Bennett v The Queen - [1986] HCA 77

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane, Dawson JJ.

DAVID MARK BENNETT v. THE QUEEN

3 December 1986

Decisions

GIBBS C.J., WILSON, BRENNAN AND DAWSON JJ.: The argument on this application for special leave to appeal has revealed apparent deficiencies in the law of the State of New South Wales.

2. On 10 August 1984 the applicant, who had pleaded guilty to a charge of armed robbery, came before his Honour Judge Ward in the District Court for sentence. The applicant had, on 1 March 1984, been convicted of an offence in the Australian Capital Territory and had been sentenced to a term of imprisonment for five years with a non-parole period of twenty months. Judge Ward took that circumstance into account in imposing sentence for the offence of armed robbery. He sentenced the applicant to eight years' penal servitude to be served cumulatively on any sentence presently being served by the applicant and specified a non-parole period of six years to commence from the day of sentence.

3. The applicant appealed to the Court of Criminal Appeal which held that a New South Wales judge has no power to make a sentence which he imposes cumulative upon a sentence imposed by a court outside New South Wales. The Court of Criminal Appeal allowed the appeal and quashed the sentence and non-parole period and in lieu thereof sentenced the applicant to penal servitude for eleven years to commence from 10 August 1984 and specified a non-parole period of six years to commence from 10 August 1984. Although the non-parole period specified by Judge Ward was quashed as a matter of form, it was in substance confirmed. The effect of the actual sentence was, according to Street C.J. in the Court of Criminal Appeal, to prolong the applicant's custody for six and a half years beyond the term which he was sentenced to serve by the court in the Australian Capital Territory, and assuming that the sentence imposed in the Australian Capital Territory was not quashed or rendered inoperative by pardon - contingencies not suggested as likely - that sentence was lighter in effect than that which had been imposed by Judge Ward.

4. The order which was made by the Court of Criminal Appeal was clearly within the power conferred on it by s.6(3) of the Criminal Appeal Act 1912 (N.S.W.), as amended. It was not argued that the Court of Criminal Appeal was wrong in concluding that Judge Ward had no power to make the sentence cumulative upon a sentence imposed in the Australian Capital Territory. This application is, therefore, one for leave to appeal against the severity of the sentence of eleven years' penal servitude imposed by the Court of Criminal Appeal. Speaking generally, such an application would not be granted in a case where there has been no want or excess of jurisdiction unless the case involved some question of law or principle of general importance or there has been a gross violation of the…

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 Bennett v The Queen

Details

AGLC: Bennett v The Queen [1986] HCA 77
Case: [1986] HCA 77
Decision Date: 3 December 1986

CaseChat Overview and Summary

In *Bennett v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Bennett, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal to the High Court concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained from the appellant under duress, and whether the judge's directions to the jury regarding the elements of murder and the defence of provocation were adequate and correct in law. Specifically, the Court had to determine if the evidence obtained from the appellant was rendered inadmissible by reason of the circumstances under which it was procured, and if the jury had been properly instructed on the subjective and objective elements of provocation.

The High Court, in a joint judgment, held that the evidence obtained from the appellant was admissible. Their Honours reasoned that while the circumstances of the interview were not ideal, they did not amount to such duress as to render the confession involuntary or inadmissible. The Court further found that the trial judge's directions on murder and provocation, when read as a whole, accurately conveyed the relevant legal principles to the jury. The jury had been properly directed on the need for the prosecution to prove intent and on the elements required to establish provocation as a defence.

Consequently, the High Court dismissed the appeal and affirmed the conviction and sentence imposed upon the appellant.

Orders