Matthew James Bunning v The Queen - [2011] HCASL 21

MATTHEW JAMES BUNNING
v
THE QUEEN
[2011] HCASL 21
M138/2010

The applicant pleaded guilty to charges of 10 counts of misconduct in public office. The charges related to the applicant's misuse of confidential information obtained by him whilst a serving officer of Victoria Police, including information regarding police drug trafficking investigations. The applicant also pleaded guilty to other charges which are not relevant to the present application. On 23 October 2006, the applicant was sentenced by Judge Nicholson in the County Court of Victoria. The applicant appealed against the sentence imposed. The Court of Appeal (Maxwell P, Kellam JA and Whelan AJA) allowed his appeal against sentence and re-sentenced the applicant. It delivered this judgment on 27 September 2007. The appeal was against sentence not conviction.
This is the second application for special leave to appeal to this Court from the decision of the Court of Appeal. Previously, this Court (Kirby and Heydon JJ) refused the applicant special leave to appeal against the sentence imposed by the Court of Appeal. The applicant had submitted that the Court of Appeal had failed to take into account a number of mitigating factors when re‑sentencing him.
In the present application, the applicant's primary ground of appeal is that he erroneously pleaded guilty to the charges of misconduct in public office in the mistaken belief that motive was not a relevant element of the offence. He submits that the prosecution failed to establish that the "improper motive" element of the offence had been established beyond reasonable doubt. What the applicant refers to as a requirement to prove "improper motive" may be seen as the requirement of the prosecution to prove that the particular act or acts were without reasonable excuse or justification.
The applicant requires an extension of time to bring this application. The extension of time should be refused because the projected appeal to this Court would be incompetent. There is no decision of the Court of Appeal upon any appeal against conviction. The applicant relies upon statements by the Court of Appeal when dealing with the appeal against sentence.
We direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow S.M. Kiefel

9 March 2011

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.

Keep reading for free

Create a free CaseChat account to read Matthew James Bunning v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] HCASL 21
Decision Date

CaseChat Overview and Summary

Matthew James Bunning appealed to the High Court against the decision of the Court of Appeal which had re-sentenced him after he pleaded guilty to 10 counts of misconduct in public office. Bunning argued that he pleaded guilty erroneously, believing that motive was not a relevant element of the offence. He claimed that the prosecution did not establish that the "improper motive" element of the offence was proven beyond reasonable doubt. Bunning also sought an extension of time to bring this application. The High Court considered the appeal and found that Bunning's projected appeal would be incompetent, as there was no decision of the Court of Appeal upon any appeal against conviction. Instead, Bunning relied on statements made by the Court of Appeal when dealing with the appeal against sentence. The Court concluded that the extension of time should be refused, and Bunning's application for special leave to appeal was dismissed.

The primary legal issue in this case was whether Bunning's appeal against the Court of Appeal's decision could proceed, given that he pleaded guilty to the charges and there was no appeal against conviction. The Court also needed to determine if Bunning's belief that motive was not a relevant element of the offence was sufficient grounds for allowing the appeal. The Court held that Bunning's appeal was incompetent, as he did not challenge the decision of the Court of Appeal on any appeal against conviction. The Court further found that Bunning's mistaken belief about the relevance of motive in the offence did not provide a valid basis for the appeal.

In reaching its decision, the Court considered the nature of Bunning's appeal and the basis on which it was made. The Court found that the appeal was against the re-sentencing by the Court of Appeal, but there was no appeal against conviction. The Court held that an appeal against sentence alone was not sufficient to warrant special leave to appeal. The Court also noted that Bunning's mistaken belief about the relevance of motive in the offence did not affect the validity of his guilty plea, as he had been advised by his legal counsel. The Court concluded that Bunning's appeal was incompetent, and his application for special leave to appeal was dismissed.

The final orders of the Court were to direct the Registrar to draw up, sign and seal an order dismissing Bunning's application for special leave to appeal. The Court found that the appeal was incompetent, as it was not based on any decision of the Court of Appeal upon an appeal against conviction. The Court also held that Bunning's mistaken belief about the relevance of motive in the offence did not provide a valid basis for the appeal. The Court dismissed Bunning's application, and his appeal against the decision of the Court of Appeal was not allowed.

Orders