David Muir v The Queen - [2003] ACTCA 2

David Muir v The Queen [2003] ACTCA 2 (10 February 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 61-2001
No. SCA 8 of 2002

Judges: Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date: 10 February 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2001
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2002
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS CJ:

The Court has come to a concluded view about the disposition of the appeal. For my part, I will simply state shortly, that it seems to me that, in the circumstances in which this sentencing process was carried out, it is unlikely that s 16G (Crimes Act 1914 (Cth)) was not given effect to by his Honour and if it were necessary to come to a positive finding about it, I am satisfied that it was taken into account in fixing the sentence, in the sense that, of course, any adjustment that needed to be made to the sentence for any remissions or reductions in sentence was given effect to.

The onus, of course, is on the appellant to establish that there was error and I am not satisfied that any error existed. I would say too that the sentence imposed does not appear, even when I am consciously taking section 16G into account for my part, to be manifestly erroneous and I would therefore dismiss the appeal.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 24 February 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2002
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P

I agree that the appeal should be dismissed for the reasons advanced by the Chief Justice and I have nothing to add.

I certify that the preceding paragraph numbered three (3) is a…

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.

Keep reading for free

Create a free CaseChat account to read David Muir v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] ACTCA 2
Decision Date

CaseChat Overview and Summary

The appeal before the Court of Appeal of the Australian Capital Territory concerned David Muir and the Crown. Muir appealed against a sentence imposed by a judge of the Supreme Court of the Australian Capital Territory.

The central legal issue before the Court of Appeal was whether the sentencing judge had properly taken into account section 16G of the *Crimes Act 1914* (Cth) when determining the sentence. This section relates to the calculation of remissions and reductions in sentence. The appellant bore the onus of establishing that there was an error in the sentencing process.

The Court of Appeal, comprising Higgins CJ, Crispin P, and Madgwick J, dismissed the appeal. Higgins CJ was satisfied that section 16G was given effect to, or at least taken into account, in fixing the sentence, and found no manifest error. Crispin P agreed with Higgins CJ and added nothing further. Madgwick J went further, finding it impossible to conclude that a proper application of section 16G to the serious white-collar crimes committed would yield a result other than the sentence imposed, which included a non-parole period of three years and six months and total head sentences of seven and a half years.

Orders