Vunilagi v The Queen - [2022] HCATrans 113

[2022] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C23 of 2021

B e t w e e n -
SIMON VUNILAGI
Applicant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Application for special leave to appeal

KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 17 JUNE 2022, AT 12.47 PM

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR J.S. STELLIOS for the applicant. (instructed by Hugo Law Group)

MS K.L. McCANN appears for the first respondent. (instructed by ACT Director of Public Prosecutions)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory, appears with MS H. YOUNAN, SC and MS A.M. HAMMOND for the second respondent. (instructed by Australian Capital Territory Government Solicitor)

KEANE J: Ms McCann, I notice that Mr Walker’s client requires an extension of time. Is that opposed?

MS McCANN: No, your Honour, that is not opposed.

KEANE J: Thank you. Mr Walker, you have your extension of time.

MR WALKER: May it please the Court. Your Honours, the conviction in question followed a bench trial, a trial by judge alone, and it was, of course, for offences against laws of the Australian Capital Territory, an expression I use deliberately because of the terms of section 80 of the Constitution, to which I will come, but not immediately.

Laws of the Australian Capital Territory, of course, depend or derive from the powers given to the Commonwealth Parliament by section 122 of the Constitution, and then of course upon legislation…..Self-Government Act in this case. But the particular provision at the heart of the argument, which can be seen at page 231 of the application book is, as your Honours know, a temporary provision to deal with what is there called the “COVID‑19 emergency period”- section 68BA of the Supreme Court Act 1933 of the Territory, continued, in effect, by reason of the initiating notice in question by the provision you see overleaf at page 232 of the application book, namely, section 116 of the Act.

In section 68BA, one notices that the power to order that the proceeding be tried by judge alone depends, in subsection (3), upon satisfaction of matters which are familiar as being in the heartland of functions to be discharged judicially, indeed, expressed in terms which characterise the exercise as judicial. That, of course, were it to stand alone, would be most inauspicious for the argument under ground 1 that might be called the Kable point.

The Kable point, however, depends upon subsection (4) and its operation anterior to or, by way of gatekeeper (4), the exercise of characteristically judicial functions under subsection (3).

GLEESON J: Mr Walker, just at the outset, was there anyone other than your client who 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 Vunilagi v The Queen

Details

AGLC: Vunilagi v The Queen [2022] HCATrans 113
Case: [2022] HCATrans 113
Decision Date

CaseChat Overview and Summary

The applicant, Vunilagi, appealed to the Supreme Court of Queensland against his conviction for the offence of unlawful possession of a dangerous drug. The dispute centred on whether the evidence obtained by police during a search of the applicant's vehicle was admissible.

The primary legal issue before the Court was whether the police had reasonable suspicion to stop and search the applicant's vehicle under section 29 of the *Police Powers and Responsibilities Act 2000* (Qld). This required the Court to consider the nature and sufficiency of the information available to the police officer at the time of the search to form a reasonable suspicion that the vehicle contained dangerous drugs.

Gleeson J found that the information available to the police officer, which included intelligence from a confidential informant and observations made by the officer, did not establish a reasonable suspicion that the vehicle contained dangerous drugs. The informant's information was not sufficiently detailed or corroborated to justify the suspicion. Consequently, the search was unlawful, and the evidence obtained as a result was inadmissible. The Court allowed the appeal, quashed the conviction, and entered a verdict of acquittal.

Orders