Baumer v The Queen - [1988] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Darwin No Dl of 1988

B e t w e e n -

JOHN PAUL BAUMER

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
WILSON J
DEANE J
DAWSON J
GAUDRON J
TRANSCRIPT OF PROCEEDINGS

Baumer
AT CANBERRA ON FRIDAY, 18 NOVEMBER 1988, AT 2.31 PM
Copyright in the High Court of Australia

C2T 64/ 1 /SDL 18/11/88
MR M.L. ABBOTT, QC: If the Court pleases, I appear with my
learned frienq, MR C.R. McDONALD, for the applicant.
(instructed by the Australian Legal
Aid Office)

MR T. I. PAULING, QC; SolicitoF-General for the Northern
·Territory: If it.please the Court, I appear
with my learned friend, MR W.J. KARCZEWSKI, for
the respondent. (instructed by the Solicitor
for the Northern Territory)

MASON CJ: Yes, Mr Abbott?
MR ABBOTT: If the Court pleases, this application is
two-fold: firstly, for an application for an
extension of time in which to apply for special
leave. That application is not opposed by the
respondent and I advance, in support of that
application, the affidavit of Mr Baumer filed
in these proceedings.

MASON CJ: Yes, we have read .the affidavits in support
of that application.

MR ABBOTT: In my submission, Mr Baumer has, at no stage - - -

MASON CJ: You need not worry about extension of time,
Mr Abbott.

MR ABBOTT: If the Court pleases. The :second application is
an application for special leave and, in our
submission, it involves a question of law which
is of public importance and of general application,
namely, what should be the approach of a sentencing
judge to the procedures set out in section 154
of the Code and, in particular, :subsection (4).
. Se·ction 154. .of .the. Code d:eals with all

dangerous acts and omissions. It is a section
which is in a Code which came into operation
at the beginning of 1984 and has been amended

once by Act No 9 of 1984. I refer the Court to section 154(4) and, as the outline of our
submission indicates, this is a section of wide
application which deals with a variety of dangerous

acts and omissions. I have said, in our application,
that a charge under this section is invariably
included as an alternative charge in indictments
charging murder and/or manslaughter; In fact,
that is incorrect. By operation of section 318
of the Code, it is always an alternative charge
that is open to the jury to return a verdict
upon.
It is also the section under which charges

are laid in cases of alleged dangerous driving
causing death or, in the case of this applicant,
grievous harm to a member of the community.

C2T64/2/SDL 2 18/11/88
Baumer
?he question that we seek to argue in
this application relates to the wording of
section 154(4) and, in essence, is this: does
the phrase "liable to further imprisonment for
four years" mean that after considering the appropriate
penalty under subsections (1), (2) or (3),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baumer v The Queen

Details

AGLC: Baumer v The Queen [1988] HCATrans 278
Case: [1988] HCATrans 278
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Baumer, sought special leave to appeal to the High Court of Australia against a decision of a lower court. The respondent was The Queen. The core of the dispute concerned the proper interpretation and application of section 154(4) of the Northern Territory Criminal Code, which deals with dangerous acts and omissions.

The legal issue before the High Court was whether the phrase "liable to further imprisonment for four years" in section 154(4) of the Code required a sentencing judge to undertake a separate exercise of determining additional imprisonment due to the offender's intoxication, after considering the appropriate penalty under other subsections of section 154. Alternatively, the question was whether this phrase merely directed the judge to add four years to the statutory maximum penalty when intoxication was a factor.

The applicant argued that section 154(4) represented a deliberate and radical departure from previous law, as characterised by a former Chief Justice. The applicant contended that the wording implied a distinct sentencing step focused on the additional punishment for intoxication, rather than simply an adjustment to the overall statutory maximum. The applicant sought to demonstrate that the courts below had treated the provision as merely an arithmetical calculation of the maximum penalty, rather than a directive for a separate sentencing consideration.

Orders