The State of South Australia v Flavel - [2009] HCATrans 80

[2009] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A1 of 2009

B e t w e e n -
THE STATE OF SOUTH AUSTRALIA
Applicant
and
JOANNE MAREE FLAVEL
Respondent
Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 1 MAY 2009, AT 1.02 PM

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR M.R. PENHALE for the applicant. (instructed by Crown Solicitors Office (SA))

MR R.A. CAMERON: If the Court pleases, I appear with my learned friend, MR J.B. TEAGUE, for the respondent. (instructed by Jeffrey D Vigar)

HAYNE J: Yes, Mr Solicitor.

MR HINTON: The primary complaint made in this matter is that the Full Court, and in particular Justice Vanstone, erred, with respect, in its application of the Shirt calculus. There are two subsidiary complaints set out in our written submissions - one with respect to causation, the second with respect to the interference with factual findings of the judge at first instance. I am content to rely upon our written submissions in relation to the two subsidiary complaints. On my feet I intend to deal only with the primary submission, namely the failure to correctly apply the Shirt calculus. At the outset in our written submissions, we have made clear that, with respect, or conceded that there is no question of law of general importance arising in this case, nor is there a requirement to resolve differences between dealings with the Shirt calculus. We say, in effect, that the Full Court got it wrong and that the administration of justice - the catch‑all in section 35A of the Judiciary Act - justifies this Court taking the matter so as to overturn that error.

HAYNE J: Can I just then understand the essence of the point? We have here pupils at a school engaged in windsurfing. It is found in the courts below, is it not, that it was negligent to set beginners of this age in a race in the water where they were? Is that it?

MR HINTON: In a nutshell, yes.

HAYNE J: Why was it not open to find that that is negligent?

MR HINTON: The error, in our submission, arises in the course of identifying the risk. What we had, in effect, was two windsurfing lessons. There was no suggestion that the reasonableness of the precautions taken by the defendant to alleviate the risk of spinal injury in the first was inadequate. So it was a matter then ‑ ‑ ‑

KIEFEL J: Was it not critical to the Full Court’s decision that the expert evidence of Mr Todd about risk was accepted? He was a person experienced in windsurfing and in the instruction of windsurfing and he identified the risks which the court applied.

MR HINTON: It…

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 State of South Australia v Flavel

Details

AGLC: The State of South Australia v Flavel [2009] HCATrans 80
Case: [2009] HCATrans 80
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of the State of South Australia against a decision of the Full Court of the Supreme Court of South Australia, which had allowed an appeal by the respondent, Mr. Flavel. The dispute concerned the interpretation and application of the *Criminal Law (Sentencing) Act 1988* (SA) in relation to the sentencing of Mr. Flavel for a serious criminal offence.

The central legal issue before the High Court was whether the Full Court of the Supreme Court had erred in its determination that the sentencing judge had failed to give adequate weight to the mitigating factors presented on behalf of Mr. Flavel, specifically his remorse and his willingness to plead guilty at the earliest opportunity. This involved an examination of the principles governing the exercise of sentencing discretion by a trial judge and the scope of appellate review of such decisions.

The High Court, comprising Hayne and Kiefel JJ, reasoned that the sentencing judge had properly considered all relevant factors, including the mitigating circumstances. Their Honours emphasised that appellate courts should be slow to interfere with a sentencing judge's exercise of discretion unless there was a demonstrable error in principle or the sentence was demonstrably unjust. They found that the sentencing judge had not made such an error and had adequately balanced the aggravating and mitigating factors in reaching the sentence imposed.

Accordingly, the High Court allowed the appeal by the State of South Australia, setting aside the order of the Full Court of the Supreme Court of South Australia and restoring the original sentence imposed by the sentencing judge.

Orders