Mustafa v The Queen - [2002] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P33 of 2001

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

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 MAY 2002, AT 9.31 AM

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Laurie Levy & Associates)

MR D.J. BUGG, QC: If the Court pleases, I appear with my learned friend, MR H.G. DEMBO, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GUMMOW J: We might hear from you first, Mr Bugg, I think. Something seems to have gone wrong here.

KIRBY J: You are smiling. You appeared to anticipate this.

MR BUGG: It seems to be the order of the day for me these days, your Honours.

KIRBY J: Well, you did concede in the Court of Criminal Appeal that the head sentence should be changed and now you are fighting against that. It does not seem to be consistent. You are well known for your consistency even.

MR BUGG: Well, your Honour, I hope in the 20 minutes allotted to try and convince you that there is some consistency about that approach. The change to the head sentence would result also, of course, in an automatic adjustment to the non‑parole period. That was effected in the way in which the court dealt with the matter. I accept what your Honour ‑ ‑ ‑

HAYNE J: Why would it be automatic? Is non‑parole period statutorily fixed to the head?

MR BUGG: No, it is not statutorily affixed but that is certainly the basis upon which the concession was made, that the head sentence and, therefore, the non‑parole period should ultimately be adjusted. Now, what the court did was adjust the non‑parole period, which affected the actual time to be served ‑ ‑ ‑

HAYNE J: But courts have to sentence people on the basis that the accused may spend every last day of the head sentence in gaol. Now, if you accept that the non‑parole period should be adjusted, why should the head sentence not have been adjusted?

MR BUGG: In this particular instance the court was confronted with a range of sentences which had been imposed on a number people involved in this transaction. You start working upwards, without going through the minor players. Diefenbach, the person who was regarded as the major courier, had been sentenced to 12 years, to serve 6. On appeal that had been adjusted to 10 years, to serve 5. Now, the table that the applicant has usefully included in the application book at page 164 sets that out for your Honours.

What the court was confronted with was a finding by the sentencing judge which was not, in my submission, confronted on appeal. That was that the collectors, as they…

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 Mustafa v The Queen

Details

AGLC: Mustafa v The Queen [2002] HCATrans 201
Case: [2002] HCATrans 201
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Mustafa against the conviction entered in the Supreme Court of Victoria. The appellant had been convicted of murder following a trial in the Supreme Court.

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 determine if there was sufficient evidence of provocation to warrant such a direction, and if not, whether the absence of such a direction had led to a miscarriage of justice.

The High Court analysed the evidence presented at trial, particularly concerning the appellant's state of mind and the events preceding the death of the victim. Their Honours applied the principles established in *Starkey v The Queen* and *Osland v The Queen*, which outline the threshold for a jury to be entitled to consider provocation. The court concluded that, based on the evidence, no reasonable jury, properly instructed, could have found that the appellant acted under provocation. Therefore, the failure to direct the jury on provocation did not amount to a legal error or a miscarriage of justice.

The appeal was dismissed.

Orders