Strbak v The Queen

[2020] HCA 10

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, NETTLE AND EDELMAN JJ

HEIDI STRBAK  APPELLANT

AND

THE QUEEN  RESPONDENT

Strbak v The Queen

[2020] HCA 10

Date of Hearing: 6 December 2019
Date of Judgment: 18 March 2020

B55/2019

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland dated 12 March 2019 refusing leave to appeal and in lieu thereof order that:

(a)leave to appeal be granted;

(b)the appeal be allowed;

(c)the sentence imposed by the Supreme Court of Queensland on 18 December 2017 be quashed; and

(d)the proceeding be remitted to the Trial Division of the Supreme Court of Queensland for the appellant to be sentenced according to law.

On appeal from the Supreme Court of Queensland

Representation

S C Holt QC with B P Dighton for the appellant (instructed by Bamberry Lawyers)

M R Byrne QC with P J McCarthy for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Strbak v The Queen

Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant.

Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact‑finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof".

Evidence Act 1977 (Qld), s 132C.

1. KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ.   Under the common law of Australia, on the trial of a criminal allegation (save in rare and exceptional circumstances), no adverse inference should be drawn by the jury (or the judge in a trial without a jury) from the fact that the accused did not give evidence[1]. The question raised by the appeal is whether the same stricture applies to the resolution of a dispute as to the facts constituting the offence in sentencing. If it does, a further question is whether that position is modified by s 132C of the Evidence Act 1977 (Qld) ("the Act"), which relevantly provides that, if an allegation of fact is not admitted or is challenged, the sentencing judge may act on the allegation if the judge is satisfied on the balance of probabilities that the allegation is true.

   [1]RPS…