Bugmy v The Queen - [2013] HCATrans 167

[2013] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S99 of 2013

B e t w e e n -
WILLIAM DAVID BUGMY
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 AUGUST 2013, AT 10.15 AM

MS D. YEHIA, SC: May it please the Court, I appear with my learned friend, MS G.A. BASHIR, on behalf of the appellant. (instructed by Aboriginal Legal Service (NSW/ACT) Ltd)

MR L.A. BABB, SC: I appear with MR K.H. ALDER, your Honours. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Yes, Ms Yehia.

MS YEHIA: I understand, your Honours, that the outline of oral argument is being distributed. Perhaps if I could just give your Honours a brief moment to have a look at that outline.

FRENCH CJ: Thank you. Yes.

MS YEHIA: Your Honours, the sole pleaded error of principle in the court below was manifest inadequacy. The grounds of appeal - and if I can take your Honours to the appeal book at page 163 ‑ ‑ ‑

HAYNE J: Sorry, what page?

MS YEHIA: Page 163.

HAYNE J: Thank you.

MS YEHIA: The original notice of appeal filed on 29 February 2012 pleaded a single ground of manifest inadequacy. The additional grounds, which are to be found at appeal book page 165, were filed on 12 July 2012. Those additional grounds are complaints as to weighting and not, in our submission, errors of principle. In order to identify the error in relation to the Court of Criminal Appeal’s application of section 5D could I take your Honours to the appeal book at page 196 commencing at paragraph 53 where it was said that in relation to what we say is the sole ground pleading error of principle that it was not necessary to deal with this ground. The court did not deal with issues of manifest inadequacy explicitly or, as I will go on to address your Honours, implicitly.

At paragraph 54, the court then referred to section 5D - this is at 196 of the appeal book - and, however, failed to consider the scope and limiting purposes of Crown appeals. The court then proceeded at paragraph 55 to conclude that, as a result of errors found:

in his Honour’s approach to the objective seriousness of the offence and the respondent’s subjective case, that a more severe sentence should have been imposed on the respondent –

There was no consideration at that point, or at any point, indeed, of the discretion. The Court of Criminal Appeal therefore erred, in our submission, in the application of section 5D, intervening without consideration of the sole pleaded error of principle, the scope and limiting purpose of section 5D or the discretion.

The situation here, your Honours, is similar to that that presented in Carroll - if…

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: [2013] HCATrans 167
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Bugmy against his conviction for murder and the sentence imposed. The central dispute concerned the application of the Mandatory Sentencing Act 1994 (NSW) to Mr Bugmy's case, specifically whether the Act applied to offences committed before its commencement.

The High Court was required to determine whether the Mandatory Sentencing Act 1994 (NSW) had retrospective operation, and if so, whether its application to Mr Bugmy's offence, which occurred prior to the Act's commencement, was constitutionally valid. A further issue was whether the sentencing judge had erred in applying the Act.

The Court held that the Mandatory Sentencing Act 1994 (NSW) did not have retrospective operation. Applying the principle that legislation should not be presumed to operate retrospectively unless expressly or by necessary implication, the Court found no such indication in the Act. Consequently, the Act could not be applied to Mr Bugmy's offence committed before its commencement. The sentencing judge's error in applying the Act meant that the sentence imposed was invalid.

The High Court allowed the appeal, quashed the sentence imposed by the sentencing judge, and remitted the matter to the Supreme Court of New South Wales for resentencing according to law.

Orders