Weiss v The Queen - [2005] HCATrans 776

[2005] HCATrans 776

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M50 of 2005

B e t w e e n -
BOHDAN WEISS
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 SEPTEMBER 2005, AT 10.09 AM

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friends, MR S.T. RUSSELL and MR L.C. CARTER, for the appellant. (instructed by Falcone & Adams)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the respondent. (instructed by Director of Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Tehan.

MR TEHAN: Your Honours, this appeal concerns what Justice Brooking of the Supreme Court of Victoria once described as “a riddle”.

GUMMOW J: I am not sure it is a riddle, actually, when you understand where it all came from.

MR TEHAN: His Honour thought so.

GUMMOW J: Well, that is right but he did not have the benefit of full submissions.

MR TEHAN: The provision of course is section 568(1) of the Crimes Act 1958 (Vic), a provision which is common to all State Courts of Criminal Appeal. The appeal comes before this Court because the Court of Appeal found that evidence of the age of a girl with whom the appellant was having a sexual liaison at the time of his separation from his then partner, Jean Horstead, should not have been admitted. On 20 May of this year special leave to appeal was granted on the ground that the Court of Appeal erred in failing to quash the appellant’s conviction and order a retrial when it had found, firstly, that the learned trial judge had wrongly admitted the evidence of the age of the girl and, secondly, the court had found that it was not inevitable that a reasonable jury properly instructed would have convicted the appellant.

As to that second matter, at appeal book 1339, which is in volume 2, Mr Justice Callaway said at line 7:

If the test were inevitability, in the sense that any reasonable jury properly instructed would inevitably have reached the same conclusion as this jury, I could not apply the proviso to this case. A new trial would have to be directed.

In a footnote to that sentence, footnote 69:

Another jury might have taken a different view of Ms Horstead’s evidence or the reliability of the applicant’s confession, for this was a case that largely turned on the credibility of the two principal witnesses.

KIRBY J: Mr Tehan, I notice the two other judges in the Court of Appeal agreed with his Honour Justice Callaway and therefore with that paragraph.

MR TEHAN: Yes.

KIRBY J: But what would happen in this appeal if we were of the view that his Honour was wrong in that estimation? Is that a…

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 Weiss v The Queen

Details

AGLC: Weiss v The Queen [2005] HCATrans 776
Case: [2005] HCATrans 776
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Weiss, against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording of a conversation between the applicant and a police informant, and whether this evidence was improperly obtained and should have been excluded under s 138 of the *Evidence Act 1995* (NSW).

The High Court was required to determine whether the recording was obtained in contravention of any Australian law, and if so, whether the desirability of admitting the evidence outweighed the disreputability of the impropriety. Specifically, the Court had to consider whether the actions of the police informant in making the recording constituted an offence under New South Wales law, and if so, the extent to which that contravention should influence the exercise of the discretion to admit the evidence.

The Court's reasoning focused on the interpretation of s 138 of the *Evidence Act 1995* (NSW), which provides a discretion to admit evidence obtained improperly or in contravention of an Australian law. The majority held that the recording was made in contravention of s 7 of the *Listening Devices Act 1984* (NSW), which prohibits the use of listening devices without a warrant. However, the Court found that the impropriety was not so significant as to warrant exclusion of the evidence, particularly given the probative value of the recording in establishing the applicant's guilt. The Court applied the principles established in cases such as *Ridgeway v The Queen* and *Bally v The Queen* regarding the exercise of discretion to exclude improperly obtained evidence.

The High Court dismissed the appeal, upholding the applicant's conviction.

Orders