The Queen v Olbrich - [1998] HCATrans 426

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S96 of 1998

B e t w e e n -
THE QUEEN
Applicant
and
REINHOLD ERHARD OLBRICH

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 10.50 AM

MR B.R. MARTIN, QC: May it please the Court, I appear for my learned friend, MS M.M. CINQUE, for the applicant. (instructed by the Commonwealth Director of Public Prosecutions)

MR T.L. BUDDIN, SC: May it please the Court, I appear together with my learned friend, MS R.W. BURGESS, for the respondent. (instructed by Mr T. Murphy, Legal Aid Commission)

GAUDRON J: Mr Martin.

MR MARTIN: Thank you, your Honour. Your Honours, there are four bases upon which we say there is a special point, an important point, that deserves special leave. The first is that the Court of Criminal Appeal has created, in our submission, a new and erroneous principle of sentencing to be superimposed upon the existing principles.

GAUDRON J: What do you say the relevant existing principle is?

MR MARTIN: The existing principles have been that when it comes to a circumstance of aggravation, the fact relied upon must be proved beyond reasonable doubt, inevitably, the burden resting upon the Crown. When it comes to a circumstance of mitigation, that fact must be proved on the balance of probabilities, the practicalities being that it rests on the offender to prove those principles. What has happened in this case is that with respect to importations, and only importations, but with a potential to apply it in a wider context, the Court of Criminal Appeal has imposed upon the Crown a general burden beyond reasonable doubt to prove the involvement of the importer in the course of events prior to, or subsequent to, the actual act of importation.

GAUDRON J: It is really to prove the level of involvement, is it not?

MR MARTIN: Well, the level or the degree of involvement, that is correct, your Honour.

HAYNE J: What does that mean?

MR MARTIN: It means this, sir: that in the absence of proof the offender is entitled to be sentenced on the most favourable basis ‑ ‑ ‑

HAYNE J: I understand that, but what does it mean to say that the Crown must prove the level of his involvement?

MR MARTIN: Well, your Honour, I guess it means this: that the plea simply establishes that the person imported, that is brought the drug into the country.

HAYNE J: It is an admission of all of the elements?

MR MARTIN: It is.

HAYNE J: Yes?

MR MARTIN: Beyond that the court knows nothing. It is said, in this type of case, the Crown must lead evidence to prove that the person, perhaps, assisted with the obtaining of the drug, assisted with the travel arrangements, or, at the other end, was a financier, that…

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 The Queen v Olbrich

Details

AGLC: The Queen v Olbrich [1998] HCATrans 426
Case: [1998] HCATrans 426
Decision Date

CaseChat Overview and Summary

The Queen prosecuted Mr Olbrich, who was charged with two counts of obtaining financial advantage by deception contrary to s 170 of the *Crimes Act 1958* (Vic). The dispute concerned whether Mr Olbrich had acted dishonestly in obtaining financial advantages from the Commonwealth Bank of Australia. The case was heard in the High Court of Australia on appeal from the Supreme Court of Victoria.

The central legal issue before the High Court was the proper interpretation of the word "dishonestly" in the context of the offence of obtaining financial advantage by deception. Specifically, the court had to determine whether the jury had been correctly directed on the meaning of dishonesty, and whether the trial judge’s directions had adequately conveyed the relevant legal standard to the jury.

Gaudron and Hayne JJ, in a joint judgment, held that the jury had been misdirected. They explained that the test for dishonesty in this context was an objective one, requiring the jury to consider whether the accused's conduct was dishonest according to the standards of ordinary people. This objective standard was to be applied to the facts as the jury found them to be. Their Honours referred to the established common law principles concerning dishonesty, which require an assessment of the accused's knowledge and intention, but ultimately focus on whether their actions would be regarded as dishonest by ordinary members of the community. The jury’s verdict was quashed, and a new trial was ordered.

Orders