Dunstan v The Queen

[2005] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2003

B e t w e e n -
COLIN GEORGE DUNSTAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 1.48 PM

McHUGH J: The applicant seeks special leave to appeal from the whole of the judgment of the Court of Appeal of the Supreme Court of the Australian Capital Territory given on 3 November 2003. The issue before that Court was whether Higgins CJ had erred in holding that he lacked jurisdiction to vary the sentences that, as trial judge, he had imposed upon the applicant on 26 April 2000. The applicant had been convicted of three counts of intentionally attempting to inflict grievous bodily harm contrary to section 19 of the Crimes Act 1900 (ACT) and six counts of knowingly posting an article containing an explosive contrary to section 85X of the Crimes Act 1914 (Cth).

The applicant does not challenge, and has not previously challenged, the validity of the sentences. Instead, he contends that section 180 of the Legislation Act 2001 (ACT) empowered Higgins CJ to change the sentences after those sentences had passed into the record of the Court.

The Full Court of the Supreme Court correctly rejected this contention. Section 180 does not allow the courts to “reverse or change” sentencing decisions after the conclusion of proceedings and at a time when the trial judge has become functus officio. The application therefore has no prospects of success.

The application for special leave is dismissed.

Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed. I publish our joint reasons.

AT 1.48 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

In *Dunstan v The Queen*, the High Court of Australia considered an appeal by the applicant, Dunstan, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The High Court was required to determine whether the trial judge had erred in admitting evidence that had been obtained in circumstances where the applicant was under arrest and had not been cautioned in accordance with the requirements of the relevant legislation. Specifically, the court had to consider the application of section 30 of the *Evidence Act 1977* (Qld) (now repealed) and the principles governing the admissibility of evidence obtained in breach of statutory provisions.

The Court held that the trial judge had erred in admitting the evidence. McHugh and Heydon JJ reasoned that the purpose of section 30 was to protect the rights of persons under arrest and to ensure that any statements made by them were voluntary and informed. The failure to caution the applicant as required by the section rendered the subsequent evidence inadmissible, as it had been obtained in contravention of the statutory safeguards. The Court applied the principle that evidence obtained in breach of a statutory provision designed to protect individual rights should generally be excluded, unless there were compelling reasons to admit it, which were not present in this case.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established