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[1997] HCA 49
High Court of Australia
1997-10-20
Kirby JJ, Toohey J, Marks J, Coldrey J
Original judgment source is linked above.
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.
Ousley
The Queen
High Court of Australia Toohey, Gaudron, McHugh, Gummow and Kirby JJ Ousley v The Queen [1997] HCA 49
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.
(1978) 141 CLR 54
(1990) 170 CLR 104
(1994) 179 CLR 427
(1989) 167 CLR 94
(1936) 55 CLR 324
(1990) 169 CLR 307
(1995) 184 CLR 348
(1986) 42 SASR 361
(1990) 26 FCR 473
(1969) 14 FLR 101
(1904) 1 CLR 329
(1981) 50 FLR 475
(1982) 148 CLR 88
(1989) 168 CLR 210
(1992) 175 CLR 564
(1995) 184 CLR 301
(1995) 184 CLR 19
(1995) 63 FCR 100
(1944) 68 CLR 571
(1982) 151 CLR 491
(1967) 116 CLR 366
(1946) 74 CLR 461
(1996) 68 FCR 265
(1996) 60 FCR 149
(1984) 4 FCR 498
(1978) 142 CLR 1
(1983) 151 CLR 678
(1984) 154 CLR 640
(1989) 168 CLR 338
(1991) 173 CLR 28
(1993) 68 ALJR 173
(1994) 68 ALJR 372
(1994) 68 ALJR 496
(1985) 4 FCR 483
(1991) 25 NSWLR 441
(1984) 4 FCR 151
(1986) 9 FCR 576
(1904) 1 CLR 513
(1979) 21 SASR 166
(1985) 9 FCR 557
(1990) 52 SASR 549
(1992) 176 CLR 239
(1991) 171 CLR 635
(1961) 104 CLR 353
(1992) 59 SASR 304
(1989) 166 CLR 161
(1933) 49 CLR 142
(1981) 148 CLR 170
(1982) 150 CLR 49
(1978) 19 SASR 464
(1996) 190 CLR 311
(1957) 96 CLR 245
(1992) 176 CLR 177
(1970) 126 CLR 321
(1997) 188 CLR 501
(1986) 161 CLR 141
(1986) 42 SASR 382
(1987) 162 CLR 514
(1990) 171 CLR 1
(1987) 13 FCR 594
(1985) 9 FCR 316
(1997) 188 CLR 595
(1985) 157 CLR 351
(1988) 16 NSWLR 24
(1994) 11 WAR 549
(1980) 147 CLR 75
(1996) 185 CLR 250
(1985) 3 NSWLR 230
(1992) 28 NSWLR 593
(1983) 76 FLR 296
(1988) 164 CLR 350
(1990) 169 CLR 214
(1978) 141 CLR 269
(1985) 157 CLR 57
(1981) 52 FLR 123