Strbak v The Queen - [2019] HCATrans 242

[2019] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B55 of 2019

B e t w e e n -
HEIDI STRBAK
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 DECEMBER 2019, AT 9.45 AM

MR S.C. HOLT, QC: May it please the Court, I appear with my learned friend, MR B.P. DIGHTON, for the appellant. (instructed by Bamberry Lawyers)

MR M.R. BYRNE, QC: If it please the Court, I appear with my learned friend, MR P.J. McCARTHY, for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Holt.

MR HOLT: May it please the Court. The exercise of finding of facts on sentencing in any case can involve a wide range of approaches. The vast majority of facts which are determined on sentence are determined relatively informally or in different kinds of ways. This case deals with a particular category of fact finding on sentencing. That is where the prosecution, the Crown, alleges the existence of a factual circumstance which is adverse to the interests of a defendant, that is, which is likely to have an impact or will have an impact on the sentence, will determine the conduct that person was involved in and which is not otherwise admitted by the defendant on sentencing.

The significance of those kinds of facts is illustrated, probably in some ways as well as it can be, by the facts of this very matter. We were dealing here with the offence of manslaughter, to which the appellant pleaded guilty, manslaughter well known of course for having within it one of the broadest ranges of criminal culpability of any offence, but the plea was entered on the basis that the appellant had committed manslaughter by criminal negligence by the failure to provide medical attention in circumstances where she was plainly obligated to do so to her young son.

The Crown sought to have her sentenced on the basis that she had either punched, kneed or kicked her child hard enough in the abdomen such as to transect his duodenum and to rupture his mesenteric artery. That was a very significant, a very serious and a very profound allegation for the Crown to make against an individual and it was at the point of sentencing before his Honour Justice Applegarth unproved and not admitted by the plea that had been entered.

So, the question here that arises squarely, in our respectful submission, is whether the sentencing judge was entitled to use her silence at sentencing, that is, her decision to exercise her right to not give sworn evidence on the contested hearing to help the Crown to prove its case, to permit it to more readily draw inferences and to more readily accept the evidence that the prosecution itself sought to rely on to prove that matter.

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 Strbak v The Queen

Details

AGLC: Strbak v The Queen [2019] HCATrans 242
Case: [2019] HCATrans 242
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Strbak against his conviction for murder. The central dispute concerned the admissibility of certain evidence during his trial, specifically evidence relating to his mental state at the time of the offence.

The High Court was required to determine whether the trial judge erred in admitting evidence of Mr Strbak's prior mental health issues and treatment, and whether this evidence was relevant to the defence of provocation. The court also considered whether the jury directions regarding provocation were adequate, particularly in light of the admitted evidence.

The High Court reasoned that the evidence of Mr Strbak's mental health was relevant to the question of whether he possessed the requisite state of mind for provocation, namely whether his self-control was lost due to a sudden or temporary loss of reason. The court held that the jury directions were sufficient, as they adequately explained the elements of provocation and how the evidence could be considered in relation to those elements. The appeal was dismissed.

Orders