Smith v The Queen - [2022] HCATrans 233

[2022] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B34 of 2022

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

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 1.30 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.C. HOLT, KC appears with MS Z.G. BRERETON for the applicant. (instructed by Owens & Associates)

MR C.W. HEATON, KC appears with MR C.W. WALLIS for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Mr Holt.

MR HOLT: May it please the Court. We require an extension of time, which my learned friend advises is not opposed by the Crown.

GAGELER J: Very well. You may proceed.

MR HOLT: Thank you, your Honour. This case deals, of course, with the parity principle which was last considered on our researchers by this Court in Green in 2011. As we have set out in the application, since Green, the approach to that principle – that is, to the parity principle – has taken different paths – quite diametrically opposed paths – in different States on a central question of how far an intermediate appellate court can reduce a sentence to comply with the parity principle.

As we have set out in Western Australia, New South Wales, Tasmania and the Northern Territory, what we respectfully submit is the correct position based on Green has been adopted; that is, that a sentence can be reduced to a level which would otherwise be manifestly inadequate, so long as it is not – to use the words this Court adopted in Green, taken from Chief Justice Street – an affront to justice, whereas, in Queensland and Victoria – sorry, your Honours, we appear to ‑ ‑ ‑

GAGELER J: I can hear you again now.

MR HOLT: Thank you, your Honour, we can now hear and see you. I apologise.

I had indicated the position that had been taken in Western Australia, New South Wales, Tasmania and the Northern Territory, consistent in our submission with Green. In Queensland and Victoria, quite straightforwardly, a very different approach has been taken; that is, that it is not appropriate to reduce a sentence, to comply with the parity principle, to one which is manifestly inadequate. And, in our submission, even just that question alone with such a significant distinction between intermediate appellate courts on an important question of principle warrants special leave. We understand the respondent’s position ‑ ‑ ‑

GAGELER J: Do we actually get to that question?

MR HOLT: I was just going to address that, your Honour. There are two reasons why we say that we do get to that question. The first is because there is, in our respectful submission,…

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 [2022] HCATrans 233
Case: [2022] HCATrans 233
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 impact of that evidence on the fairness of the proceedings.

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 proper application of the exclusionary rule in Australian criminal law, particularly where evidence is obtained in contravention of statutory or common law protections. The court also considered whether, even if the evidence was improperly admitted, its admission had occasioned a substantial miscarriage of justice.

Gageler and Steward JJ, in their joint judgment, analysed the principles governing the admission of improperly obtained evidence. They affirmed that the court has a discretion to exclude such evidence if its prejudicial effect outweighs its probative value, or if its admission would be unfair to the accused. However, they also emphasised that this discretion is not unfettered and must be exercised in accordance with established legal principles. The judges found that, in this instance, the evidence, whilst potentially obtained in questionable circumstances, was not so prejudicial as to outweigh its probative value, nor was its admission demonstrably unfair to the applicant. Consequently, the court determined that no substantial miscarriage of justice had occurred.

Orders