Ousley v The Queen

High Court of Australia|1997-10-20|Before: Kirby JJ, Toohey J, Marks J, Coldrey J

For the reasons already given, this is not a case for the application of the proviso [342] . The appellant lost the chance to exercise the right to have a judicial determination of the admissibility of the evidence obtained from the illegal use of the listening device. In all the circumstances, I would not be prepared to say that such an application was futile or bound to fail.

At the time of hearing of this appeal the appellant had served most of the custodial part of his sentence. By the time the Court's orders are made he will have completed the non-parole period. An application was made at the hearing, if the appeal were to be allowed, for orders quashing the conviction and entering a judgment of acquittal. Such an order would not be appropriate. It would be tantamount to accepting that exclusion of the evidence, objected to by the appellant, was inevitable. That is not certain. A new trial should therefore be ordered in the full understanding that, for practical reasons, it may be unlikely to be had in this case. The decision on whether a retrial is conducted should rest with the prosecuting authorities. It is essential to make that order to uphold the principle which the appellant brought to this Court for vindication.

The appeal should be allowed. The order of the Court of Appeal of the Supreme Court of Victoria should be set aside. In lieu thereof, it should be ordered that the appellant have leave to appeal to that Court; his appeal should be upheld; his conviction and sentence should be quashed and a new trial ordered.

High Court of Australia Toohey, Gaudron, McHugh, Gummow and Kirby JJ Ousley v The Queen [1997] HCA 49

(1986) 42 SASR 361. 2. Note, however, that in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, where there was no need for any recital, the recital of the existence and the terms of the information laid, which terms did not reflect all the matters upon which the validity of the warrant depended, was held not to indicate a want of satisfaction as to any of those matters. 3. See Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 at 393, per Cox J.

See Davy v Spelthorne Borough Council [1984] AC 262 at 277; Rubinstein, Jurisdiction and Illegality (1965), pp 37-38; Aronson and Franklin, Review of Administrative Action (1987), p 211. See also the discussion of Beazley J in Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 112-122. 2. [1985] AC 835 at 852. 3. cf Aronson and Dyer, Judicial Review of Administrative Action (1996), p 644.

when a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so. Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation. Thus, in Director of Public Prosecutions v Head [82] , the House of Lords upheld an order of the Court of Criminal Appeal quashing a conviction for carnal knowledge of a "mental defective" within the meaning of the Mental Deficiency Act 1913 UK on the ground that the certification of the woman in question was invalid even though none of the parties to the certification were parties in the criminal proceedings. 1. (1946) 74 CLR 461 at 483. 2. [1959] AC 83.

Feldman, The Law Relating to Entry, Search and Seizure (1986), p 131. 2. Carroll v Mijovich (1991) 25 NSWLR 441. 3. Re United Distillers Ltd [1947] 3 DLR 900; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Arno v Forsyth (1986) 9 FCR 576. A warrant need not specify particular things to be seized, however, if the class of such things is sufficiently identified by reference to an offence: cf R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 114. 4. R v La Vesque (1918) 30 CCC 190; R v Solloway Mills & Co (1930) 53 CCC 261; Tillett (1969) 14 FLR 101; Cloran (1984) 4 FCR 151. 5. Caudle v Seymour (1841) 1 QB 889 [113 ER 1372]; Ex parte Marks (1906) 6 SR (NSW) 428. 6. Feather v Rogers (1909) 9 SR (NSW) 192; Bowden v Box [1916] NZ Gaz LR 443; Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663; Tillett (1969) 14 FLR 101; Coghill v McDermott [1983] 1 VR 751; Hedges v Grundmann; Ex parte Grundmann [1985] 2 Qd R 263. 7. Sheehan v Gallagher [1902] QSR 319. However, a warrant was not necessarily bad because it directed a member of a class of persons to execute it (MacDonald v Beare (1904) 1 CLR 513). 8. Tillett (1969) 14 FLR 101 at 108. 9. R v Conley (1979) 21 SASR 166; Walker v West [1981] 2 NSWLR 570.

Ex parte Young; In re Young (1881) 19 Ch 124 at 134; Malpas v Malpas (1885) 11 VLR 670; McCheane v Gyles [1902] 1 Ch 287 at 301; Kayley v Hothersall [1925] 1 KB 607 at 612; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Donald Campbell & Co v Pollak [1927] AC 732 at 804. 2. See Poyser v Minors (1881) 7 QBD 329 at 333, 337-338; Naughton v Colonial Provident Life and General Assurance Co Ltd [1928] VLR 533 at 538. 3. Pt 77, r 73 and form 89C.

Lynch v Brisbane City Council (1961) 104 CLR 353 at 365. 2. Foster v Aloni [1951] VLR 481 at 484. See also State Bank (SA) v Hellaby (1992) 59 SASR 304 at 309. 3. South Australia v Tanner (1989) 166 CLR 161 at 165. 4. (1933) 49 CLR 142 at 156.

Hoffman-La Roche v Trade Secretary [1975] AC 295 at 365. See Campbell, Inferior and Superior Courts and Courts of Record, Journal of Judicial Administration, vol 6 (1997) 249, at p 258 ; Aronson and Dyer, Judicial Review of Administrative Action (1996), p 653. 2. Broom, A Selection of Legal Maxims, 10th ed Kersley (1939), p 642.

(1994) 70 A Crim R 162 at 169. 2. Carroll (1994) 70 A Crim R 162 at 169, 176-179; see also Murdoch, Murphy, Murphy & Murphy v The Queen (1987) 37 A Crim R 118 at 129; Murphy v The Queen (1989) 167 CLR 94 at 104-106; Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322. 3. See, eg, McArthur v Williams (1936) 55 CLR 324 at 365-366; Murphy v The Queen (1989) 167 CLR 94 at 105; Karina Fisheries Pty Ltd v Mitson (1990) 49 A Crim R 153 at 166; 95 ALR 557 at 570, per O'Loughlin J, affd (1990) 26 FCR 473; cf Nakkuda Ali v Jayaratne [1951] AC 66 at 76-77; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047; Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 979.

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