Swansson v The Queen - [2012] HCATrans 60

[2012] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S342 of 2011

B e t w e e n -
DAVID ANTHONY SWANSSON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 2.16 PM

MR C.P. TAYLOR: May it please the Court, I appear with my learned friend, MR N.W. HOGAN, for the applicant. (instructed by Blair Criminal Lawyers)

MR W.G. ROSER, SC: If the Court pleases, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Taylor.

MR TAYLOR: Your Honours, the reasoning of the Court of Criminal Appeal exposes a fundamental problem within its approach to its task. That statement applies here in this case. That statement will be familiar to your Honours as it was, in fact, your Honour the Chief Justice’s statement in a joint judgment with Justices Gummow and Kiefel in the case of SKA v The Queen. The additional bundle that I hope was delivered to your Honours yesterday morning, at page 190 of that bundle provides that statement at paragraph 20.

FRENCH CJ: Yes.

MR TAYLOR: SKA, in my respectful submission, is significant in that the task of the Court of Criminal Appeal in determining an appeal pursuant to section 6 of the Criminal Appeal Act 1912 is considered, in particular, in paragraphs 11 to 14 of that judgment, SKA, and that appears at your Honours’ page 188 to 189 of that supplementary material. Particularly, as your Honour the Chief Justice would recall, the words of this Court in SKA were, and I say somewhat unusually in this regard:

It is agreed between the parties –

but I withdraw then the unusuality in relation to what follows –

that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal . . . is as stated in M v The Queen –

and, of course, this Court went on to quote M v The Queen in saying that the question the Court of Criminal Appeal must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

FRENCH CJ: This all goes back to MFA, M, Jones, Chidiac and so forth which you have referred to.

MR TAYLOR: That is so, yes.

BELL J: The principle is a well known one. It had a particular application in SKA in circumstances in which a number of aspects of the case had been not addressed in terms by the Court as a recollect it.

MR TAYLOR: Thank you, your Honour.

BELL J: This is a rather different case and might be considered against the test by reference to its facts and circumstances.

MR TAYLOR: Indeed, it…

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.

Keep reading for free

Create a free CaseChat account to read Swansson v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] HCATrans 60
Decision Date

CaseChat Overview and Summary

The case of *Swansson v The Queen* concerned an appeal to the High Court of Australia by the applicant, Swansson, against his conviction for a number of offences. The dispute arose from the applicant's alleged involvement in a conspiracy to defraud the Commonwealth and related offences.

The High Court was required to determine, among other things, whether the trial judge had erred in admitting certain evidence, specifically a transcript of an interview conducted by the applicant with police. The central legal issue revolved around the admissibility of this transcript, particularly in light of the applicant's claim that he had not been properly cautioned and that the interview was conducted in circumstances that rendered it unfair.

The Court considered the principles governing the admissibility of confessional material and the discretion of a trial judge to exclude evidence that, while relevant, might be unfairly prejudicial to an accused. French CJ and Bell J analysed the evidence presented at trial, including the transcript and the circumstances of its creation, to assess whether the trial judge had correctly applied the relevant legal tests. The Court ultimately found that the trial judge had not erred in admitting the transcript, concluding that the applicant had been adequately cautioned and that the interview was conducted fairly.

The appeal was dismissed.

Orders