Kelly v The Queen [2004] HCA 12

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND HEYDON JJ

SHANE LESLIE KELLY APPELLANT

AND

THE QUEEN RESPONDENT

Kelly v The Queen

[2004] HCA 12

10 March 2004

H1/2003

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Tasmania

Representation:

K B Procter SC with D R Wallace for the appellant (instructed by Wallace Wilkinson & Webster)

T J Ellis SC with C J Rheinberger for the respondent (instructed by Director of Public Prosecutions (Tasmania))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kelly v The Queen

Criminal Law − Evidence − Admissibility of statement made to police after video-recorded interview was completed − Where statement was not made in response to any police question − Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Evidence − Admissibility − Statement made to police after video-recorded interview completed − Where statement was not made in response to any police question − Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Criminal Law − Appeal − Proviso − No substantial miscarriage of justice.

Statutes − Construction − Purposive construction − Use of definition sections to aid statutory construction.

Words and Phrases: "made in the course of official questioning", "confession or admission".

Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss 8(1), 8(2)(a).

Criminal Code (Tas), s 402(2).

1. GLEESON CJ, HAYNE AND HEYDON JJ. The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania[1]. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder, and Gary Hilton Williams ("Williams"), whom the jury acquitted both of murder and of being an accessory after the fact.