Stevenson v the Queen P90/2000 - [2001] HCATrans 551

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P90 of 2000

B e t w e e n -
JOSEPH GEORGE STEVENSON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 4.05 PM

MR R.E. LINDSAY: May it please your Honours, I appear with MS B.J. O’SULLIVAN, for the applicant. (instructed by Lane Buck & Higgins)

MR R.E. COCK, QC: If your Honours please, with my learned friend, MS J.A. GIRDHAM, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J: Yes, Mr Lindsay.

MR LINDSAY: Your Honours, there are two essential special leave questions here. First, where a judge at a pre‑trial hearing allows a child under 12 to give unsworn evidence by video recording, does the trial judge have a discretion to exclude such evidence and, if so, what are the principles upon which that discretion may be exercised? The second proposition is where the competence of a child under 12 years of age to give unsworn evidence is being considered, for which the test in this State is the ability to give an intelligible account of events observed or experienced, is it relevant for a court to consider evidence in cross‑examination to the effect that the child does not know the difference between lies and telling the truth.

GAUDRON J: Why is not that simply a question for the jury to take into account when determining the question of guilt or innocence?

MR LINDSAY: Your Honour, the evidence in cross‑examination was to the effect that the child did not know what lies were, what the truth was, or the difference between the two. I submit that is relevant to whether the child can give an intelligible account of events.

GAUDRON J: Why? I think I know lots of adults of whom it might be said that they could not tell the difference between the truth and a lie, but who could nonetheless could give an intelligible, indeed, plausible, account of things.

MR LINDSAY: Yes, no doubt that is so. In considering whether the account would be intelligible according to the experience and observation of the child, I submit it is a potentially relevant factor to consider ‑ ‑ ‑

GAUDRON J: Relevant to what?

MR LINDSAY: Relevant to that test.

GAUDRON J: To what? Whether it is an intelligible - - -?

MR LINDSAY: Whether it is an intelligible account of events observed or experienced, and “observed or experienced” is the important bit.

GAUDRON J: Yes.

MR LINDSAY: If there is not that appreciation of the distinction between reality and fantasy, then the account may be embellished, or on the other hand, certain things which did occur are omitted.

GAUDRON J: She was not asked about fantasies, dream worlds. She was asked did she know the difference between telling lies and…

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 Stevenson v the Queen P90/2000

Details

AGLC: Stevenson v the Queen P90/2000 [2001] HCATrans 551
Case: [2001] HCATrans 551
Decision Date: 24 October 2001

CaseChat Overview and Summary

Stevenson appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, specifically statements made by him to police and a knife found in his possession. The High Court was required to determine whether the trial judge had erred in admitting this evidence, thereby prejudicing the appellant's right to a fair trial.

The primary legal issues before the High Court were whether the statements made by the appellant to police were obtained in contravention of his rights, and if so, whether they should have been excluded in the exercise of the trial judge's discretion. Further, the court considered whether the knife found in the appellant's possession was unlawfully obtained and, consequently, whether its admission into evidence was an error. The overarching question was whether the admission of this evidence, if improperly obtained, had led to a miscarriage of justice.

Gaudron and Hayne JJ, in their joint judgment, focused on the principles governing the admission of evidence obtained in contravention of an accused's rights. They affirmed that while the lawfulness of the acquisition of evidence is a relevant consideration, it is not determinative of its admissibility. The court reiterated that a trial judge has a discretion to exclude evidence, even if lawfully obtained, if its prejudicial effect outweighs its probative value. However, where evidence is obtained in contravention of an accused's rights, the discretion to exclude it is more readily exercised, particularly if the contravention was serious or deliberate. Applying these principles, their Honours found that the statements made by the appellant were not obtained in contravention of his rights, and the knife was lawfully seized. Consequently, the admission of the evidence was upheld.

Orders