Swan v The Queen - [2020] HCATrans 9

[2020] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S291 of 2019

B e t w e e n -
WILLIAM RODNEY SWAN
Appellant
and
THE QUEEN
Respondent

BELL J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2020, AT 9.45 AM

MS B.J. RIGG, SC: May it please the Court, I appear with my learned friend, MR T. QUILTER, for the appellant. (instructed by O’Brien Hudson Solicitors)

MR L.A. BABB, SC: May it please the Court, I appear with my learned friends, MS T.L. SMITH, SC and MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Ms Rigg. We have handed up, together with your outline, your proposed amended notice of appeal. It might be convenient to deal with that issue first, in circumstances in which the grant of leave is opposed.

MS RIGG: Yes. Your Honours, the proposed ground 3 is submitted to be appropriate for a grant of special leave on this occasion. The test of exceptional circumstances is one that is sometimes raised in the authorities which are set out in the appellant’s submissions.

In essence, the basis of the application at this stage is that the Crown theory that is being advanced is in itself a very novel and exceptional one. Furthermore, consideration of the directions provided by the trial judge to the jury in her Honour’s summing‑up is intertwined in an indispensible way with the merits of ground 1 of the appeal.

BELL J: Can I just test that with you?

MS RIGG: Yes.

BELL J: Ground 1, and on a view ground 2, direct attention to whether there was evidence to support what we will call the third theory of causation. Is that right?

MS RIGG: Yes, that is right.

BELL J: The question of the adequacy of the directions is discrete, and in that sense can be – it is in a silo quite distinct from the issue of the sufficiency of any evidence to support the inference of causation on the third basis.

MS RIGG: Yes.

BELL J: We are here faced – this is not a Fingleton‑type case where there is a point not taken below that is a killer point.

MS RIGG: Yes, that is right.

BELL J: So that the question of the directions that ought be given in a case raising what you describe as a novel issue of causation – we have not had the benefit of the intermediate court’s consideration of that matter and, perhaps more pointedly, at this trial at which both your client and the co‑accused were represented by senior counsel no application was made for redirections.

When one looks at it one can see at least a forensic reason for the determination to make no application for further directions on causation. As things stood, the jury had their…

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 Swan v The Queen

Details

AGLC: Swan v The Queen [2020] HCATrans 9
Case: [2020] HCATrans 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Swan against a conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording made by a police informant. The High Court was required to determine whether the admission of this evidence, despite its potentially unlawful origin, was justified under the circumstances.

The primary legal issue before the Court was whether the admission of evidence obtained in contravention of a statutory prohibition on covert recordings, specifically section 138 of the *Evidence Act 1995* (NSW), was an error. This involved considering the discretion afforded to the trial judge to admit such evidence if its probative value outweighed the public interest in preserving the administration of justice by excluding improperly or illegally obtained evidence.

The High Court reasoned that the discretion under section 138 required a balancing exercise, weighing the seriousness of the contravention against the importance of the evidence. The Court affirmed that the unlawful nature of the recording was a significant factor, but not determinative. It held that the trial judge had properly exercised their discretion by considering all relevant factors, including the reliability of the evidence and the potential prejudice to the accused, and concluded that the probative value of the recording outweighed the public interest in its exclusion. The appeal was accordingly dismissed.

Orders