Broad v The Queen - [2010] HCATrans 296

[2010] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B18 of 2010

B e t w e e n -
BARRY RAYMOND BROAD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 11.08 AM

MR P.E. SMITH: May it please the Court, I appear with MR A.M. HOARE for the applicant. (instructed by Robertson O’Gorman Solicitors)

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with MS A.L. MEISENHELTER for the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Smith.

MR SMITH: Your Honours, Mr Broad says the special leave question in this case involves the extent to which a sentencing judge may go behind an agreed fact negotiated between the Crown and the defence before sentence. It is submitted that this is a very important question to the administration of criminal justice because often the parties do negotiate detailed facts, pleas of guilty are entered on that basis and parties have expectations when they go to court.

This Court has not directly dealt with this point, I submit to the Court, in previous decisions. Other decisions of this Court deal, for example, in Malvaso’s Case (1989) 168 CLR 227 with plea agreements and the effect of a fact on sentence, but the circumstances and limits of a judge’s investigative powers, I submit to the Court, have not been clearly set out by the High Court previously, hence, special leave is sought in this case. Your Honours, it is submitted by Mr Broad that this is an appropriate vehicle for special leave because we know what sentences the co‑offenders received here.

Your Honours may have seen from the material that the head of the operation, Mr Janusaitis – admittedly my client had some previous convictions, your Honours may have seen, and I think Mr Janusaitis did not – but he being the head of the operation received six and a half years with a recommendation for parole after 20 months. My client, being lower down the scale, received seven years with 27 months for parole. I have set out in the submissions how all of the other offenders received less than my client received. So the submission is that the facts the judge found in this case directly affected the sentencing results for Mr Broad, hence, the applicant submits this is an appropriate vehicle for special leave in this case.

HAYNE J: Was the amount of marijuana at stake a total of 220 pounds?

MR SMITH: It was between 122 and 222 pounds, your Honour, somewhere between those two figures.

HAYNE J: The point of controversy at the point of sentencing was whether Mr Broad’s financial advantage was limited to how much per pound?

MR SMITH: $100 per pound, your Honour. There were actually three facts which…

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.

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Details

Case: [2010] HCATrans 296
Decision Date

CaseChat Overview and Summary

In *Broad v The Queen*, the High Court of Australia considered an appeal by the applicant, Broad, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the directions given to the jury by the trial judge.

The primary legal issues before the High Court were whether the trial judge erred in admitting evidence obtained in breach of a statutory provision and whether the judge’s directions to the jury on the issue of self-defence were adequate. Specifically, the court had to determine if the admission of the evidence, despite its potentially unlawful origin, was justified under the relevant evidentiary rules, and if the jury had been properly instructed on the elements of self-defence, including the requirement for an honest and reasonable belief in the need to use force.

The High Court, comprising Hayne and Crennan JJ, analysed the provisions of the *Crimes Act 1958* (Vic) concerning the admissibility of evidence obtained in contravention of a law. Their Honours affirmed that while evidence obtained in contravention of a law may be excluded, its admission is not automatic. The court applied the principle that the probative value of the evidence must be weighed against its prejudicial effect, considering the circumstances of its acquisition. Regarding the self-defence directions, the court examined whether the jury had been adequately informed of the subjective and objective elements required to establish self-defence, particularly the need for an honest belief that the use of force was necessary and that the force used was reasonable in the circumstances as the accused perceived them.

The appeal was dismissed, with the High Court finding no error in the trial judge's rulings or directions that would warrant setting aside the conviction.

Orders