Witham v The Queen - [1998] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S86 of 1997

B e t w e e n -
JOHN ALLAN WITHAM
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 11.02 AM

MR P. KINTOMINAS: May it please, your Honours, I appear for the applicant, with my learned friend, MR R.K.M. RASMUSSEN. (instructed by Castrission & Co)

MR A.M. BLACKMORE: I appear for the respondent, your Honours. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J: Yes, Mr Kintominas.

MR KINTOMINAS: May it please your Honours. The applicant seeks leave to appeal on two grounds against his conviction - sorry, seeks leave to appeal against the decision of the Court of Criminal Appeal dismissing his application for leave to appeal against his conviction and we say that both of the grounds of appeal raise matters of importance sufficient to warrant the granting of special leave.

The first ground is that the trial judge did not give a warning to the jury that it may be dangerous to convict in the circumstances of the case.

GAUDRON J: That is right, but why should he have?

MR KINTOMINAS: Your Honours, we say this - - -

GAUDRON J: He does not come with any of the recognised categories of “suspect witness”, does he?

MR KINTOMINAS: That is true.

GAUDRON J: Well now, why should he be treated any differently from any other witness? Why should his evidence be put on a different basis from that of any other complainant?

MR KINTOMINAS: We say that there are a number of features of the case. Firstly, there is a general pattern about which we say there should form, yet, another category because the categories that were adverted to in Longman and Longman made it clear, were never closed.

GAUDRON J: Did they? In that sense, yes, but you have to point to something that makes the evidence suspect.

MR KINTOMINAS: Yes. We say, your Honours, that where you have a situation where A confronts B and accuses B of having committed a crime, and apparently does so with reasonable cause; an altercation ensues; B gets the worst of it and B makes allegations against A; we say that that in itself is a situation where you have to be extremely wary of.

GAUDRON J: I think you are driven to saying that but I would like you to identify what it is about that situation that makes B’s evidence suspect.

MR KINTOMINAS: It makes it suspect because firstly - - -

GAUDRON J: In fact, if he gets the worst of it, as you hypothesise, that perhaps makes it more credible.

MR KINTOMINAS: The difficulty, your Honour, we say is that because he gets the worst of it, certainly it gives him a certain credibility and the jury…

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 Witham v The Queen

Details

AGLC: Witham v The Queen [1998] HCATrans 335
Case: [1998] HCATrans 335
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Mr. Witham, against his conviction for murder. The dispute centred on the admissibility of certain evidence obtained during police investigations.

The primary legal issue before the Court was whether the trial judge had erred in admitting evidence that was obtained in contravention of the applicant's rights. Specifically, the Court had to determine if the evidence, which included admissions made by the applicant, was improperly obtained and, if so, whether its admission at trial had occasioned a miscarriage of justice.

Gaudron and Callinan JJ, in their joint judgment, focused on the principles governing the admission of evidence obtained in breach of an accused's rights. They affirmed that while the law permits the admission of such evidence, it must be exercised with caution. The Court considered the nature of the breach, the importance of the evidence, and the potential prejudice to the accused. Ultimately, their Honours found that the admission of the evidence was not an error that led to a miscarriage of justice, and therefore dismissed the appeal.

Orders