Leeth v The Queen - [1992] HCA 67

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

RICHARD SHIERK LEETH (Matter No. B29 of 1989); WILLIAM BRUCE KIRK (Matter No. B31 of 1989); DALE STEWART KIRK (Matter No. B37 of 1989) and PAUL JOSEPH DONOVAN (Matter No. B38 of 1989) v. THE QUEEN

(1992) 67 ALJR 167

16 December 1992

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. Each of the applicants pleaded guilty to a number of drug offences, including offences under the Customs Act 1901 (Cth), when arraigned before de Jersey J. in the Supreme Court of Queensland on 3 April 1989. His Honour found that the applicants were "major drug operators at an international level ... involved in some way or other in sophisticated drug dealings of mammoth proportions". He imposed sentences of imprisonment in respect of each of the offences to which the respective applicants had pleaded guilty. It is necessary to refer only to the longest term of imprisonment with hard labour imposed on each accused, for his Honour ordered that the shorter terms should be served concurrently with the longest term in each case. The applicant Leeth was sentenced to 25 years, the applicant William Bruce Kirk to 18 years, the applicant Dale Stewart Kirk to 18 years and the applicant Donovan to 20 years. His Honour recommended that Leeth not be considered for parole until he had served 14 years. No recommendation was made in respect of the other applicants. Presumably his Honour assumed that the Corrective Services Act 1988 (Q.) applied to the applicants, so that each of the applicants Kirk, Kirk and Donovan would be eligible for release on parole after serving half of the term of imprisonment to which he had been sentenced (s.166(1)) and the applicant Leeth would be eligible for release on parole after serving the period specified in the recommendation: s.166(3). In imposing these sentences, his Honour said he had considered the sentences imposed in other "arguably comparable drug cases".

2. On appeal to the Court of Criminal Appeal of Queensland, it was held that s.4(1)(b) of the Commonwealth Prisoners Act 1967 (Cth) required the Court to fix non-parole periods in the case of each of the applicants, each being a "federal offender" as defined in that Act. Although the Court of Criminal Appeal left the head sentences undisturbed, it fixed non-parole periods in each case as authorized by s.4(1)(b). The non-parole period was fixed, in the case of Leeth, at 12 1/2 years; in the case of William Bruce Kirk, at 8 1/2 years; in the case of Dale Stewart Kirk, at 8 1/2 years; and, in the case of Donovan, at 9 1/2 years. In fixing the non-parole periods, the Court of Criminal Appeal had regard to sentences imposed in cases in New South Wales which the Court regarded as comparable - in particular, the cases of two prisoners, Cornwell and Bull. Connolly J., who delivered the judgment of the Court, noted that in New…

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 Leeth v The Queen

Details

AGLC: Leeth v The Queen [1992] HCA 67
Case: [1992] HCA 67
Decision Date: 16 December 1992

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Leeth, against his conviction for murder. The dispute centred on the admissibility of certain evidence obtained during police investigations and the subsequent application of the law relating to self-defence.

The primary legal issues before the Court were whether the trial judge had erred in admitting evidence obtained in breach of statutory provisions and whether the jury had been adequately directed on the issue of self-defence, particularly concerning the subjective and objective elements of the defence. The Court also had to consider the application of the proviso to section 23(1) of the Criminal Appeal Act 1912 (NSW) in determining whether any error had occasioned a miscarriage of justice.

The Court held that the admission of the evidence obtained in breach of statutory provisions was a matter for the trial judge's discretion, to be exercised by balancing the probative value of the evidence against its prejudicial effect. In relation to self-defence, the Court affirmed that the defence requires both an honest belief by the accused that they were acting in self-defence and that the force used was reasonably necessary in the circumstances as the accused perceived them. The Court found that the jury directions on self-defence were deficient, failing to adequately explain the subjective and objective components.

Ultimately, the High Court allowed the appeal, quashed the conviction, and ordered a new trial. The Court concluded that the misdirection on self-defence, coupled with the admission of the improperly obtained evidence, had resulted in a miscarriage of justice.

Orders