Wildy v The Queen - [2012] HCATrans 110

[2012] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A31 of 2011

B e t w e e n -
MARK CLIVE WILDY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 1.45 PM

MR M.L. ABBOTT, QC: If it pleases the Court, I appear with my learned friend, MS M.E. SHAW, QC. (instructed by Michael Woods & Co)

MR A.P. KIMBER, SC: If it please the Court, I appear with my leaned friend, MS A.F. CAIRNEY. (instructed by the Director of Public Prosecutions (SA))

CRENNAN J: Thank you. Yes, Mr Abbott.

MR ABBOTT: Your Honours, this is a far different case from the last application your Honours heard before lunch. The issue of public importance warranting a grant of special leave in this case is the way in which courts around Australia have interpreted and applied this honourable Court’s decision in Edwards post‑offence conduct contrasted with the ‑ ‑ ‑

CRENNAN J: The respondent does not disagree with the general statement that an Edwards direction might be required in circumstances where the post‑offence conduct is other than lies. So the special leave questions seem to be founded not so much on principle, but largely on the circumstances of this particular case.

MR ABBOTT: With great respect, I would, with respect, differ. If the Court goes to the respondent’s submissions, which are at page 100 of the application book, the Court will see in paragraph 12 the respondent says:

There is no authority from this Honourable Court in support of the Applicant’s contention that it is necessary to direct the jury in the terms developed in Edwards where the post‑offence conduct relied upon as evidence of consciousness of guilt is not evidence of lies by the accused.

Then they say, and this is the nub, we say, the point of importance:

the Applicant invites this Honourable Court to develop the common law as to the directions required to be given by a trial judge where evidence of post‑offence conduct, other than lies, is relied upon by the prosecution as evidence of consciousness of guilt.

CRENNAN J: Then, of course, there is paragraph 3 – perhaps this is a question for the respondent – on page 98 of the application book which is really moving in a different direction.

MR ABBOTT: Yes. On the one hand they say – I take that as being – they want to contest the proposition on the one hand, but they are, of course, constrained by at least – not necessarily a constraint, but they recognise that there is a body of jurisprudence developed in numerous other courts, criminal appeal and superior courts around Australia, extracts of some of which we have set out in our case book in cases 3 to 7. Could I just…

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.

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Details

Case: [2012] HCATrans 110
Decision Date

CaseChat Overview and Summary

Wildy appealed his conviction for murder in the Supreme Court of South Australia. The appeal concerned the admissibility of evidence obtained from a search of the appellant's property and the subsequent use of that evidence at trial.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the search warrant used to seize the evidence was validly issued, and if not, whether the evidence obtained should have been excluded from trial under the exclusionary rule. The court was required to consider the requirements for the lawful execution of search warrants and the principles governing the admission of improperly obtained evidence.

The Court held that the search warrant was invalid because it had not been properly signed by the issuing officer. Consequently, the evidence seized pursuant to that warrant was unlawfully obtained. Applying the exclusionary rule, the Court found that the trial judge had erred in admitting the evidence, as there was no justification for departing from the general rule that unlawfully obtained evidence should be excluded. The Court concluded that the admission of this evidence had likely led to a miscarriage of justice.

The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders