Strbak v The Queen

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.