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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M114 of 1993 B e t w e e n -
BRIAN JOHN STEWART
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Melbourne No M116 of 1993 B e t w e e n -
GARY EDWARD PIPER
Applicant
and
THE QUEEN
Respondent
| Stewart | 1 | 10/6/94 |
Applications for special leave
to appeal
MASON CJ DAWSON J GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 11.47 AM
Copyright in the High Court of Australia
| MR H.J. KABLE. QC: | May it please the Court, together with |
my learned friend, MR. D. GRACE, I appear for the
applicant Stewart, (instructed by Grace Partners)
and for the applicant Piper. (instructed by
Patrick w. Dwyer)
| MR B.D BONGIORNO, QC: | I appear with MS C.D. DOUGLAS for |
the Crown in each matter. (instructed by the Director of Public Prosecutions (Victoria))
MASON CJ: Yes, Mr Kahle.
| MR KABLE: | May it please the Court, in order to emphasize |
the point that we submit warrants the grant of
special leave, could I invite Your Honours'
attention to page 222 of volume 2, which is page 17
of the joint judgment of Their Honours
Justices Marks and Harper, and in particular to the
paragraph commencing "If necessary". Could I
invite Your Honours to read that paragraph to
yourselves.
GAUDRON J: That is not, of course, what the trial judge
did, is it?
| MR KABLE: | We would say that the trial judge failed to |
exercise the discretion relating to the weighing of
the prejudicial effect of the evidence against the
probative value and I would take Your Honours to
his ruling in a moment in order to support that
contention. But what we say is that the Full
Court, in the first and the third sentences in that
paragraph are, with respect to Their Honours,
demonstrably wrong and not in accordance with this
Court's judgment in Domican. And we say that error, and the importance of it, is highlighted by
the Crown's submission in this matter, and I take
Your Honours to page 284 of book 2 and to the
submission appearing under the words "Ground (c)"
which, so it would seem, we would say, from a
reading of that argument that the Crown's view of what the Full Court held is equally wrong and that
becomes important when considering whether or not
the decision of the Full Court is in fact authority
for that erroneous proposition. I will come back in a moment to deal with the ruling of the learned
trial judge.
We would say that in order to appreciate how
wrong the majority of the Full Court's judgment was
can I take Your Honours to page 226 and invite
Your Honours' attention to that page and, in
particular, beginning at line 3 to the bottom of
the page, where Their Honours seem to be saying,
with respect to them, that this Court's decision in
Domican was…
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- Case
- [1994] HCATrans 377
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the Full Court had erred in its interpretation and application of the principles established by this Court in *Domican* regarding the admissibility of evidence. Specifically, the applicants contended that the trial judge failed to properly exercise discretion to exclude evidence where its prejudicial effect outweighed its probative value, and that the Full Court's judgment was demonstrably wrong in its articulation of these principles.
The applicants argued that the trial judge did not adequately consider the discretion to exclude evidence if its prejudicial effect outweighed its probative value, or if the evidence was "irrationally impressive." They submitted that the Full Court's reasoning, particularly in certain sentences of its joint judgment, was contrary to the unambiguous statements in *Domican*. The applicants also pointed to the Crown's submissions as suggesting a misunderstanding of the Full Court's holding, further highlighting the potential for an erroneous proposition to be established as authority. The discretion to exclude evidence was sought to be activated on two bases: unfairness to the accused due to the circumstances surrounding the viewing of suspects, and the balancing of prejudicial effect against probative value.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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