Woods v The Queen - [2012] HCATrans 248

[2012] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D4 of 2012

B e t w e e n -
GRAHAM WOODS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 OCTOBER 2012, AT 12.49 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.R. GOLDFLAM. (instructed by Legal Aid Commission)

MR W.J. KARCZEWSKI, QC: May it please the Court, I appear for the respondent Crown with my learned friend, MR M.J. MCCOLM. (instructed by Director of Public Prosecutions)

CRENNAN J: Thank you. Yes, Mr Odgers.

MR ODGERS: Your Honours, the application was filed a little over three weeks late and we seek an extension of time.

CRENNAN J: Any opposition to that?

MR KARCZEWSKI: No objection, your Honour.

CRENNAN J: Yes, you have that.

MR ODGERS: Thank you, your Honour. The question of general importance raised by this application is where the burden of proof rests in sentencing proceedings if an offender contends that some exculpatory or mitigating circumstance existed at the time of the commission of the offence, such as duress or provocation or, in this case, excessive self‑defence. The prosecution takes issue with that claim, contending that the circumstance did not exist. The judgment in Olbrich has been understood by many lawyers and judges to impose a burden of proof on the offender in those circumstances. That was certainly the understanding of the counsel who appeared for Mr Woods, the applicant, below and ‑ ‑ ‑

CRENNAN J: Well, just going to Olbrich, which is in the folder of authorities, and I think paragraph 27 sets out what Olbrich stands for. You will see there that what was adopted by the Court was what was said by the majority in R v Storey:

that a sentencing judge
“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt.

So, that is the principle in relation to sentencing where a circumstance is to be considered that is adverse.

On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

MR ODGERS: Yes. We, in substance, do not say that there is anything wrong in that statement. What we say though is that in applying those principles to a case such as the present an entirely different situation arises in comparison with Olbrich. Olbrich was a case, your Honours may recall, where the facts advanced by the offender did not relate to the circumstances of the offence but to events before the offence and events after it, and it was not necessary for the sentencing…

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 Woods v The Queen

Details

AGLC: Woods v The Queen [2012] HCATrans 248
Case: [2012] HCATrans 248
Decision Date

CaseChat Overview and Summary

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

The central legal issues before the High Court were whether the evidence obtained from the search was unlawfully obtained, and if so, whether it should have been excluded from admission at trial under the *Uniform Evidence Law*. Specifically, the Court considered the application of s 138 of the *Uniform Evidence Law*, which governs the exclusion of improperly or illegally obtained evidence.

The High Court held that the search of Woods' property was unlawful because the police did not have a valid search warrant at the time of the search. Consequently, the evidence obtained from the search was improperly obtained. However, the Court found that the admission of this evidence at trial did not occasion a substantial miscarriage of justice, and therefore the appeal was dismissed. The Court applied the principles of s 138, balancing the desirability of admitting relevant evidence against the impropriety of its acquisition.

Orders