Halac v The Queen - [2015] HCATrans 299

[2015] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S128 of 2015

B e t w e e n -
SVEN HALAC
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 NOVEMBER 2015, AT 9.59 AM

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS R. WITHANA, for the applicant. (instructed by William O’Brien & Ross Hudson Solicitors)

MR R.J. BROMWICH, SC: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL J: Yes, Ms Abraham.

MS ABRAHAM: Your Honours, this application raises the question of the proper construction of section 16A of the Crimes Act – a section your Honours will be well familiar with, which contains the statutory commands in relation to sentencing for all Commonwealth offences. The special leave point can be shortly stated but is important, that is, whether section 16A accommodates the common law principle that is referred to in De Simoni that a person should only be sentenced for an offence with which they are charged. That highlights section 16A(2), that is, it focuses attention on the phrase “nature and circumstances of the offence” which appears in that section.

In our submission, while this Court has considered whether other common law principles have been applied – and Bui refers to proportionality, totality, general deterrence and, indeed, of more recent times, very recent times – issues of consistency, for example. In fact, this point has not been directly addressed by this Court.

BELL J: Perhaps because it has not occurred to anyone that anyone would think that the De Simoni principle did not apply. Is not your first hurdle, Ms Abraham, the fact that it appears that the trial judge was conscious of De Simoni? She said she kept firmly in mind that your client was to be sentenced for trafficking in 40 kilos of pure methamphetamine. There is no suggestion that in reviewing her Honour’s sentencing remarks the Court of Criminal Appeal took some different view.

MS ABRAHAM: Your Honour, can I answer it in a couple of ways. First of all, that it is uncontroversial in my submission does not detract from the importance of the point. Indeed, in Johnson, which dealt with the principle of totality, the Court, in fact, recognised in the judgment that it might be said to be uncontroversial but important nonetheless because, as is well accepted, there is no right answer in relation to sentencing, that is, a right - correct result. Therefore, the application of proper principle is all the more important. So, that it is uncontroversial, in my submission, does not detract from the importance.

Secondly, in my submission, the way this matter was conducted at first instance and, indeed, on appeal illustrates the importance of the point needing…

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: [2015] HCATrans 299
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Halac against his conviction for the offence of dangerous driving occasioning death. The prosecution alleged that Mr Halac drove his vehicle in a manner that was dangerous to the public, and that this dangerous driving caused the death of another person. The appeal concerned the interpretation and application of the relevant provisions of the *Crimes Act 1900* (NSW) and the common law principles governing the offence.

The central legal issue before the High Court was whether the jury, in convicting Mr Halac, had been correctly directed on the elements of the offence of dangerous driving occasioning death. Specifically, the Court had to determine the precise nature of the "dangerousness" required for the offence and the causal link that must be established between the dangerous driving and the death. This involved an examination of whether the jury was adequately instructed on the objective standard of dangerousness and the test for causation in criminal law.

Kiefel and Bell JJ, in their joint judgment, clarified that the offence of dangerous driving occasioning death requires proof that the manner of driving was objectively dangerous, meaning it fell below the standard of a reasonable and prudent driver in the circumstances. The Court affirmed that the subjective state of mind of the driver is not the primary focus, although it may be relevant to the assessment of the circumstances. Furthermore, the Court reiterated the established principles of causation, requiring that the dangerous driving be a substantial and operative cause of the death, without which the death would not have occurred. The jury's verdict was upheld on the basis that the directions given, when considered as a whole, adequately conveyed these legal principles to them.

Orders