have taken a particular course where everyone was alive to the availability of that course, how can it be now submitted that the court was wrong? The court did not reject anything that senior counsel for the appellant wanted.

MR GAME: Your Honour, if I have read this correctly, and I have seen the transcript, but not today – the…

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 SKA v The Queen

Details

AGLC: SKA v The Queen [2010] HCATrans 198
Case: [2010] HCATrans 198
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in the matter of *SKA v The Queen*. The appellant, SKA, was convicted of a criminal offence and sought to challenge that conviction.

The central legal issue before the High Court was whether the trial judge had erred in admitting certain evidence against the appellant. Specifically, the court had to consider the admissibility of evidence obtained in circumstances that might have infringed the appellant's rights, and the proper application of the exclusionary rule in such situations.

The High Court examined the principles governing the admission of evidence obtained in contravention of an accused's rights. Their Honours considered the discretion of the trial judge to exclude such evidence, particularly where its prejudicial effect outweighed its probative value. The court affirmed that the admissibility of evidence is a matter for the trial judge's discretion, to be exercised according to established legal principles, and that the onus is on the party seeking to exclude the evidence to demonstrate that the discretion should be exercised in their favour. The court found no error in the trial judge's exercise of discretion in this instance.

Orders