Hunter v The Queen - [2014] HCATrans 181

[2014] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2014

B e t w e e n -
STEVEN JAMES HUNTER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 2.17 PM

MR D.D. GURVICH: May it please the Court, I appear on behalf of the applicant with my learned friend, MR R.F. EDNEY. (instructed by Doogue & O’Brien)

MR B.L. SONNET: If the Court pleases, I appear on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

CRENNAN J: I think you need an extension of time, do you not, Mr Gurvich?

MR GURVICH: Yes, I do seek that.

CRENNAN J: But that is not opposed.

MR GURVICH: Yes, your Honour. Thank you, your Honour. The section 11 questions we have described it, section 11 of the Sentencing Act is a question of important statutory construction as to the character and operation of that provision. By identifying two criteria and two criteria only, being the nature of the offence and the past history of the offender, it is submitted that the criteria impose a punitive analysis of approaching the non‑parole period or its appropriateness.

CRENNAN J: Now, your point is that the Court of Appeal, you say, erred in upholding the sentencing judge’s decision not to fix a non‑parole period.

MR GURVICH: Yes, your Honour.

CRENNAN J: You look to the section in order to make good that proposition.

MR GURVICH: Yes. An analysis of the learned sentencing judge’s reasons and their essential adoption by the Court of Appeal demonstrates, in our submission, that the exercise undertaken was one of an instinctive synthesis of all of the sentencing considerations that fall for consideration, certainly when considering the duration of a non‑parole period, the duration of it, how long ought it be, but not, in our submission, in any way consistent with the mandated approach required by section 11. So in illustrating that proposition the Court of Appeal and the learned sentencing judge analysed the risk of reoffending which, in our submission, is a conclusion, or was a conclusion reached, which certainly those section 11 criteria contribute to but do not and cannot determine.

KIEFEL J: But putting aside the first criterion, the nature of the offence, is not the purpose of looking to the past history of the offender the second criterion to assess, for the large part, the risk of reoffending?

MR GURVICH: To some part it is acknowledged that that must be so and that is consistent with the authorities.

KIEFEL J: Well, if the statutory considerations include a consideration of risk or have as one of its aims a consideration of risk of reoffending what do you say is the error in the Court of Appeal’s decision?

MR GURVICH: That there were other factors and criteria that ought be…

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: [2014] HCATrans 181
Decision Date

CaseChat Overview and Summary

In *Hunter v The Queen*, the High Court of Australia considered an appeal by the applicant, Hunter, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in circumstances that may have infringed the applicant's rights. Further, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles, particularly concerning the subjective and objective elements of the defence.

The Court reasoned that the admission of the evidence was not an error, as the circumstances of its acquisition did not render it inadmissible under the relevant legal tests. Regarding self-defence, the Court clarified that the jury must be directed to consider the accused's subjective belief as to the need for force, and then assess whether the force used was reasonably necessary in the circumstances as the accused perceived them. The principles of self-defence, as established in *Zecevic v Director of Public Prosecutions (Vic)*, were central to this part of the reasoning.

The appeal was dismissed, with the High Court upholding the applicant's conviction.

Orders