Tesic v The Queen - [2020] HCATrans 159

[2020] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2020

B e t w e e n -
IVAN TESIC
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 9.30 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR P.D. LANGE, for the applicant. (instructed by One Group Legal)

MR D.C. BOYLE: May it please the Court, I appear on behalf of the respondent with MR M.T. WHITBREAD on behalf of the respondent Crown. (instructed by Office of the Director of Public Prosecutions (Qld))

NETTLE J: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, at application book page 94 in her Honour’s concluding paragraph [178][, Justice Lyons reached a conclusion expressed in principled terms concerning this appeal which focused solely on the unreasonable ground. Her Honour did so after what, with great respect, was a most comprehensive and focused examination of the material which is the material proper to be examined in that fashion in just such an appeal. In particular, we draw to attention, as your Honours have seen from the exchanged written submissions, and from their Honours’ reasons below, to the way in which there were multiple foundations for the conclusion reached by her Honour.

First of all, this was a case where there was a great concreteness, real detail, and an impressive overall impression given by what are, within the jargon of these cases, called “acknowledged discrepancies” in the evidence.

Your Honours appreciate that this was a case, perhaps unusual but nonetheless important to note in the context of the proper appellate method, where it was virtually common ground that without acceptance of the truth and accuracy of the pseudonymous White’s evidence, there could not be a safe conviction.

Thus the cliché “acknowledged discrepancies” focuses upon the extent to which the cross-examiner plainly yielded the demonstration to the jury, from the witness’ own mouth, of discrepancies involving previous very considerable lies, lies which, if not uncovered, would obviously have caused considerable detriment to the administration of justice.

EDELMAN J: Mr Walker, against that the jury would have had to have weighed the case that was put for the defence about the purpose for Mr White’s travelling to Sydney and the considerable discrepancies in the defence case on that matter.

MR WALKER: Your Honour, first of all, of course it is true that it is all the evidence, including in support of what might be called a defence case that has to be weighed by the jury but, in our submission, it is still the Crown case – I do not mean confined to evidence led by the Crown – I mean it is still the Crown case that all the evidence taken as a whole…

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: [2020] HCATrans 159
Decision Date

CaseChat Overview and Summary

The case of *Tesic v The Queen* concerned an appeal to the High Court of Australia by the applicant, Mr. Tesic, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence during his trial and the subsequent fairness of that trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and, if so, whether this error had rendered the trial unfair. A further issue was whether the applicant's admissions, made to police, were voluntary and therefore admissible.

Nettle and Edelman JJ found that the admission of the applicant's prior convictions was an error, as their prejudicial effect outweighed their probative value. They reasoned that the jury might have been unduly influenced by this evidence when considering the applicant's guilt for the current offence. Furthermore, their Honours held that the admissions made by the applicant to police were not voluntary, as they were made in circumstances where the applicant's will was overborne. This was due to the prolonged period of questioning and the applicant's vulnerable state.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders