Weston v The Queen - [2000] HCATrans 382

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B50 of 1999

B e t w e e n -
TAM MINH NGUYEN
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Brisbane No B40 of 1999

B e t w e e n -
DAVID JOHN BOOTH
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 9.35 AM

_____________________

MR P.J. DAVIS: If it pleases the Court, I appear on behalf of the applicant. (instructed by Messrs Russo & Coburn)

MR M.J. BYRNE, QC: May the Court please, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Davis.

MR DAVIS: Your Honour, can I please start with just a brief outline of the facts. My client was a 22-year-old man at the time of the commission of the offences. He was convicted on his own plea of one count of trafficking in dangerous drugs. It was a significant quantity of heroin. He was sentenced in the Supreme Court in Brisbane. The sentence that was imposed was calculated by adopting a nominal sentence of 16 years and then adjusting that sentence by reference to time in custody and other matters which then gave a sentence which was actually imposed of 13 years imprisonment. On appeal that was reduced to 12 years and eight months imprisonment.

GLEESON CJ: I am terribly sorry, what was the number that was reduced to 12 years and eight months?

MR DAVIS: Thirteen years was reduced to 12 years and eight months.

GLEESON CJ: Yes, thank you.

MR DAVIS: It may strike your Honour strange that there was that minor adjustment to such a lengthy sentence. The reason for it was that at the sentencing certain provisions of the Penalties and Sentences Act were overlooked both by the sentencing

judge, the Crown Prosecutor and, indeed, also defence counsel and because those provisions were overlooked the Court of Appeal felt obliged to resentence, ultimately coming to a conclusion very similar to that of his Honour who sentenced my client. By operation of the Penalties and Sentences Act, indeed, amendments that came into force in 1997, the effective term before being eligible for parole is eleven and a half years.

GLEESON CJ: That is the 80 per cent.

MR DAVIS: Yes, that is 80 per cent of the 13 years, plus the time in custody that he had already spent prior to sentence.

GLEESON CJ: Is that automatic or did it require a declaration?

MR DAVIS: The declaration was automatic by force of the section.

GLEESON CJ: Right, so by force of the statute.

MR DAVIS: By force of the statute the declaration had to be made.

GLEESON CJ: So we are not dealing here with an issue of the kind we looked at yesterday where there was 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 Weston v The Queen

Details

AGLC: Weston v The Queen [2000] HCATrans 382
Case: [2000] HCATrans 382
Decision Date

CaseChat Overview and Summary

In *Weston v The Queen*, the High Court of Australia considered an appeal by the applicant, Weston, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police interview and the subsequent application of the *Criminal Procedure Act 1986* (NSW).

The High Court was required to determine whether the trial judge had erred in admitting evidence of statements made by the applicant during a police interview, despite concerns about the voluntariness of those statements and compliance with statutory requirements regarding the recording of interviews. A further issue was whether the trial judge had adequately directed the jury on the issue of self-defence.

The Court held that the trial judge had erred in admitting the statements. Gleeson CJ and Callinan J found that the police had failed to comply with the requirements of the *Criminal Procedure Act 1986* (NSW) concerning the recording of interviews, and that the statements should have been excluded as a result. Their Honours emphasised the importance of strict adherence to statutory safeguards designed to protect the rights of suspects during police interviews. The Court also found that the jury directions on self-defence were insufficient.

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

Orders