Tran v The Queen - [2007] HCATrans 398

[2007] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M35 of 2007

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

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 12.21 PM

MR P.G. NASH, QC: If the Court pleases, I appear with my learned friend, MR D.J. HANCOCK, for the applicant. (instructed by Access Law)

MR O.P. HOLDENSON, QC: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Vic))

CALLINAN J: Yes, Mr Nash.

MR NASH: If the Court pleases, three preliminary matters, one we would seek leave to apply out of time.

CALLINAN J: Is there any problem about that, Mr Holdenson?

MR HOLDENSON: There is no prejudice. It is only opposed on the basis that the argument at the end of the day is doomed to fail. Your Honours would have to hear the argument first, however.

MR NASH: I am sorry, your Honour. I think my learned friend is thinking about the third application.

CALLINAN J: You do not oppose any extension of time, Mr Holdenson?

MR HOLDENSON: No.

CALLINAN J: Thank you.

MR NASH: The second matter is that the application book contains the wrong version of the presentment. We understand that the respondent has supplied the Court with a correct copy. Nothing turns on the content of the presentment, in any case.

CALLINAN J: All right, and what is your third matter then?

MR NASH: The third point is that we seek leave to add a ground and to add to our outline of argument a fresh point.

CALLINAN J: You have made your position clear on that, Mr Holdenson.

MR HOLDENSON: Yes, I did, your Honour.

CALLINAN J: You may proceed upon the basis, for present purposes, that you may argue that third additional ground.

MR NASH: If the Court pleases. Crucial to the conduct of this appeal is the learned trial judge’s response to the question asked. In fact, this was not argued below in this form but, in our submission, nothing turns on that.

CALLINAN J: Mr Nash, just remind me, what was the attitude of your client’s counsel to the answer that was given?

MR NASH: Counsel’s response was that it was impossible to answer, but when one analyses it, what the jury in fact asked was, if we believe this man was not trafficking, what should we do? That is really the substance of the question asked. If the applicant knew that the heroin was in the house, he knew that Mr Vo was trafficking but he was not involved in the business, it was solely Mr Vo’s business, then we say that the question is really a question, what do we do if we are not satisfied beyond reasonable doubt that this man was…

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 Tran v The Queen

Details

AGLC: Tran v The Queen [2007] HCATrans 398
Case: [2007] HCATrans 398
Decision Date: 3 August 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Tran against his conviction for murder. The dispute concerned the admissibility of a confession made by Mr Tran to police. The High Court was required to determine whether the confession was improperly obtained and therefore inadmissible in evidence.

The central legal issue before the High Court was whether the confession was obtained in contravention of the common law rule against admitting evidence obtained by unfairness, or by means of an inducement or oppression. This involved an assessment of the circumstances surrounding the confession, including the length of questioning, the presence of an interpreter, and the nature of the questions asked by police.

Callinan and Heydon JJ found that the confession was not improperly obtained. Their Honours applied the principles established in cases such as *R v Swaffield* and *Pollard v The Queen*, which require a careful balancing of the probative value of the confession against any unfairness in its procurement. The Court concluded that, despite the length of questioning and the fact that Mr Tran was not cautioned at the outset, the overall circumstances did not render the confession unfair or involuntary. The judges were satisfied that Mr Tran understood the questions and that his confession was a voluntary act.

The appeal was dismissed.

Orders