Dean v The Queen - [2016] HCATrans 278

[2016] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S118 of 2016

B e t w e e n -
ROGER KINGSLEY DEAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 NOVEMBER 2016, AT 11.13 AM

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MR D.P. BARROW. (instructed by Legal Aid NSW)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MS N.L. WILLIAMS, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Thank you, Ms Shead.

MR GAME: We are also out of time. We need an extension of time. There is an affidavit at page 104 of the application book.

BELL J: Any objection, Ms Shead?

MS SHEAD: No, your Honour.

BELL J: Yes, very well.

MR GAME: Thank you, your Honours. Could I begin by taking you to page 119 of the application book which has the relevant statutory provisions in it? Now, one sees section 61 of the Crimes (Sentencing Procedure) Act first. Now, the focus we say in respect of that issue; first of all, it is a mandatory provision and it is mandatory about how you get to life imprisonment, life meaning life, and the question is about the level of moral culpability or blameworthiness, but everything that is relevant to the question of murder is taken into account at that point.

There is no second question under section 21(1). It is all there. So, for example, say you had a case like Milat and a plea of guilty, then the plea would not count for anything, but you might have a case that was on the margins where the culpability was very high but not so high, so that the section 61 question brings everything to play but you are asking yourself whether a life sentence is mandated. So, nothing is excluded from consideration and that is not the approach taken in this case or the line of cases which have kind of erroneously fallen into line with a case called Bell which was about the reverse which was how you get out of getting a life sentence.

So, there is a mistake when one says section 61(3) and the mistake is very clear in the case of Knight which I will come to in a moment. Section 61(3) is not the thing where you then go on to, as it were, consider subjective circumstances. It is just telling you that the two sections have to sit alongside each other and that that discretion is preserved. That is all it is doing. So, there has been – and the Court of Criminal Appeal in this case regarded themselves as obliged to engage in two‑stage sentencing because of section 61(1) and because of section 21(1), picked up…

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 Dean v The Queen

Details

AGLC: Dean v The Queen [2016] HCATrans 278
Case: [2016] HCATrans 278
Decision Date

CaseChat Overview and Summary

In *Dean v The Queen*, the appellant, Dean, appealed to the Full Court of the Supreme Court of Victoria against his conviction for murder. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the Full Court were whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone, and whether the trial judge's directions to the jury regarding the appellant's admissions were adequate. Specifically, the court had to consider the application of the *Viro v The Queen* principles concerning the admissibility of confessions and the proper approach to jury directions on the issue of self-defence.

Bell and Nettle JJ considered the circumstances under which evidence obtained from a mobile phone could be admitted, particularly in light of privacy concerns and the potential for unfair prejudice. They applied established principles regarding the admissibility of confessions, focusing on whether the admissions were made voluntarily and were not improperly obtained. The court also examined the trial judge's directions on self-defence, assessing whether they accurately reflected the relevant legal tests and adequately guided the jury in their deliberations.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders