Visser v The Queen

VISSER
v
THE QUEEN
[2021] HCASL 111
M10/2021
M11/2021

The applicant requires an extension of time to file applications for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of Victoria (McLeish, Emerton and Osborn JJA). The applicant's proposed ground of appeal in each application would require him to establish that the failure of the Commonwealth Director of Public Prosecutions or the Australian Federal Police to disclose information about which they were unaware amounted to a substantial miscarriage of justice for the purposes of s 276(1)(b) and (c) of the Criminal Procedure Act 2009 (Vic).
The Court of Appeal considered that the information was not obtained in breach of legal professional privilege since it was not disclosed as part of the retainer, nor was it obtained in breach of a duty of loyalty or confidence. No other source of wrongdoing is alleged in these applications. The ultimate conclusion of the Court of Appeal was that the evidence at trial was nevertheless not inadmissible under s 138 of the Evidence Act 2008 (Vic) even if a breach of one of the identified duties were established. No substantial miscarriage of justice was therefore established. The applicant's submissions in support of his proposed grounds of appeal do not provide any reason to doubt the correctness of that conclusion on the facts of this case. It would therefore be futile to grant the extensions of time sought. The applications for special leave should be refused.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the applications.

M.M. Gordon J.J. Edelman

17 June 2021

CaseChat Overview and Summary

In the Supreme Court of Australia, Visser sought an extension of time to file applications for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The applicant's proposed grounds of appeal were that the failure of the Commonwealth Director of Public Prosecutions and the Australian Federal Police to disclose information, which they were unaware of, amounted to a substantial miscarriage of justice. The Court of Appeal had previously held that the information in question was not obtained in breach of legal professional privilege or any duty of loyalty or confidence, and therefore, it did not render the evidence inadmissible under s 138 of the Evidence Act 2008 (Vic). As a result, the Court of Appeal concluded that no substantial miscarriage of justice had occurred.

The legal issues before the court were whether the failure to disclose the information constituted a substantial miscarriage of justice under s 276(1)(b) and (c) of the Criminal Procedure Act 2009 (Vic). The court also had to determine whether the applicant's submissions provided any reason to doubt the correctness of the Court of Appeal's conclusion. The High Court held that the applicant's submissions did not provide any reason to doubt the Court of Appeal's conclusion, and therefore, it would be futile to grant the extensions of time sought. The court further held that the applications for special leave should be refused.

The High Court reasoned that the applicant's submissions did not provide any reason to doubt the Court of Appeal's conclusion that no substantial miscarriage of justice had occurred. The court held that the information in question was not obtained in breach of legal professional privilege or any duty of loyalty or confidence, and therefore, it did not render the evidence inadmissible under s 138 of the Evidence Act 2008 (Vic). The court further held that the applicant's submissions did not provide any new evidence or argument that could have changed the Court of Appeal's conclusion. Therefore, it would be futile to grant the extensions of time sought.

The court dismissed the applications for special leave to appeal and directed the Registrar to draw up, sign and seal an order dismissing the applications. The court held that the applicant's submissions did not provide any reason to doubt the Court of Appeal's conclusion, and therefore, it would be futile to grant the extensions of time sought. The court further held that the applications for special leave should be refused. The court's decision was based on the applicant's failure to provide any new evidence or argument that could have changed the Court of Appeal's conclusion.

CaseChat Overview and Summary

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Legal Principle Established