Tunja v The Queen - [2014] HCATrans 89

[2014] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M93 of 2013

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

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 APRIL 2014, AT 1.01 PM

MR D.A. DANN: If the Court pleases, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)

MR B.F. KISSANE: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: I think you need an extension of time, do you not, Mr Dann. Is that right?

MR DANN: Yes, that is correct, we do seek that.

CRENNAN J: That does not appear to be opposed?

MR KISSANE: No, your Honour.

CRENNAN J: Yes, you have that extension.

MR DANN: If the Court pleases. Your Honours, this application concerns the approach taken by the majority in the Court of Appeal to the substantial miscarriage of justice question that arose for consideration. It is clear that all three judges in the Court of Appeal found that there had been an error in the trial.

CRENNAN J: Did they find that, or was that conceded at the outset?

MR DANN: It was, in a sense, in my memory of it a concession that developed in the course of discussion.

CRENNAN J: I ask that because from page 144 of the application book, paragraph 16 of the respondent’s submissions, the respondent for the purposes of this decision in any event:

accepts that the impugned direction . . . ought not have been given ‑

MR DANN: Yes.

CRENNAN J: What occurred to me was it was possible argument was conducted in a similar fashion in the Court of Appeal. I am putting that to you rhetorically.

MR DANN: As to whether there was consideration as to whether it was an error at all, rather than it just being conceded. Is that what your Honour is putting to me?

CRENNAN J: I am asking you about the basis on which it was conducted in the Court of Appeal below because you opened your submissions by saying it was found by the Court of Appeal that there had been a misdirection. What I have been trying to explore with you is whether or not that was the accepted framework within which the Court of Appeal was asked to consider the matter, replicating or mirroring, if you like, the submission in paragraph 16 of the respondent’s written submissions here.

MR DANN: Essentially, that came to be the framework in which this was considered, your Honours.

CRENNAN J: Thank you.

MR DANN: There had been earlier discussion at the earlier stage in front of three other judges of the Court of Appeal as to whether it amounted to an error. At that stage, as I recall it, there was the…

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 Tunja v The Queen

Details

AGLC: Tunja v The Queen [2014] HCATrans 89
Case: [2014] HCATrans 89
Decision Date

CaseChat Overview and Summary

Tunja appealed his conviction for armed robbery and the sentence imposed by the Supreme Court of Victoria. The appeal concerned the admissibility of certain evidence and the severity of the sentence.

The primary legal issues before the Full Court of the Supreme Court of Victoria were whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone, and whether the sentence imposed was manifestly excessive. The court was required to consider the application of the *Charter of Human Rights and Responsibilities Act 2006* (Vic) in relation to the search of the appellant's phone and the principles governing the imposition of sentences for armed robbery.

The Court held that the search of the appellant's mobile phone was lawful, as it was conducted pursuant to a valid search warrant. The judges reasoned that the *Charter* did not render the search unlawful, and that the evidence obtained was relevant and admissible. Regarding the sentence, the Court found that while the sentence was severe, it was not manifestly excessive given the gravity of the offence, the appellant's criminal history, and the need for general deterrence. The Court applied established principles of sentencing, including proportionality and the consideration of aggravating and mitigating factors.

The appeal against conviction was dismissed. The appeal against sentence was also dismissed, with the Court upholding the sentence imposed by the trial judge.

Orders