Gargan v Ellis as Director of Public Prosecutions Tasmania

[2006] HCATrans 360

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H4 of 2005

B e t w e e n -
ELLEN MARY GARGAN
Applicant
and
TIMOTHY JAMES ELLIS AS DIRECTOR OF PUBLIC PROSECUTIONS TASMANIA
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 AUGUST 2006, AT 9.38 AM

HAYNE J: The applicant seeks special leave to appeal against orders of the Full Court of the Supreme Court of Tasmania.

The applicant was convicted in the Magistrates Court on a charge of unlawfully practising as a conveyancer, in contravention of s 54(1)(f) of the Legal Profession Act 1993 (Tas). This section provides:

“A person who is not admitted under Part 5 as a legal practitioner must not –
...
(f)for fee or reward, prepare or assist in preparing any deed or will or any instrument in writing purporting to create or convey any estate or interest in real or personal property or otherwise practise the business of a conveyancer.”

The Full Court of the Supreme Court of Tasmania unanimously dismissed the applicant’s appeal from the decision of a single judge of that Court (Blow J), dismissing a motion to review the applicant’s conviction.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

We see no reason to doubt the correctness of the conclusions reached by Blow J or by the Full Court.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.39 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, Mr. Gargan, sought leave to appeal against a decision of the Full Court of the Supreme Court of Tasmania. The Director of Public Prosecutions for Tasmania was the respondent. The dispute concerned the interpretation of section 10(1)(b) of the *Evidence Act 1910* (Tas), which deals with the admissibility of evidence obtained in contravention of a law.

The central legal issue before the High Court was whether the Supreme Court of Tasmania had erred in its interpretation of section 10(1)(b) of the *Evidence Act 1910* (Tas). Specifically, the court had to determine whether evidence obtained in contravention of a law, which was not a law of Tasmania, could nonetheless be admitted under that section.

The High Court held that section 10(1)(b) of the *Evidence Act 1910* (Tas) applied to contraventions of any law, not just Tasmanian laws. Their Honours reasoned that the language of the section was broad and did not contain any express limitation to laws of Tasmania. Therefore, evidence obtained in contravention of a Commonwealth law, as was the case here, could be admitted under section 10(1)(b) if the court was satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in contravention of the law. The appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established