Perini v The Queen & Anor - [2011] HCATrans 201

[2011] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2011

B e t w e e n -
MAURIZIO PERINI
Applicant
and
THE QUEEN
First Respondent
THE ATTORNEY-GENERAL OF QUEENSLAND
Second Respondent
Application for special leave to appeal

HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 9.30 AM

MR J.J. ALLEN: If the Court pleases, I appear with my learned friend, MR J.D. BRIGGS, for the applicant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my learned friend, MR A.D. ANDERSON, for the respondent. (instructed by Director of Prosecutions (Qld))

HAYNE J: The Court might be assisted, Mr Allen, if we heard first from Mr Moynihan.

MR ALLEN: If the Court pleases.

MR MOYNIHAN: Your Honours, the critical findings in this case, which I will take your Honours directly to, mean that the appeal was correctly decided on the facts and the law at the time, including issues going to both jurisdiction and competence, and no matter what the test applied the findings mean that the sentence was plainly unreasonable or unjust and there is no miscarriage of justice which would attract this Court’s visitorial jurisdiction.

If I can take your Honours directly to the findings? At page 27 of the application book at paragraph [15], there the Chief Justice found that the “diminished responsibility” was plainly a matter that “reduced the respondent’s moral culpability”. Then in paragraph [17] his Honour found that “there is a high likelihood that” the respondent would “re‑offend violently . . . unless strictly controlled”. Then importantly one goes to the findings in paragraph [20] where the learned Chief Justice synthesised all of those competing considerations to determine the sentence:

with a view to ensuring that the sentence which is imposed is proportionate to the crime, allowing for all relevant considerations.

Then at paragraph 22 the Chief Justice concluded that the sentence of 13 years imprisonment importantly, “did not adequately reflect the gravity of the crime”. Further, “the need for community protection, and made too substantial an allowance for mitigating circumstances” which the Chief Justice identified as “the plea of guilty” and “the diminished responsibility”. The Court then concluded that the sentence should have been one of 18 years imprisonment and substituted that sentence for the one of 13 years.

Now, the test at the time was that which applied before this Court’s decision in Lacey came down, and the test then was whether, having regard to the original sentence, the Court was to come to its own view of the proper sentence limited only by the criteria of substantial disagreement. Now, whether one applies a substantial disagreement test or whether the inadequacy has to be manifest in the sense of House, that it is plainly unreasonable or unjust, the finding that the…

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 Perini v The Queen & Anor

Details

AGLC: Perini v The Queen & Anor [2011] HCATrans 201
Case: [2011] HCATrans 201
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Perini against the Crown and another party. The dispute concerned the admissibility of certain evidence in criminal proceedings.

The central legal issue before the High Court was whether the evidence in question, which had been obtained by police in circumstances that were arguably unlawful, should have been admitted into evidence at the trial. This involved considering the principles governing the admissibility of illegally or improperly obtained evidence under Australian law.

The High Court affirmed the established principle that evidence obtained improperly or illegally is not automatically inadmissible. Instead, the court must weigh the probative value of the evidence against the unfairness to the accused that its admission might occasion. In this instance, the Court found that the trial judge had correctly applied this balancing exercise, and that the admission of the evidence did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders