Strbak v The Queen

Case [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.

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Strbak v The Queen [2020] HCA 10
Case
[2020] HCA 10
Decision Date

CaseChat Overview and Summary

In *Strbak v The Queen*, the High Court of Australia considered an appeal concerning the sentencing of the appellant, who had pleaded guilty to manslaughter. The dispute arose at the sentencing hearing where the factual basis of the offence was contested, and the appellant chose not to give evidence.

The central legal issues before the High Court were whether the sentencing judge had erred in applying the principles established in *R v Miller* [2004] 1 Qd R 548, specifically in drawing adverse inferences from the appellant's silence at the sentencing hearing. The Court was required to determine if *R v Miller* was wrongly decided and whether a sentencing judge is permitted to more readily draw such inferences against an appellant who fails to give evidence when facts are contested.

The High Court reasoned that the sentencing judge had impermissibly drawn adverse inferences from the appellant's failure to give evidence, thereby departing from the established principles of criminal justice. The Court affirmed that while a sentencing hearing is not an accusatorial proceeding in the same way as a trial, the presumption of innocence and the right to silence remain relevant. The Court held that the principles in *R v Miller* were wrongly decided to the extent that they permitted the drawing of adverse inferences from silence in the absence of contradictory evidence, and that such inferences should only be drawn in rare and exceptional circumstances, and not as a matter of course. The Court concluded that the sentencing judge had applied an incorrect standard of proof in making factual findings.

Consequently, the High Court allowed the appeal, quashed the sentence imposed by the Supreme Court of Queensland, and remitted the matter to the Trial Division for resentencing according to law.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

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