Stewart v The Queen; Piper v The Queen - [1994] HCATrans 377

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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

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

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…

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.

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Details

Case: [1994] HCATrans 377
Decision Date

CaseChat Overview and Summary

These proceedings before the High Court of Australia concerned applications for special leave to appeal by the applicants, Stewart and Piper. The applicants sought to challenge decisions of the Full Court of the Supreme Court of Victoria.

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