Bulejcik v The Queen - [1995] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S74 of 1995

B e t w e e n -
ANTON BULEJCIK
Applicant
and
THE QUEEN

Respondent

Application for bail

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 NOVEMBER 1995, AT 9.36 AM

MR G. WENDLER: If the Court pleases, I appear for the appellant. (instructed by Brock Partners)

MR R.N. HOWIE, QC: I appear for the respondent Crown, your Honour. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions, New South Wales))

HIS HONOUR: Yes, Mr Wendler.

MR WENDLER: If the Court pleases.

HIS HONOUR: This appeal was heard on 6 October, was it not?

MR WENDLER: That is right, your Honour, and your Honour will recall that your Honour was a member, of course, of the quorum but entertained that appeal and reserved judgment on that day.

It may be useful to commence this application by inviting your Honour to the affidavit which accompanied the summons activating the application. Can I just invite your Honour to that affidavit. It is the affidavit of Kevin McMaster Rodgers dated 9 November 1995. I just seek leave to read or, rather, identify a couple of paragraphs in it.

HIS HONOUR: Just a minute. Now, you are moving on a summons that was filed on 13 November.

MR WENDLER: Filed on the same day.

HIS HONOUR: And on the affidavit of Kevin McMaster Rodgers, filed on the same day.

MR WENDLER: That is right, yes.

HIS HONOUR: Any objection to that affidavit, Mr Howie?

MR HOWIE: No, your Honour.

MR WENDLER: Your Honour, paragraph 5 - if I could just invite your Honour to that paragraph. That is perhaps the most useful starting point. Identified there is the sentence of imprisonment that was imposed by a District Court judge in the State of New South Wales on 23 November 1993. The minimum term imposed was three years and that term was to expire on 15 October 1996. So, that immediately introduces the first relevant feature, namely, that the appellant has exhausted virtually all of the minimum term. Indeed, if this Court were not to give judgment until, say, the middle of next year, it can be fairly said that virtually all of the minimum term will have expired. So that then raises - - -

HIS HONOUR: The minimum term expires 15 October 1996.

MR WENDLER: 1996, yes. Now, this raises or introduces the first feature of this application - relevant feature - namely, that the applicant will have exhausted the bulk of the minimum term of his imprisonment. In my respectful submission, that is a - - -

HIS HONOUR: Well, he has still got one-third to go at the moment.

MR WENDLER: He has but one of the difficulties of this application, one does not know when the Court will give judgment in this matter.

HIS HONOUR: No, I had that in mind, obviously.…

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 Bulejcik v The Queen

Details

AGLC: Bulejcik v The Queen [1995] HCATrans 354
Case: [1995] HCATrans 354
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Bulejcik, against the judgment of the Supreme Court of Victoria (Court of Appeal). The applicant sought to challenge his conviction for murder and the subsequent sentence imposed.

The primary legal issue before the High Court was whether the applicant's conviction was unsafe or unsatisfactory, particularly in light of alleged errors in the trial judge's directions to the jury concerning the defence of provocation. The applicant contended that the jury had not been adequately instructed on the subjective and objective elements of provocation, and that this failure had led to a miscarriage of justice.

Gummow J, in chambers, considered the grounds of appeal and the relevant legal principles governing the defence of provocation under Australian criminal law. His Honour reviewed the evidence presented at trial and the summing up of the trial judge. Ultimately, Gummow J found that the grounds of appeal did not disclose any arguable error of law or fact that would warrant the grant of special leave to appeal. The application was therefore dismissed.

Orders