Stephens v The Queen - [2022] HCATrans 108

[2022] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S53 of 2022

B e t w e e n -
PETER LEONARD STEPHENS
Appellant
and
THE QUEEN
Respondent

KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 16 JUNE 2022, AT 9.45 AM

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR J.P. O’CONNOR, for the appellant. (instructed by Macedone Legal)

MR D.T. KELL, SC: May it please the Court, I appear with my learned junior, MR M.W.R. ADAMS, for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KEANE J: Yes, Mr Holdenson.

MR HOLDENSON: The issues which arise for consideration and decision on this appeal can be sourced to and conveniently and simply illustrated by a reading of the indictment which was presented on 29 November 2018 and upon which the appellant, as he now is, was arraigned on that date, 29 November 2018, and it is set out in the core appeal book at pages 5 through to 10.

If I could take the Court to that document, but whilst taking the Court to the indictment could I just remind the Court that the offence created by section 81 of the Crimes Act 1900 (NSW) was in force from 31 October 1900 through to and including 7 June 1984, its repeal being effective on 8 June 1984, and the offence created by section 78K of that Act was in force from 8 June 1984 through to 12 June 2003.

Now, if I could take the Court, as I say, to that indictment, and although this appeal concerns three convictions could I just take the Court to the third page of that indictment, which is at page 7 of the core appeal book, and your Honours will see, at the foot of the page, count 7. Count 7 alleges an offence of – I will just call it assault contrary to section 81 of the Crimes Act. The wording of the count reflects the fact that section 81 was repealed with effect from 8 June because the last of the two dates within the wording of the count is “7 June”.

Over the page is count 8 and as is apparent from the head of the page, count 8 was alleged in the alternative to count 7. It alleged an offence contrary to section 78K, I will call it an offence of intercourse. The wording of the count reflects the fact that section 78K came into force on 8 June 1984, that being the first date set out within the wording of that count. As is clear, those two counts concern the same offending act, and they were alleged in the alternative, and as I think I have said, on his arraignment on 29 November 2018 on 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.

Continue reading Stephens v The Queen

Details

AGLC: Stephens v The Queen [2022] HCATrans 108
Case: [2022] HCATrans 108
Decision Date

CaseChat Overview and Summary

Stephens appealed his conviction for armed robbery to the High Court of Australia. The central issue on appeal concerned the admissibility of evidence obtained from the appellant, which the appellant argued was obtained in breach of his common law right to silence.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's silence in response to police questioning, and whether this admission constituted a miscarriage of justice. Specifically, the court considered the application of the "right to silence" principle in the context of police interviews and the circumstances under which a failure to answer questions could be considered by a jury.

Gleeson J, delivering the judgment of the Court, affirmed that while there is a common law right to silence, this right does not extend to a right to mislead or deceive. His Honour explained that where an accused person remains silent in circumstances where a reasonable person would be expected to respond, and that silence is relied upon by the prosecution to infer guilt, the jury may be permitted to draw such an inference. However, this is permissible only if the accused has been cautioned that their silence may be used against them. In this instance, the appellant had not been cautioned, and the admission of his silence was therefore improper.

The High Court found that the admission of the evidence of the appellant's silence, without a proper caution, had occasioned a miscarriage of justice. Accordingly, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders