Muldrock v The Queen [2011] HCATrans 55 - [2011] HCATrans 55

[2011] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S231 of 2010

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

FRENCH CJ
GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2011, AT 11.19 AM

MR M. THANGARAJ, SC: Your Honours, I appear with MR D.P. BARROW. (instructed by Catherine Hunter Solicitor)

MR C.K. MAXWELL, QC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honours, we formally need an extension of time in relation to this matter.

FRENCH CJ: Is that opposed?

MR MAXWELL: No, your Honour.

FRENCH CJ: You have your extension.

MR THANGARAJ: Thank you, your Honour. Your Honour, special leave is sought on two bases: one, as questions of general importance and alternatively, as a matter of interest of justice in the particular case but not limited to this individual himself but the effect that the community would suffer from the current sentence imposed on him as an individual. Could I start with the standard non-parole period point? The Chief Judge was critical of the asserted failure of the trial judge ‑ ‑ ‑

GUMMOW J: Does any point emerge that you rely on for construction of these provisions of the Sentencing Procedure Act?

MR THANGARAJ: I beg your pardon, your Honour?

GUMMOW J: Is there any point of construction of the legislation ‑ ‑ ‑

MR THANGARAJ: Yes, your Honour. That is the critical issue with respect to the standard non‑parole period. The Court of Criminal Appeal in Way and in other cases has decided that even for matters that do not fall within mid‑range seriousness, that the standard non‑parole period ought still be regarded as a benchmark or a guidepost. In our submission, that is inconsistent with the legislation.

The fundamental starting point clearly is the legislation and what Parliament has decided is that once offending has got to a certain level, that is mid‑range offending, then the standard non‑parole period would apply. This is not a position where the legislature has increased the maximum penalty. If Parliament had decided to increase the maximum penalty for these offences then, obviously, low‑range offences would be susceptible to an increase in penalty but what has happened is that the construction of section 54 has been, with respect, incorrect.

GUMMOW J: Is that 54A?

MR THANGARAJ: Yes, and B, because it is clear that, with respect, Parliament has limited standard non‑parole period to mid‑range offences. In this case, of course, both the first instance judge and the Court of Criminal Appeal found correctly that this was below mid range. So, if our statutory argument is correct, it would have an impact on the actual sentence that was imposed on the applicant. So the special leave question could be addressed…

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: [2011] HCATrans 55
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal in the matter of *Muldrock v The Queen*. The applicant, Muldrock, sought leave to appeal against a decision of the Supreme Court of Queensland (Court of Appeal) which had dismissed his appeal against his conviction for a number of offences, including unlawful use of a motor vehicle and dangerous operation of a motor vehicle.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the element of "dishonesty" in relation to the offence of unlawful use of a motor vehicle, as defined by section 408A of the *Criminal Code* (Qld). Muldrock contended that the jury should have been instructed that dishonesty required a finding that the accused acted contrary to the accepted standards of honest persons.

The High Court granted special leave to appeal. French CJ, Gummow and Kiefel JJ indicated that the appeal would be allowed and the conviction for unlawful use of a motor vehicle quashed. Their Honours reasoned that the trial judge's direction on dishonesty was insufficient, as it did not adequately convey the objective standard required by the offence. The Court noted that the jury had not been properly instructed that they must consider whether the applicant's belief that he had a right to use the vehicle was one that an honest person would have held in the circumstances. The Court found that the error in direction was not insignificant and could not be overcome by other aspects of the summing up.

The High Court ordered that the appeal be allowed, the conviction for unlawful use of a motor vehicle be quashed, and that Muldrock be discharged from that conviction. The Court remitted the matter to the Supreme Court of Queensland for a determination on whether a retrial should be ordered for the dangerous operation of a motor vehicle offence.

Orders