White v The Queen - [2003] HCATrans 435

[2003] HCATrans 435

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P57 of 2002

B e t w e e n -
STEPHEN NEIL WHITE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.01 AM

MR N.J. MULLANY: May it please, your Honours, I appear for the applicant. (instructed by the Director of Legal Aid, Western Australia)

MR R.E. COCK, QC: I represent the respondent, your Honours. (instructed by the Director of Public Prosecutions for Western Australia)

GUMMOW J: Yes, Mr Mullany.

MR MULLANY: Your Honours, the acknowledgment that sentencing does not admit of a single and correct answer determined by application of some mathematical or mechanical process makes it all the more important, as your Honour Justice Callinan observed in Pearce at paragraph 46, “that proper principle be applied throughout the process” and it was not here. Two errors can be identified in the reasoning said to support the restructure of the sentence which, in our submission, give rise to two questions of principle. Your Honours find those errors at paragraphs 41 to 42 of the reasons of his Honour Justice McKechnie, which appear at application book page 36. They are to be read ‑ ‑ ‑

GUMMOW J: Just a moment, 36?

MR MULLANY: Yes, your Honour, paragraphs 41 and 42. What appears there is to be read with what appears at paragraph 46 through to the first line of paragraph 49. What appears, your Honours, was that 42 reveals the nature of the key identified by the Court of Criminal Appeal used to unlock, erroneously, in our respectful submission, the door to appellate review. Having stated at paragraph 40 at 36 that the only criticism to be levied of the sentence was the decision to make the sentences concurrent, error in relation to that issue of a character said to justify interference was inferred.

GUMMOW J: In practical terms the then outcome was 17 as against 13, was it not?

MR MULLANY: Correct, your Honours. We know that Justice McLure started from a figure of around about 17 years. We can say that with some confidence because of her statement that she applied a discount of between 25 and 35 per cent. Your Honours find the relevant structures of the sentence and the restructuring below at paragraphs 3(g) and (j), which appear at 44 and 45 of the application book.

CALLINAN J: Mr Mullany, your point is, is it not, that unlawful wounding, attempted murder and two counts of sexual penetration constitute one transaction?

MR MULLANY: It is, your Honour, but can I put it slightly differently.

CALLINAN J: It sounds a very unlikely proposition, I have to tell you.

MR MULLANY: Your Honour, can I come at it in a different way. What we say is that the issue of character was elevated to an…

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 White v The Queen

Details

AGLC: White v The Queen [2003] HCATrans 435
Case: [2003] HCATrans 435
Decision Date

CaseChat Overview and Summary

In *White v The Queen*, the High Court of Australia considered an appeal by the applicant, White, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in breach of a statutory prohibition, and whether the admission of this evidence, along with other alleged irregularities, had resulted in a miscarriage of justice. The Court also had to consider the proper application of the exclusionary rule in relation to improperly obtained evidence.

Gummow and Callinan JJ, in their joint judgment, analysed the relevant provisions of the *Crimes Act 1914* (Cth) and the common law principles governing the admission of evidence. They affirmed that while evidence obtained in contravention of a statutory prohibition may be excluded, the court retains a discretion to admit such evidence if its probative value outweighs any prejudice to the accused. The judges found that the trial judge had properly exercised this discretion, concluding that the admission of the evidence did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders