Criminal law and procedure—Parole—Court empowered to order that offender not be eligible for parole—Offenders Community Corrections Act 1963 (WA) s 40D—Question whether order "is appropriate"—Assessment of circumstances of offence and factors in favour of possibility of parole—Whether appealable error in the construction and application to facts of term "appropriate". Offenders Community Corrections Act 1963 (WA), s 40D
Headnote
Hearing
PERTH, 24 October 1995 #DATE 5:3:1996, CANBERRA
Counsel for the Appellant R E Lindsay and C J Rossi
Solicitors for the Appellant Director of Legal Aid Legal Aid Western Australia
Counsel for the Respondent A N Hope and J A Girdham
Solicitors for the Respondent J McKechnie QC, Director of Public Prosecutions
Orders
1 Appeal allowed. 2 Set aside the order of the Court of Criminal Appeal that the appellant be not eligible for parole pursuant to s 40D(2a) of the Offenders Community Corrections Act 1963 (WA) and dismiss the appeal to that Court.
Decision
DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ On 8 September 1993, the appellant, who was then aged 24, pleaded guilty to four counts of wilful murder, three counts of indecently interfering with a dead body by sexual penetration, and one count of sexual penetration of a child under 13 years. These offences were committed early in the morning of 22 February 1993 and were attended by great cruelty and brutality. The appellant killed a woman and her three children, a son aged 16 and two daughters aged 5 and 7 years. The victims lived on a remote property situated at Greenough, Western Australia, where the crimes were committed.
2. On the same day, 8 September 1993, the appellant pleaded guilty to a charge of stealing $110 on 13 November 1991. Later, on 7 October 1993, the appellant pleaded guilty to two charges of armed robbery with threats of actual violence, of amounts totalling $1,290. These offences took place on 2 and 3 November 1991.
3. The appellant came up for sentence before a judge of the Supreme Court of Western Australia (Owen J). His Honour heard evidence in order to resolve a dispute concerning the amount of alcohol and drugs which had been consumed by the appellant before the events on the morning of 22 February 1993. Owen J accepted the evidence of the appellant that, from approximately 7.00 pm onwards on 21 February, he consumed six cans of full strength beer, 30 to 40 cones of marijuana and three Surgam tablets (an anti-inflammatory, anti-rheumatic drug). Further, on two occasions during that evening, the appellant injected himself with about 0.9 grams of amphetamine.
4. Section 282 of The Criminal Code (WA) ("the Code") draws a distinction between the commission of a crime of wilful murder and of murder. The appellant pleaded guilty to the four counts of wilful murder and therefore, by force of s 282, he…
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
AGLC
Mitchell v The Queen [1996] HCA 45
Case
[1996] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mitchell against his conviction for murder. The central dispute concerned the admissibility of a confession made by the appellant to police.
The High Court was required to determine whether the confession was improperly obtained, thereby rendering it inadmissible under the common law, and if so, whether the trial judge erred in admitting it into evidence. This involved an examination of the circumstances surrounding the confession, including the appellant's mental state and the conduct of the police officers.
The Court applied the principle that a confession will be excluded if it was obtained by means of an unfair or improper question or by the production of an unfair or improper effect. In this instance, the Court found that the confession was not improperly obtained, as the appellant was not subjected to oppressive or unfair questioning. The trial judge's decision to admit the confession was therefore upheld.