Vunilagi v The Queen & Anor - [2023] HCATrans 4

[2023] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2022

B e t w e e n -
SIMON VUNILAGI
Appellant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 2023, AT 9.59 AM

(Continued from 8/2/23)

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, can I resume this morning at paragraph 6 of our oral outline, on what I have called the second pathway to resolve ground 2. That pathway is that, in our submission, Bernasconi, holds that a law that is supported by section 122 of the Constitution, whether enacted by the Commonwealth Parliament itself, or by subordinate legislature, is not a law of the Commonwealth for the purposes of section 80. We submit that that decision is not distinguishable, and should not be re-opened, and, therefore, that it provides a separate path to dismiss ground 2, if your Honours reach it.

Can I ask your Honours to go to Bernasconi 19 CLR 629, it is volume 3, tab 43 in the joint book, 1915. My submissions will focus just upon the Chief Justice’s reasons with whom Justices Gavan Duffy and Rich agreed. We place no reliance on the different path of reasoning of Justice Issacs, but nor do we need to do so; there is clear majority reasoning in the Chief Justice’s reasons. Your Honours will see the Chief Justice commences his judgment at 632. In the first paragraph, he notes that the accused had been tried without a jury in accordance with an Ordinance in the Territory, and that the first question raises whether he was entitled to a jury trial.

The offence in question, as you see over the page on 633, was an offence, the text of which was found in the Criminal Code (Qld), section 339 of that Code, “an indictable offence”; but it was not, of course, enforced as a Queensland law within the relevant area. It had originally. for our purposes – and you can see this in the first full paragraph on the page – been in force in the Territory by reason of an Ordinance of the previous Assembly of British New Guinea – the British possession of British New Guinea. But that situation changed, and you see that at about point 7 on page 633, when that former British possession was:

placed by the King under the authority of and accepted by the Commonwealth.

At which time it became the territory of Papua. And, as the Chief Justice points out, that was given effect by the Papua Act of 1905. I would ask your Honours to go to that Act very briefly – it is in volume 2, tab 19 of the materials that your Honours have – just to note 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 Vunilagi v The Queen & Anor

Details

AGLC: Vunilagi v The Queen & Anor [2023] HCATrans 4
Case: [2023] HCATrans 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Vunilagi against the decision of the Court of Appeal of the Supreme Court of Queensland, which had affirmed his conviction for murder. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge erred in admitting evidence of Mr Vunilagi's prior convictions and whether the cumulative effect of certain directions given by the trial judge to the jury, particularly concerning the use of that evidence, rendered the trial unfair. The Court also considered whether the Court of Appeal had adequately addressed these grounds of appeal.

The High Court's reasoning focused on the principles governing the admissibility of evidence of prior convictions under the Uniform Evidence Law, specifically the balance between the probative value of such evidence and its prejudicial effect. Their Honours examined the trial judge's directions to the jury, assessing whether they sufficiently mitigated the potential prejudice arising from the admission of the prior convictions. The Court considered whether the overall directions provided a fair trial, taking into account the totality of the evidence and the jury's task.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders