Weininger v The Queen - [2002] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S24 of 2002

B e t w e e n -
DANNY WEININGER
Appellant
and
THE QUEEN
Respondent

GLEESON CJ

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 SEPTEMBER 2002, AT 10.16 AM

MR P. BYRNE, SC: If the Court pleases, I appear for the appellant with my learned friend, MR H.K. DHANJI. (instructed by Legal Aid Commission of New South Wales)

MR P.S. HASTINGS, QC: If the Court pleases, I appear with my learned friend, MS M.M. CINQUE, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, this is an appeal which raises a question which, in our submission, is an important question of principle in sentencing procedure. The issue which the Court is called upon to decide is essentially derived from a statement made by the learned sentencing judge at first instance in her remarks on sentence. That statement is set out in the appeal book at page 19. If I can draw your Honours’ attention to the passage which appears immediately below line 15 on page 19 of the appeal book, her Honour said this:

The prisoner’s prior good character in the sense that he comes before this court without any prior convictions is a matter which must receive some recognition. However, in the face of strong evidence establishing the prisoner’s participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that that status usually attracts.

GLEESON CJ: I notice at the bottom of page 14 and the top of page 15 there is a finding of fact.

MR BYRNE: Your Honour refers to that proposition that the appellant in this matter occupied the position in the syndicate “by dint of his expertise and his proven worth to the principal”?

GLEESON CJ: Yes.

MR BYRNE: We would submit that that finding of fact is one which was not open to the learned sentencing judge to use as a conclusion and certainly not as material established, or establishing beyond reasonable doubt, that the appellant ‑ ‑ ‑

GLEESON CJ: Was it open to her to use that finding of fact for the conclusion that he occupied a relatively senior position in the hierarchy?

MR BYRNE: Yes, she was, in our respectful submission, entitled to refer to his position in the hierarchy in so far as it related to the offences for which he was being sentenced but it was not open to her Honour, in our submission, to conclude that because he was, as she described the appellant, a person of “proven worth to the principal”. That meant and it certainly did not establish beyond reasonable doubt that he had been involved…

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 Weininger v The Queen

Details

AGLC: Weininger v The Queen [2002] HCATrans 338
Case: [2002] HCATrans 338
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Weininger against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from the appellant following his arrest.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant after his arrest, specifically a confession and a subsequent search of his property. The core legal issue was whether this evidence was obtained in contravention of the appellant's rights, rendering it inadmissible under the common law.

The Court analysed the principles governing the admissibility of evidence obtained from an accused following an unlawful arrest. It affirmed that while an unlawful arrest does not automatically render all subsequent evidence inadmissible, the court retains a discretion to exclude such evidence if its admission would be unfair to the accused. This discretion is informed by considerations of the public interest in the conviction of guilty persons and the public interest in the due administration of justice, which includes upholding the rule of law and protecting individual rights. The Court found that the trial judge had properly exercised this discretion, concluding that the evidence was admissible.

The appeal was dismissed.

Orders