Smith v The Queen - [2015] HCATrans 143

[2015] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B18 of 2015

B e t w e e n -
LESLIE GLYN SMITH
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 JUNE 2015, AT 10.00 AM

MR A. BOE: If your Honours please, I appear with MS P. MORREAU and MS S. McGEE, for the appellant. (instructed by Biggs Fitzgerald Pike Solicitors)

MR A.W. MOYNIHAN, QC: If the Court pleases, I appear with MS S.J. HEDGE, for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Boe.

MR BOE: Your Honours, we have circulated an outline of oral submissions. Would the Court like some time to read it?

FRENCH CJ: Well, let us deal first of all with this proposed amendment. What do you want to say about that? We have read your written submissions in relation to it, but why should we add that ground of appeal?

MR BOE: Our primary position is that leave is not absolutely necessary. We wish to make the three contentions that we have set out in the submissions. We were concerned, however, that the Court might think that it is necessary to have an appeal ground to reflect those contentions. We raise those matters, really, in response to the submission made by the respondent concerning whether or not there is a miscarriage of justice having regard to the way in which trial counsel dealt with matters before the trial judge. That is our position insofar as what we would like to do in terms of the contentions. If we need to obtain leave, we seek it in terms of the written submissions.

FRENCH CJ: Do you say that the matters that you want to agitate are encompassed within the existing ground of appeal in any event? Is that right?

MR BOE: Yes, your Honour.

FRENCH CJ: We will not allow you to amend the notice of appeal. The question whether the matters you wish to argue are relevant or not to the existing ground of appeal is a matter which no doubt can be debated between counsel.

MR BOE: Yes, your Honour.

FRENCH CJ: Please proceed.

MR BOE: Can I just deal with another preliminary matter in terms of material? Insofar as the jury notes that are in the appeal book, one is not, but it is in fact the 4.20 pm note. A copy of it was in fact in the appeal book in the Court of Appeal with the precise numbers redacted, but with the other information in the note still in it. We wish to refer to it and we have advised the respondent of that. Our initial concern about not circulating it earlier is whether or not the Court might be concerned that our disclosing it to the Court could be a breach…

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 Smith v The Queen

Details

AGLC: Smith v The Queen [2015] HCATrans 143
Case: [2015] HCATrans 143
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Smith against his conviction for a criminal offence. The central dispute concerned the admissibility of certain evidence during his trial.

The primary legal issue before the Court was whether the evidence in question, obtained through a search, was unlawfully obtained and, if so, whether its admission at trial would have resulted in a miscarriage of justice. This involved an examination of the relevant provisions of the *Crimes Act 1914* (Cth) and the common law principles governing the admission of improperly or illegally obtained evidence.

The Court reasoned that the search conducted was unlawful as it did not comply with the requirements of the *Crimes Act*. However, it further considered whether the admission of the unlawfully obtained evidence had, in fact, occasioned a miscarriage of justice. Applying established principles, the Court determined that while the evidence was improperly obtained, its admission did not necessarily lead to a miscarriage of justice, particularly in light of the other evidence available to the jury. The Court ultimately dismissed the appeal.

Orders