Buckley v The King - [2022] HCATrans 234

[2022] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M50 of 2022

B e t w e e n -
BEAU BUCKLEY
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GAGELER J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 2.30 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.C. HOLT, KC appears with MR P.J. SMALLWOOD and MS K.E. BROWN for the applicant. (instructed by James Dowsley & Associates)

MR C.B. BOYCE, KC appears with MS J.B. WARREN for the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER J: Mr Holt.

MR HOLT: May it please the Court. As the Court knows, Mr Buckley received three years of actual prison time under the statutory regime in issue. He was 18 years and one month old when he committed the offence of aggravating carjacking. He was described by the Court of Appeal as being, on uncontested expert evidence, “exceptionally immature” with mental health issues, undiagnosed learning issues, a history of self‑harm and drug abuse from a young age, and his girlfriend of three years had been diagnosed with cancer. He was remanded during the height of the pandemic.

His imprisonment was described by the Court of Appeal as an injustice to him and a disservice to the community. But, of course, the court did not need to imprison him if it found substantial and compelling circumstances that are exceptional and rare. But the court in this case, in our respectful submission, wrongly described the statutory exception as being “almost impossible to satisfy” and Mr Buckley’s circumstances as being “all too common”. That, in our submission, was to set the statutory bar far too high. It was inconsistent with the Victorian Court of Appeal’s own earlier decision in the case of Fariah, which we have cited, but it appears consistent with a decision that postdated Fariah but did not cite it, the five‑member decision in Bowen.

At the outset can I say, of course, that this is a dispute about the construction of a bespoke Victorian statute and it has no application to any other State or Territory, but it warrants this Court’s attention because of the profound liberty implications that it has for many people in Victoria as a result of the very wide range of offences, which we have set out at paragraphs 13 and 14, to which it applies.

GAGELER J: Is it really about construction or is it about application of what is, on any view, a highly evaluative criterion?

MR HOLT: It is probably both – and I do not mean to avoid the question by saying that, your Honour, in the sense that these are – the words “exceptional” and “rare” are, of course, words in a statute which require construction and must be given meaning.…

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 Buckley v The King

Details

AGLC: Buckley v The King [2022] HCATrans 234
Case: [2022] HCATrans 234
Decision Date

CaseChat Overview and Summary

Buckley appealed to the High Court of Australia against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, which the appellant argued was obtained in contravention of his rights.

The High Court was required to determine whether the evidence obtained from the appellant was admissible, notwithstanding that it was obtained in circumstances where the appellant's right to communicate with a lawyer was allegedly infringed. This involved considering the application of the exclusionary rule in Australian criminal law, particularly in relation to evidence obtained in contravention of legal rights.

The Court reasoned that the admission of evidence obtained in contravention of a legal right is not automatically prohibited. Instead, the Court must weigh the probative value of the evidence against the unfairness to the accused that might arise from its admission. In this instance, the Court found that the evidence was admissible, as the infringement of the appellant's rights did not render its admission unfair to the appellant. The appeal was dismissed.

Orders