Xerri v The King - [2023] HCATrans 91

[2023] HCATrans 091

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S169 of 2022

B e t w e e n -
BRIAN XERRI
Applicant
and
THE KING
Respondent
Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 JUNE 2023, AT 2.28 PM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR N.M. STEEL appears for the applicant. (instructed by Ryan Payten Le)

MS H.R. ROBERTS, SC and MS E.S. JONES appear for the respondent in Canberra. (instructed by Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Steel.

MR STEEL: May it please the Court. This application concerns the issue of whether a new maximum penalty ‑ ‑ ‑

KIEFEL CJ: I am sorry, do you require an extension of time?

MR STEEL: Yes, we do require an extension of time, your Honour.

KIEFEL CJ: And is it opposed?

MS ROBERTS: It is not, your Honour.

KIEFEL CJ: It is not opposed. You have that extension, Mr Steel.

MR STEEL: Thank you, your Honour.

KIEFEL CJ: Yes, please continue.

MR STEEL: Your Honour, as I was indicating, the application concerns the issue of whether a new maximum penalty of life imprisonment has retrospective application when, at the time of the applicant’s offending, the applicable maximum penalty was 25 years’ imprisonment. The applicant submits that an issue of general importance does arise in this matter as to how an apparent ambiguity as to whether an offence is entirely new – so that a new maximum penalty is applicable – as opposed, alternatively, to the offence being an amended, reformulated, refined and improved offence, in which case a lower maximum penalty would apply – should be addressed.

KIEFEL CJ: Is the importance of whether or not it is an entirely new offence that, if that is the case, section 19 of the Crimes (Sentencing Procedure) Act does not apply?

MR STEEL: That was the position that the majority took in the Court of Criminal Appeal, your Honour. We would submit that, ultimately, it is our submission that a more appropriate way to look at the legislation is to look at the context of the legislation the other Acts that are affected – or

provisions, such as sections 19(1) and 25AA of the Crimes (Sentencing Procedure) Act that preserved section 19(1), which normally provides that where there is an increase in a maximum penalty, the penalty that applied at the time of the offence is the applicable penalty.

I am paraphrasing the section, your Honour, but looking at the context and the textual indications in terms of the legislation, it is, in the applicant’s submission, a more correct way of assessing whether the new maximum penalty of life imprisonment was intended to operate by the legislature, retrospectively or not, your Honours.

KIEFEL CJ: Yes, I see.

MR STEEL:

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 Xerri v The King

Details

AGLC: Xerri v The King [2023] HCATrans 91
Case: [2023] HCATrans 91
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Xerri v The King*, concerning the appellant's conviction for murder. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone, specifically text messages and call logs, which were seized under a search warrant. A further issue was whether the admission of this evidence, in conjunction with other aspects of the trial, rendered the proceedings unfair and thus constituted a miscarriage of justice.

The Court considered the principles governing the admissibility of evidence obtained under a search warrant and the discretion of a trial judge to exclude evidence where its prejudicial effect outweighs its probative value. Kiefel CJ and Jagot J analysed the nature of the evidence, its relevance to the charges, and the potential for it to unfairly prejudice the appellant in the eyes of the jury. They examined whether the search warrant was validly executed and whether the evidence obtained was properly admitted according to the rules of evidence and the overarching requirement for a fair trial. The Court ultimately found that the admission of the mobile phone evidence, in the circumstances of the trial, did not occasion a miscarriage of justice.

Orders