Smith v The Queen - [2004] HCATrans 479

[2004] HCATrans 479

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A34 of 2004

B e t w e e n -
MARK RAYMOND SMITH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 12.28 PM

GUMMOW J: This application has been dealt with us by considering the written submissions. What I am about to say represents the views of Justice Heydon and myself.

When aged 24, the applicant, who prepared his own application for special leave and written submissions, committed a murder in company with a man named Turner. This was in 1992. They were convicted of that murder in 1994 and sentenced in 1995. Each received a mandatory life sentence. The non‑parole period of the applicant was 25 years, and for Turner, 15 years.

The applicant’s first complaint is that the courts below ignored the changes in the law effected by the enactment after the crime but before sentencing, of the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) (“the Act”). He claims that as a result, his non‑parole period is 60 to 70 per cent higher than the average non‑parole period for convicted murderers in the years 1984 to 1993, namely, 13.5 years.

Three points may be made about this complaint. First, the trial judge said that because of the Act, he substantially reduced the non‑parole period he would otherwise have arrived at. Secondly, counsel for the applicant in the Court of Criminal Appeal, Mr B.R. Martin, QC, argued that the 1994 Act, in abolishing remissions and ending the automatic grant of parole at the expiration of non‑parole periods, required the court to fix a shorter non‑parole period in accordance with the sentencing standards employed before the Prisons Act Amendment Act 1983 (SA).

The Court of Criminal Appeal rejected that argument. It said that the task of fixing a non‑parole period involved fixing the part of the head sentence which had to be served in prison, leaving out of account what the Parole Board might do after that period ended. Thirdly, the average of non‑parole periods will include those devised for the worst murders and those devised for other murders. The sentencing judge in this case, Justice Perry, rightly said that this murder was:

a callous and premeditated execution [which] could never be excused, and falls into the most serious category of murder.

It is not to be compared with other murders in the middle or lower part of the range.

The applicant’s second complaint is that the sentencing judge penalised him for his youth, contrary to what was later said in Inge v The Queen (1999) 199 CLR 295, by setting a non‑parole period 68 per cent higher than those of Turner. In fact, there is nothing to indicate that the judge did this. The judge explained the differences to…

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 Smith v The Queen

Details

AGLC: Smith v The Queen [2004] HCATrans 479
Case: [2004] HCATrans 479
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Smith against his conviction for a criminal offence. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The primary legal issue before the Court was whether the evidence in question had been obtained in contravention of the applicant's legal rights, and if so, whether it should have been excluded from the trial proceedings. This involved an examination of the relevant statutory provisions governing police powers and the common law principles relating to the admission of improperly obtained evidence.

The Court's reasoning focused on the interpretation of the governing legislation and the application of established legal tests for the exclusion of evidence. It considered the extent to which the actions of the police had infringed upon the rights of the applicant and the discretionary power of the trial judge to admit or exclude such evidence, weighing the probative value of the evidence against the impropriety of its acquisition. The Court ultimately determined the appeal.

Orders