Matthew Milata andTHE Queen - [2014] HCATrans 205

[2014] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S100 of 2014

B e t w e e n -
MATTHEW MILAT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 11.00 AM

MR J.S. STRATTON, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.J. PEARSALL. (instructed by Legal Aid NSW)

MR L.A. BABB, SC: Your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Mr Stratton, I think you require an extension of time.

MR STRATTON: Yes.

FRENCH CJ: Is that opposed?

MR BABB: Not opposed.

FRENCH CJ: The extension is granted. Yes, Mr Stratton.

MR STRATTON: Your Honours, this appeal, we say, raises two questions of general importance to the criminal justice system: first, whether a sentencing judge, having to determine that the starting point for a sentence, taking into account the relevant objective and subjective factors, having decided a sentence less than the maximum penalty is appropriate, is a judge entitled to allow no discount for an early plea; and, secondly, where two co‑offenders are sentenced for the same offence and both plead guilty and one offender is given a discount for his plea but the co‑offender is given no discount, is the co‑offender entitled to a legitimate sense of grievance.

FRENCH CJ: Why is not the first point just a matter of discretion?

MR STRATTON: It is a matter of discretion but it is submitted that it is a matter of discretion that has to be exercised in accordance with principle. Your Honours, it is conceded that this was a very bad case of murder. However, the applicant was still 17 years old at the time of the offence – in fact, 17 years and 11 months. His sole prior conviction was for a drink driving offence and he entered a plea of guilty at a very early stage, that is, in the Children’s Court. Similarly, the co‑offender, Klein, was 18 years old at the time of the offence. Similarly, his only prior convictions were driving matters. He also entered a plea of guilty but contested the facts.

Your Honours, in relation to the first ground, this Court has, in cases such as Signato and Cameron referred to the principle that ordinarily a plea of guilty is to be taken into account as a matter of mitigation, as a matter of willingness to facilitate the course of justice. In a guideline judgment of the New South Wales Court of Criminal Appeal in Thomson and Houlton then Chief Justice Spigelman said that there were some cases where the protection of the public required that a long sentence be imposed to protect the safety of the public and that no discount was appropriate. That is at paragraphs 157 to 158 of…

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 205
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Matthew Milata against his conviction for murder. The dispute concerned the admissibility of certain evidence during his trial in the Supreme Court of Western Australia.

The central legal issue before the High Court was whether the evidence of a police interview conducted with Mr Milata, which was admitted at his trial, was obtained in contravention of the *Criminal Investigation Act 2006* (WA) and, if so, whether it should have been excluded under s 138 of the *Evidence Act 1995* (WA). Specifically, the Court had to determine if the interview was conducted in accordance with the requirements of the *Criminal Investigation Act 2006* (WA) regarding the recording of interviews and the provision of information to the suspect.

The High Court, comprising French CJ and Gageler J, found that the police interview with Mr Milata was conducted in contravention of the *Criminal Investigation Act 2006* (WA). The Court reasoned that the Act imposed mandatory requirements for the recording of interviews and the informing of suspects of their rights, which had not been met. Applying the principles of s 138 of the *Evidence Act 1995* (WA), which governs the exclusion of improperly or illegally obtained evidence, the Court concluded that the admission of the interview evidence had occasioned a substantial miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders