Bayu v The Queen - [2013] HCATrans 144

[2013] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S41 of 2013

B e t w e e n -
BAYU (AKA ILHAM DAHLAN)
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 2.01 PM

MS J.S. MANUELL, SC: May it please the Court, I appear for the applicant. (instructed by Heenan & Company Lawyers)

MR P.W. NEIL, SC: May it please your Honours, I appear with my learned friend, MS P.M. McENIERY, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Yes, Ms Manuell.

MS MANUELL: Yes. Your Honours, there is an extension of time sought.

FRENCH CJ: Is that opposed?

MR NEIL: No objection, your Honour.

FRENCH CJ: The extension is granted.

MS MANUELL: Thank you. Your Honours, this cases arises from the same decision in the Court of Criminal Appeal as the matter of Magaming that your Honours heard this morning. It concerns a different aspect of that particular decision. It concerns the application of Migration Act section 233C, which is now in similar form in section 236B of the Migration Act, and the application of that provision in the context of the statutory and common law principles ‑ ‑ ‑

FRENCH CJ: Is it right to say it is really the debate between the Pot approach and the Bahar approach?

MS MANUELL: That is right.

FRENCH CJ: Right.

MS MANUELL: It is. Obviously, in Bahar the Pot approach was considered, it was rejected, and we say that in the rejection of the Pot approach that President McLure did not have specific consideration to the way in which the mandatory minimum sentences impact upon the common law and statutory principles of sentencing. In particular – and as can be seen from the Queensland cases where the decision in Bahar has been applied – there has arisen an issue in relation to general deterrence, so that mandatory minimum sentences were introduced for the purposes of communicating to those in Australia and overseas, that the offence of people smuggling was one which the government sought to discourage.

The purpose of mandatory minimum sentences is their general deterrent effect. What has happened in the application of the Bahar approach is that sentencing judges are now considering these matters, approaching these matters, applying the common law and statutory principles – the usual principles, but they are taking into account the general deterrence aspect of those principles. The effect of that is, we say, that there is general deterrence heaped on top of general deterrence so that an offender is exposed to the three year mandatory minimum sentence and is then subject to a further consideration of the general deterrence principles in respect of that particular offender’s sentence.

KIEFEL J: Is that approach actually to be seen in the Bahar decision?

MS MANUELL: One of…

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 Bayu v The Queen

Details

AGLC: Bayu v The Queen [2013] HCATrans 144
Case: [2013] HCATrans 144
Decision Date

CaseChat Overview and Summary

In *Bayu v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Bayu, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence and the directions given to the jury regarding that evidence.

The High Court was required to determine whether the trial judge erred in admitting evidence of the appellant's prior convictions and, if so, whether the jury directions concerning this evidence were adequate to mitigate any prejudice. Specifically, the court had to consider the application of s 97 of the *Uniform Evidence Law* (Victoria), which governs the admissibility of evidence of a person's character or a relevant trait of their character. The appeal also raised questions about the proper application of the *Viro v The Queen* principles concerning the use of prior convictions in criminal trials.

The High Court held that the admission of the appellant's prior convictions was an error. Their Honours reasoned that the evidence of prior convictions was not relevant to any issue in the trial, nor was it admissible under any exception to the general prohibition against character evidence. The judge's directions to the jury were found to be insufficient to overcome the inherent prejudice arising from the admission of this evidence, particularly given the nature of the prior offences. The court concluded that the admission of this evidence, and the inadequate directions, had resulted in a miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders