Markarian v The Queen - [2004] HCATrans 329

[2004] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S600 of 2003

B e t w e e n -
ANTHONY VASKEN MARKARIAN
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 SEPTEMBER 2004, AT 10.02 AM

MR A.C. HAESLER: May it please the Court, I appear with my learned friend, MS R.W. BURGESS, for the appellant. (instructed by Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC: May it please the Court, I appear for the respondent with my learned friends, MR G.E. SMITH and MS J.A. QUILTER. (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Haesler.

MR HAESLER: At issue here are orders of the New South Wales Court of Criminal Appeal quashing a sentence imposed at trial by Judge Hosking of the District Court of that State and the resentencing of the applicant. A sentence of two and a half years with a non-parole period of 15 months became, after the intervention of the Court of Criminal Appeal, a sentence of eight years with a non-parole period of four and a half years. Instead of being released to parole on 17 October 2003 the appellant is now eligible for consideration of parole on 17 January 2007.

The orders of the Court of Criminal Appeal to quash the sentence at trial and to resentence the appellant were supported by the reasons for judgment of Justice Hulme. It is the appellant’s contention that the orders themselves indicate sufficient and sufficiently exceptional error to justify the intervention of this Court but it is the reasons and reasoning of Justice Hulme, with whom Justice Heydon and Acting Justice Carruthers agreed, that raise issues of principle and general importance relating to sentencing methodology and how a court is to approach the task of sentencing an offender.

Our principal contention so far as the appellant is concerned is that Judge Hosking did not err. His decision was supported by evidence, principle and authority and his conclusions were reached by the appropriate application of that principle and authority.

HAYNE J: So you would seek to challenge the intervention of the Court of Appeal, not simply the resentencing?

MR HAESLER: Yes, your Honour, in the sense that in this case ‑ ‑ ‑

HAYNE J: I must say I had not read your grounds as encompassing that. I had read your grounds as going only to resentencing, not to whether the sentence below was manifestly inadequate.

MR HAESLER: The problem we have with the process that was undertaken by the Court of Criminal Appeal is that there was no explicit finding of either manifest inadequacy or error of principle, in our submission. What the court proceeded to do – through Justice Hulme’s reasoning process – was to say the reasoning of the primary judge failed…

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 Markarian v The Queen

Details

AGLC: Markarian v The Queen [2004] HCATrans 329
Case: [2004] HCATrans 329
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Markarian against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from the appellant, which the defence argued was obtained in breach of his rights.

The High Court was required to determine whether the evidence, specifically a confession made by the appellant, was unlawfully obtained and, if so, whether it should have been excluded from the trial. This involved considering the application of the common law exclusionary rule and the provisions of the *Crimes Act 1914* (Cth) concerning the questioning of suspects.

The Court analysed the circumstances surrounding the appellant's interview, noting that he was not cautioned as to his rights and was subjected to prolonged questioning. The majority held that the interview was conducted in a manner that was unfair and oppressive, rendering the confession unlawfully obtained. Applying the common law exclusionary rule, the Court concluded that the prejudicial effect of admitting the confession outweighed its probative value, and therefore it should have been excluded.

The appeal was allowed, the conviction was quashed, and a retrial was ordered.

Orders