Smith v The Queen - [2015] HCATrans 222

[2015] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2015

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

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 2015, AT 9.59 AM

MR P.M. STRICKLAND, SC: I appear with my learned friend, MS A.M. MITCHELMORE, for the applicant. (instructed by Legal Aid NSW)

MS N.F. NOMAN, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes.

MR STRICKLAND: Your Honours, could I just hand up a two‑page chronology that I wish to take the Court to?

BELL J: Yes.

MR STRICKLAND: Your Honours, first we do seek that the time limit under rule 41 be dispensed with. At application books 82 to 86 we have referred to the material.

BELL J: Yes. Any objection to that, Ms Noman?

MS NOMAN: No, there is not, your Honours.

BELL J: Yes, you have that leave.

MR STRICKLAND: Your Honours, the reason why special leave should be granted in this case is because there has been a miscarriage of justice. The Court of Criminal Appeal erred in refusing to admit fresh evidence of the applicant’s undertaking to assist and, had that evidence been admitted and properly taken into account, it would have resulted in a reduced sentence.

The fresh evidence that we sought to lead is identified in application book 222 with the exception of Mr Austin’s - if you add Mr Austin’s affidavit to that. The question of public importance in this case is that discounts for assistance are recognised generally in Australia. There is essentially the same test applied in all jurisdictions across Australia, that is, if it is in the interests of justice to receive fresh evidence where there has been a miscarriage of justice, appellate courts can entertain that evidence. So, there is an Australia‑wide application for this matter.

The point of public importance is where Crowns change their position on the significance of an undertaking by an applicant to give evidence, as they have in this case, it is a matter of public importance that any change of position should be recognised by an appellate court, provided that it is satisfied that the assistance is of some significance.

BELL J: It must depend on the circumstances, must it not?

MR STRICKLAND: Yes, indeed.

BELL J: Here, the contents of the induced statement were inconsistent with the statements that had been made to the undercover officer?

MR STRICKLAND: Yes.

BELL J: In some respects they might have assisted the case of the co‑accused because they downplayed, as it were, the significance of the sound of the fall. There were lively reasons to doubt the credibility of the statements in the induced statement. Is that fair?

MR STRICKLAND: It is fair to say that…

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: [2015] HCATrans 222
Decision Date

CaseChat Overview and Summary

In *Smith v The Queen*, the High Court of Australia considered an appeal by the applicant, Smith, against his conviction for a serious criminal offence. The dispute centred on the admissibility of certain evidence during his trial and the subsequent fairness of that trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that was obtained in circumstances that may have infringed the applicant's rights. This raised questions about the application of the exclusionary rule in Australian criminal law, particularly where evidence is obtained in contravention of statutory provisions or common law principles protecting individual liberties. The court also considered whether, even if the evidence was improperly admitted, its admission had occasioned a substantial miscarriage of justice.

Bell and Gageler JJ, in their joint judgment, analysed the principles governing the admission of evidence obtained in breach of an accused's rights. They affirmed that while there is no broad discretion to exclude evidence merely because it was obtained improperly, such evidence may be excluded if its admission would be unfair to the accused. The court emphasised that unfairness arises where the evidence, if admitted, would have a prejudicial effect on the minds of the jury that outweighs its probative value, particularly where the impropriety in obtaining the evidence is significant. Applying these principles, their Honours found that the admission of the evidence in question had not led to a substantial miscarriage of justice, as the evidence was highly probative and its prejudicial effect was not so significant as to render the trial unfair.

Consequently, the High Court dismissed the appeal and affirmed the conviction.

Orders