Michael Adam Mustac v Queen - [2013] HCATrans 326

[2013] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A13 of 2013

B e t w e e n -
MICHAEL ADAM MUSTAC
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 DECEMBER 2013, AT 2.34 PM

MRS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MS S.V. DAVID, for the applicant. (instructed by Noblet & Co)

MR I.D. PRESS: May it please the Court, I appear with MR K.G. LESSES for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL J: Yes, Mrs Shaw.

MRS SHAW: The applicant submits, your Honours, that there are two questions warranting a grant of special leave. The first question concerns the construction of section 285BA of the Criminal Law Consolidation Act 1935 (SA). The second question concerns the failure of the Court of Appeal to consider as a separate and distinct question whether the Director ought to be granted permission to appeal, having regard to the limiting purpose of Crown appeals against sentence and the residual discretion to dismiss the appeal in any event.

It is our submission that in relation to the second question the court below did not consider as a separate and distinct question whether the Director ought to be granted permission to appeal, pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act (SA), having regard to the limiting purposes for which the Director is entitled to bring such an appeal against sentence.

There was no consideration by the court as of the need to be satisfied that one of the purposes of Crown appeals would be advanced by a grant of permission to appeal. There was no consideration by the court of whether it was an appropriate case to dismiss the appeal in any event, having regard to the residual discretion. In the court below at application book page 49 in paragraph 40 the only indication of the reasoning of the court on this topic in respect of which the respondent submits there should be an implication of the consideration is in paragraph 40 in the last sentence:

The inadequacy and the errors which attended the respondent’s sentence demand a grant of permission.

The applicant submits that that does not support, either by implication and certainly not expressly, that the court has turned its mind, as it must, to what are conditions precedent for the exercise of its jurisdiction. It is our submission that the failure of the court to do so is in fact supported by the way in which the court expresses itself in its earlier consideration of the other errors complained about by the respondent at the appeal.

For example, at application book 43, paragraph 25, when dealing with what the court concluded on an alternative construction of what occurred was an error…

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: [2013] HCATrans 326
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Michael Adam Mustac against a conviction for an offence. The appeal was heard by Kiefel and Keane JJ of the High Court of Australia.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Specifically, the court had to consider whether there was sufficient evidence presented at trial to raise an issue of provocation, thereby necessitating a direction to the jury.

Their Honours considered the evidence adduced at trial in light of the principles governing the defence of provocation. They noted that for the defence to be available, there must be evidence that the act of the accused was a response to a loss of self-control caused by something done or said by the deceased, which was of such a nature as to render it impossible for the accused to restrain himself. Kiefel and Keane JJ concluded that the evidence presented did not meet this threshold, and therefore, no misdirection occurred.

The appeal was dismissed.

Orders