Hunter v The Queen

[1988] HCA 35

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Dawson, Toohey and Gaudron JJ.

ROBERT ELLWOOD HUNTER v. THE QUEEN F.C. 88/030 (ORAL)

1 July 1988

Decision

MASON C.J., WILSON, DAWSON, TOOHEY AND GAUDRON JJ: The primary ground advanced in support of this application for special leave to appeal is that the Court of Criminal Appeal, on setting aside the applicant's conviction for murder and substituting a conviction for manslaughter, sentenced the applicant to imprisonment for twenty years, without giving him an opportunity of presenting submissions on the question of sentence. The applicant's appeal against his conviction for murder was heard on 21 September 1987. After reserving its decision on the appeal, the Court of Criminal Appeal delivered judgment on 16 October 1987. By its judgment the court allowed the appeal, set aside the verdict of murder, substituting a verdict of manslaughter, directed that a conviction for that offence be entered and sentenced the applicant to imprisonment with hard labour for twenty years. The majority in the Court of Criminal Appeal upheld the first ground of appeal set out in the applicant's notice of appeal, namely, that the trial judge had erred in law in failing to put the issue of provocation to the jury, and concluded that a conviction for manslaughter should be entered in preference to ordering a new trial on the indictment, there having been four trials on that indictment.

2. At the time of delivering its judgment the Court of Criminal Appeal did not invite the parties to present submissions on the question of sentence. Indeed, counsel for the applicant was not in court on that occasion. No submission on the matter of sentence was made to the court during the hearing of the appeal. That was understandable. The substitution of a verdict of manslaughter for that of murder was then a question still to be resolved by the court. We are told that during the appeal counsel for the applicant asked the court, in the event that it should conclude that a verdict of manslaughter should be substituted for murder, to remit the question of sentence to the trial judge.

3. Counsel for the Crown accepts that the applicant had a right to be heard on sentence and that the deprivation of that right would warrant the grant of special leave to appeal. In the circumstances as we have already outlined them, it is plain that the applicant was effectively deprived of his right to be heard on sentence. It may be that this came about as a result of some misunderstanding between counsel for the applicant and the court. Be that as it may, the fact remains that the applicant was effectively denied the opportunity of presenting a submission on the matter of sentence. For that reason the sentence of twenty years imprisonment must be set aside and the applicant given the opportunity of presenting submissions to the trial judge on the matter of sentence.

4. Counsel for the applicant relied on other grounds with a view to seeking a new trial limited to the issue of manslaughter. It is sufficient for us to say that in the particular circumstances of this case these grounds are without merit.

5. In the result we grant special leave to appeal, allow the appeal, set aside the sentence of imprisonment for twenty years and remand the applicant in custody to appear before the trial judge for sentence.

Orders

Special leave to appeal granted.

Appeal allowed.

Set aside the sentence of imprisonment imposed upon the applicant and remand the applicant in custody to appear before the trial judge for sentence.