WGC v The Queen - [2007] HCATrans 415

[2007] HCATrans 415

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2007

B e t w e e n -
WGC
Appellant
and
THE QUEEN
Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 10.58 AM

MR D.H. PEEK, QC: May it please the Court, I appear with my learned friend, MR A.J. CROCKER, for the appellant. (instructed by Scammell & Co)

MR P. BREBNER, QC: May it please the Court, I appear with my learned friend, MR S. GILL, for the respondent. (instructed by Director of Public Prosecutions (SA)

GUMMOW J: Yes, Mr Peek.

MR PEEK: May it please the Court. If I can take the Court first to the essential materials. Section 49 of the Criminal Law Consolidation Act, as it was at the relevant period, is most conveniently found in annexure 1 to the appellant’s summary of argument being the first two pages of that annexure. We do for completeness have after the subsequent amendments taking it up to its present form but I do not think that they will be necessary or be needed in this case, but they are there for completeness.

HAYNE J: Just before you depart from Act ‑ ‑ ‑

MR PEEK: No, I was going to it, your Honour.

HAYNE J: You were going to it, very well.

MR PEEK: Yes, thank you, your Honour. I just wanted to point out some very short matters for the moment and that is that one sees that separate offences were created by subsections (1) and (3); one being a felony, the other being a misdemeanour which tends to underline, if underlining be needed, the separate nature of those offences. I point out that since this time the felony misdemeanour law has been abolished in South Australia but once again, that took place after the relevant time in this case, in any event.

KIRBY J: What is the relevance of that?

MR PEEK: I merely mention that it has been changed, your Honour.

HAYNE J: But on either version of the events only 49(3) was engaged?

MR PEEK: Indeed, but, your Honour, when I come in more detail to the correct interpretation of the statute, as I will in a moment, I will be saying that the separate nature of 49(1) and (3) is of some relevance to the overall correct interpretation of the statute. I will deal with that very shortly. That is all I wanted to say about that for the moment, then to identify the other relevant material and then come to the substantive argument. The information is at appeal book ‑ ‑ ‑

HAYNE J: You are going away from the statute. Can we stay with the statute a moment? Section 49(3) identifies the relevant offence, is that right?

MR PEEK: Yes, your Honour.

HAYNE J: On either version…

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 WGC v The Queen

Details

AGLC: WGC v The Queen [2007] HCATrans 415
Case: [2007] HCATrans 415
Decision Date: 8 August 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by WGC against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The High Court was required to determine whether the evidence, which included statements made by the appellant and items seized from his property, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from admission at trial under s 138 of the *Evidence Act 1995* (Cth). A further issue was whether the trial judge had erred in admitting the evidence despite objections raised by the defence.

The Court analysed the provisions of the *Crimes Act* relating to the powers of police to question and search suspects, and the requirements for obtaining evidence. It then considered the principles governing the exclusion of improperly or illegally obtained evidence under s 138 of the *Evidence Act*, which requires a balancing of the desirability of admitting the evidence against the undesirability of admitting evidence that has been improperly or illegally obtained. The judges applied these principles to the facts of the case, considering the nature of the contravention, the importance of the evidence, and the strength of the evidence of guilt.

The High Court dismissed the appeal, finding that the trial judge had not erred in admitting the evidence.

Orders