Tran v The Queen - [2018] HCATrans 32

[2018] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A32 of 2017

B e t w e e n -
ABIGAIL HUYEN TRAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 FEBRUARY 2018, AT 10.09 AM

MS M.E. SHAW, QC: If the Court pleases, I appear for the applicant with my learned friend, MR S.A. McDONALD. (instructed by Shaw and Henderson)

MS E.F. TELFER, SC: May it please the Court, I appear with my learned friend, MR P.J.C. HILL, for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ: Mrs Shaw, what is the point of principle in this matter?

MS SHAW: Your Honours, the first point of principle relates to the determination by Justice Vanstone, who delivered the judgment for the Court, that she, at an appeal stage, contrary to what the trial judge had found, could use the rejection of the accused’s evidence as positively proving guilt in the sense of proof of knowledge and, therefore, bring that to bear in disposing of the unsafe ground of appeal. Her Honour clearly did that in relation to count 42. Your Honours, the matter that is also a point of principle ‑ ‑ ‑

BELL J: Before you move to the next point of principle, can I take this up with you. The first matter that you have raised I think goes to her Honour’s statement at application book 151, paragraph 65, where she says that the trial judge said that he was not treating the:

appellant’s evidence as evidence of her guilt. The appellant argues that this was the correct position to take and –

that her Honour disagrees with it.

MS SHAW: Yes.

BELL J: Now, her Honour’s basis for disagreement, it seems to me, is disclosed on the following page at paragraph 69 where her Honour observes, having regard to the evidence, that the appellant’s conduct was, as her Honour characterises it:

extraordinary . . . Once her explanations were rejected, the inferences arising –

in this circumstantial case from that pattern of extraordinary conduct was compelling in favour of a conclusion of guilt. Is there anything wrong with saying that the rejection of an accused’s evidence raising an asserted hypothesis consistent with innocence may mean that the court is satisfied there is in fact no hypothesis consistent with innocence available? What is wrong with that as a matter of reasoning?

MS SHAW: We submit, your Honours, as a matter of reasoning it is not informed by the application of the burden of proof and that once you inform that reasoning by the application of the burden of proof, not only do you have to bring to account the accused’s evidence but you also have to bring to account the fact that the accused called witnesses who supported…

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: [2018] HCATrans 32
Decision Date

CaseChat Overview and Summary

In *Tran v The Queen*, the High Court of Australia considered an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The appellant, Mr. Tran, had been convicted of a number of offences, including drug trafficking and possession of a firearm. The central dispute on appeal concerned the admissibility of certain evidence obtained by police during a search of Mr. Tran's property.

The High Court was required to determine whether the evidence obtained from the search was admissible, notwithstanding that the search warrant was arguably defective. Specifically, the Court had to consider the application of the exclusionary rule and the principles governing the admission of improperly or illegally obtained evidence, particularly in light of the discretion afforded to courts to admit such evidence if its probative value outweighs its prejudicial effect.

The Court reasoned that while the search warrant may have had technical deficiencies, the police had acted in good faith and with reasonable grounds to believe that the warrant was valid. Applying the principles established in cases such as *Bunning v Cross* and *Ridgeway v The Queen*, the High Court held that the probative value of the seized evidence was substantial and that its admission would not be unfairly prejudicial to the appellant. The Court emphasised the importance of balancing the need to deter unlawful police conduct with the public interest in ensuring that relevant and probative evidence is available for the administration of justice.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal of Queensland and confirming the admissibility of the evidence.

Orders