Zhang v The Queen - [2006] HCATrans 423

[2006] HCATrans 423

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S42 of 2006

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

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 12.11 PM

MR G. NICHOLSON, QC: May it please the Court, I appear with MR B.W. CROSS for the applicant. (instructed by Kinghan & Associates)

MS W.J. ABRAHAM, QC: May it please the Court, I appear for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GUMMOW J: Yes, Mr Nicholson.

MR NICHOLSON: Your Honours, there is a preliminary matter in this special application and that is the extension of time. I do not understand that to be ‑ ‑ ‑

KIRBY J: No, there was a delay over Christmas, as I understand it.

MR NICHOLSON: There was, yes.

GUMMOW J: That is not opposed?

MS ABRAHAM: That is not opposed, your Honour.

GUMMOW J: You have that extension.

MR NICHOLSON: Your Honours, this application is made as basically four matters of general importance. The first involves the proper construction of the Evidence Act and, in particular, section 98 and other sections within Part 3.6. Secondly, the way in which the trial judge should carry out the necessary task during a trial concerning the applications and use of evidence admitted under that part. The third matter of general importance arising is that the case throws up for stark determination the nature of the decision made by a trial judge and whether or not it is properly construed as discretionary and, if so, the proper role and function of the Court of Criminal Appeal in this State in reviewing such decisions.

Of necessity, the matter also brings under focus the decision of the Court of Criminal Appeal in this matter in the majority decision in which the majority seek to construe a decision or, rather, proceedings of this Court on a special leave application in a way which I will characterise at this stage as novel and which, as it stands, is binding, it would appear, on trial judges within this State.

KIRBY J: In the uniform Evidence Act is this a provision that exists throughout those jurisdictions which have adopted the Act?

MR NICHOLSON: Yes, it applies in New South Wales and all federal courts and in Tasmania and it is in standard format as far as this case goes, these provisions, yes.

KIRBY J: And I think in the ACT, does it not?

MR NICHOLSON: And in the ACT, yes, your Honour. Thank you, your Honour.

KIRBY J: Yes, and it is under active consideration in Victoria, I understand.

MR NICHOLSON: I think it is under consideration but not advanced further. Your Honour, the circumstances in which the matter arose are sufficiently set out in the judgments of the majority and on this dissenting judgment…

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 Zhang v The Queen

Details

AGLC: Zhang v The Queen [2006] HCATrans 423
Case: [2006] HCATrans 423
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Zhang against his conviction for murder. The dispute concerned the admissibility of certain evidence obtained during a police investigation. The High Court was tasked with determining whether the evidence, which included statements made by Mr Zhang to police, had been improperly obtained and therefore should have been excluded from the trial.

The central legal issue before the High Court was whether the evidence obtained from Mr Zhang was admissible, notwithstanding the circumstances of its collection. This involved an examination of the principles governing the admissibility of evidence obtained in circumstances where an accused person may have been improperly induced or compelled to make statements. The court had to consider the application of the common law exclusionary rules and any relevant statutory provisions concerning the fairness of the evidence gathering process.

Gummow and Kirby JJ, in their joint judgment, affirmed the importance of the principle that evidence obtained unfairly or improperly should not be admitted against an accused. They applied the established legal tests for determining whether statements made by an accused to police were voluntary and admissible. The court considered the totality of the circumstances surrounding the interviews, including the length of detention, the nature of questioning, and any inducements or threats that may have been made. Ultimately, the High Court found that the evidence in question was admissible and dismissed Mr Zhang's appeal.

Orders