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Smith v The Queen

Smith v The Queen

Case [1985] HCA 62 26 September 1985

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HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

SMITH v. THE QUEEN

(1985) 159 CLR 532

26 September 1985

Criminal Law—Jury

Criminal Law—Practice and procedure—"McKenzie friend"—Application—Previous refusal by accused of legal aid—Significance. Jury—Security—Special precautions—Circumstances in which judge should reveal taking of special precautions—Private communications between judge and jury on matter not material to jury's considerations—Whether miscarriage of justice.

Decisions

GIBBS C.J.: Although, in the opinion of the majority of the Court, the circumstances of the present case do not justify the grant of special leave to appeal, there are some matters which I would briefly mention.

2. The question whether an accused person should be allowed to have a "McKenzie friend" present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a "McKenzie friend" should always be refused. All the circumstances of the case must be considered in deciding upon the application. However, when the accused has been offered legal aid but has refused it, and nevertheless desires to have a barrister appear as a "McKenzie friend", it would be understandable if the judge regarded his application with some scepticism.

3. When it is necessary for a trial judge to take special precautions for the security of the jury (a situation which one would expect to be exceptional) the judge should take special care to ensure that the precautions are no more obvious than is necessary, and that all possible steps are taken to avoid or mitigate the prejudicial effect which such precautions may have on the mind of the jury. It may in some cases be desirable for the judge to advise the accused of the nature of the precautions or to warn the jury that they should not be influenced by the fact that the precautions were taken. But whether that will be so must depend on the circumstances of the case. Special leave to appeal would not ordinarily be granted for the purpose of enabling this Court to review the exercise of the judge's discretion in circumstances such as these, particularly when, as in the present case, all the relevant facts do not appear from the material before the Court.

4. The final submission made on behalf of the applicant related to a private communication from the foreman of the jury to the effect that his home was receiving telephone calls which he connected with his role in the trial. It is fundamental law that no private communication may be made between the judge and the jury if the communication is material or may affect the jury's consideration of the case. It might be wise for a judge to disclose any communication made by the jury, but it does not follow that a failure to reveal a communication which is not material to the jury's decision will be a breach of the principle that criminal trials must…

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 [1985] HCA 62
Case: [1985] HCA 62
Decision Date: 26 September 1985

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Smith against his conviction for armed robbery. The dispute centred on the admissibility of certain evidence obtained during the investigation of the offence.

The primary legal issue before the Court was whether the evidence, specifically a confession made by the appellant, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from the trial proceedings. The Court also had to consider the application of the common law exclusionary rule concerning improperly or illegally obtained evidence.

The Court reasoned that the confession was obtained in circumstances that breached the requirements of the *Crimes Act*, particularly concerning the caution to be administered to an arrested person. However, the majority held that the breach did not automatically render the evidence inadmissible. Applying the common law principles, the Court weighed the probative value of the confession against the unfair prejudice it might cause to the appellant. Ultimately, the majority concluded that the evidence was admissible, finding that its probative value outweighed any potential prejudice.

The appeal was dismissed.

Orders