Tognolini v The Queen - [2011] HCATrans 303

[2011] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2011

B e t w e e n -
TERRENCE RAYMOND TOGNOLINI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 11.15 AM

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR T. KASSIMATIS, for the applicant. (instructed by Galbally Rolfe)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MS J.M. FALLAR, for the respondent. (instructed by Director of Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Priest.

MR PRIEST: Your Honours, there is no doubt that if the conviction in this case had been based solely on the last occasion – count 4 having been based solely on the last occasion, the conviction here could not stand.

FRENCH CJ: Count 4 covered the period October to December 2006, did it not?

MR PRIEST: It did, your Honour.

FRENCH CJ: Am I right in understanding your argument is that the jury – it was not open to the jury to accept the secondary case, there was a misdirection because there was only the one episode and not three separate acts. They must have been left in doubt as to whether you had knowledge of the true age of the complainant in respect of the earlier period and that once you focus on the secondary case you do not have 47A(5) available to you.

MR PRIEST: That is it, your Honour.

FRENCH CJ: But the answer to that which is – why is not an answer to that to say that the whole count covered a period of relationship from October to December 2006 for whatever reason, the jury acquitted and that opens the door into 47A(5) because there were other sexual acts.

MR PRIEST: The answer to it is this, your Honour, that the alternative to 47A conduct was left only with respect to the last occasion. So that the alternative was not left with respect to the earlier conduct about which apparently the jury failed of satisfaction beyond reasonable doubt that he knew that she was 16. So much appears, your Honours, from the charge to the jury and it is necessary for me to take the Court briefly to the charge to make this point good. Could I take the Court, first of all, to 58 to 59 of the application book, and 58 about line 50, last paragraph on the page:

The prosecution also alleged that the accused did a number of acts on some of these occasions which separately constituted the particular offences. For example at the hotel on the one night there are three alleged acts, one of sexual penetration and two of indecent act. On the last occasion there are also three alleged acts, again one of…

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 Tognolini v The Queen

Details

AGLC: Tognolini v The Queen [2011] HCATrans 303
Case: [2011] HCATrans 303
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Tognolini against his conviction for offences under the *Proceeds of Crime Act 1987* (Cth) and the *Crimes Act 1914* (Cth). The dispute concerned the admissibility of certain evidence, specifically financial records obtained by the Australian Federal Police, and whether their admission at trial had occasioned a miscarriage of justice.

The central legal issue before the High Court was whether the admission of the financial records, which were obtained pursuant to a search warrant that was later found to be invalid, constituted a miscarriage of justice. This required the Court to consider the principles governing the admission of evidence obtained in contravention of the law, and the test for determining whether such an admission had led to a miscarriage of justice.

The Court reasoned that the admission of evidence obtained in contravention of the law is permissible under section 79 of the *Judiciary Act 1903* (Cth) if it is relevant and its probative value outweighs any prejudice. However, where the evidence is obtained in contravention of a statutory provision, the court must consider whether the contravention was of a kind that rendered the evidence inadmissible. In this instance, the Court found that the invalidity of the search warrant meant the evidence was obtained unlawfully. The Court then applied the test for miscarriage of justice, considering whether the jury would likely have reached a different verdict had the evidence not been admitted.

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

Orders