Muldrock v The Queen - [2011] HCATrans 150

[2011] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S121 of 2011

B e t w e e n -
DEREK MULDROCK
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 JUNE 2011, AT 10.01 AM

(Continued from 8/6/11)

FRENCH CJ: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honours, to answer Justice Gummow’s question, there are no strict liability offences in the table. Can I then go back to the issue of objective seriousness and ask your Honours to go to Way. There is an extract from Way that talks about this issue, starting at paragraph 84. If I could ask your Honours to read paragraphs 84, 85 and 86.

HAYNE J: That seems to be a passage that construes the separate elements of what might, at first sight, seem to be a composite phrase.

MR THANGARAJ: I am sorry, your Honour?

HAYNE J: It seems to say, “Well, some things are objective; some things affect seriousness”, rather than try to struggle with what the composite phrase “objective seriousness” means.

MR THANGARAJ: Yes, and if I could take up an example. Firstly, the matter of motivation is a matter that your Honour Justice Kiefel referred to yesterday as being a matter that would go to objective seriousness, and that is what Way has ‑ ‑ ‑

KIEFEL J: If it was part of an offence.

MR THANGARAJ: Yes.

KIEFEL J: What I was trying to distinguish yesterday were matters which could be factors relating to an offence which could be used in comparison with other offences, and matters which were purely personal to the offender, which are considered separately. But the approach in paragraphs 84 to 86 of Way appears to assume that the assessment is objectively to affect the seriousness of the offence, which is sort of an internal examination of the offence committed by the person. It seems to deny the possibility that objective seriousness may mean the seriousness of the offence objectively ascertained by comparison with other committed offences.

MR THANGARAJ: Yes, that is right.

KIEFEL J: That is where I have some difficulty, I have to say.

MR THANGARAJ: Could I add a further complication to take up an example that your Honour Justice Hayne raised yesterday of when there are aggravating factors. An example of a standard non‑parole period offence is section 112(2), which is aggravated break and enter, which also has a series of different potential forms of aggravation. They are being armed, or being in company, or corporal violence, or inflicting actual bodily harm, or denying someone their liberty, or knowing that somebody is at home.

Two people commit a robbery by going to a house when they know that it is unoccupied and steal something, or break and enter. That is a form of aggravation, subject to that standard non-parole period.…

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 Muldrock v The Queen

Details

AGLC: Muldrock v The Queen [2011] HCATrans 150
Case: [2011] HCATrans 150
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Muldrock against his conviction for a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The dispute arose from a home invasion where the appellant and an accomplice entered the victim's home, assaulted him, and stole his property. The appellant was convicted on all counts following a trial in the District Court of New South Wales, and his appeal to the Court of Criminal Appeal of New South Wales was dismissed.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the appellant's prior convictions. Specifically, the court had to determine if this evidence was improperly used to establish the appellant's propensity to commit the offences charged, thereby contravening the rule against character evidence, or if it was admissible under a recognised exception, such as demonstrating a common purpose or system. The court also considered whether the jury directions adequately addressed the limited purpose for which the evidence of prior convictions could be considered.

The High Court held that the admission of the evidence of prior convictions was an error. The majority reasoned that the similarities between the prior offences and the charged offences were not so striking as to demonstrate a common design or system that could not be explained by coincidence. Consequently, the evidence was improperly admitted as propensity evidence, which carried a significant risk of unfair prejudice to the appellant. The jury directions, while attempting to limit the use of the evidence, were found to be insufficient to overcome this prejudice.

The High Court allowed the appeal, quashed the convictions, and remitted the matter to the Court of Criminal Appeal of New South Wales for a determination of whether a new trial should be ordered.

Orders