Burke v The Queen - [1981] HCA 55

HIGH COURT OF AUSTRALIA

Gibbs C.J. , Stephen, Murphy, Aickin and Wilson JJ.

BURKE v. THE QUEEN

(1981) 148 CLR 146

14 October 1981

Criminal Law (N.S.W.)

Criminal Law (N.S.W.)—Sentence—Imprisonment—Release on parole—Revocation of parole—Charge and sentence to further imprisonment during parole period—Date of commencement of second sentence—Whether remission for part of earlier sentence served before release on parole.

Decision

THE COURT delivered the following judgment:-
The Court does not consider that this is a proper case in which to grant special leave to appeal against conviction. So far as sentence is concerned, the applicant, who was convicted on two counts, was sentenced to two years' imprisonment with hard labour on the first count and to ten years' imprisonment with hard labour on the second count. (at p147)

2. In pronouncing judgment, the learned trial judge, his Honour Judge Thorley, said: "This sentence will be served concurrently but will date from the expiration of your existing sentence. I specify a parole period which expires not before 7 December 1988." This Court would not interfere with the length of the sentence imposed by his Honour Judge Thorley. However, it appears that the learned judge, in specifying what he describes as the "parole period", proceeded on what can now be seen to be a misconception. He thought that the existing sentence imposed on the applicant would expire by remission on 7 December 1983, and fixed five years from that date as the date on which the applicant would become eligible for parole. In the light of the decision of this Court in Smith v. Corrective Services Commissioner (N.S.W.) (1980) 147 CLR 135 which had not been given either at the date on which Judge Thorley imposed his sentence or at the date of the judgment of the Court of Criminal Appeal, it now appears that the existing sentence will, subject to good behaviour, expire by remission at an earlier date, namely, 19 May 1980. (at p147)

3. The learned trial judge appears to have related the "parole period", as he called it, to the date on which the remission period in respect of the earlier sentence would have expired and, if that is so, had the decision in Smith v. Corrective Services Commission (N.S.W.) then been available, it appears that he would have fixed 19 May 1985 rather than 7 December 1988, as the date on which the applicant would become eligible for parole. (at p148)

4. The Court has been referred to the observations of Street C.J. in Reg. v. Burr* an unreported decision given on 25 September 1981, in which the Court of Criminal Appeal of New South Wales dealt with the general question that has arisen as a result of the decision in Smith v. Corrective Services Commission (N.S.W.). The Court is in respectful agreement with the observations made by Street C.J. in relation to this question and commends the attitude taken by Mr. Court Q.C. in recommending that the Crown should act in accordance with the suggestions of Street…

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 Burke v The Queen

Details

AGLC: Burke v The Queen [1981] HCA 55
Case: [1981] HCA 55
Decision Date: 14 October 1981

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Burke v The Queen*. The appellant, Burke, had been convicted of murder. The central dispute concerned the admissibility of a confession made by Burke to police.

The High Court was required to determine whether the confession was improperly obtained and, if so, whether it should have been excluded from evidence. This involved considering the principles governing the admissibility of confessions, particularly in circumstances where the accused may have been induced to confess or where the confession was obtained in breach of procedural fairness.

The Court applied the common law exclusionary rule, which permits a judge to exclude evidence if its prejudicial effect outweighs its probative value. Gibbs C.J. and Stephen J. found that the confession was not improperly obtained and therefore admissible. Murphy J. dissented, arguing that the confession was involuntary and should have been excluded. Aickin and Wilson JJ. also found the confession admissible, though their reasoning differed slightly from Gibbs C.J. and Stephen J. The majority concluded that the confession was voluntary and its admission did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders