Will v The Queen - [2021] HCATrans 219

[2021] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C8 of 2021

B e t w e e n -
DAVID ALLEN WILL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 DECEMBER 2021, AT 1.26 PM

KEANE J: I will announce the appearances for the parties.

MR K.D. GINGES appears with MR J.D. DONNELLY for the applicant. (instructed by Hugo Law Group)

MS K. WESTON-SCHEUBER appears with MS K.L McCANN for the respondent. (instructed by ACT Office of the Director of Public Prosecutions)

KEANE J: Yes, Mr Ginges.

MR GINGES: May it please your Honours. This appeal concerns the proper construction of section 36 of the Crimes (Sentencing) Act 2005 (ACT), in particular whether concepts of voluntariness or willingness are necessary preconditions to a sentencing court exercising its discretion to impose a lesser sentence where the offender for sentence has previously assisted in a proceeding relating to the offence, or whether voluntariness and willingness are merely factors, among others, to be considered in determining the nature or extent of any sentencing discount to be applied.

This appeal warrants a grant of special leave for the following four reasons. First, the resolution of this issue is of public importance and will have general application to the sentencing of offenders in the Local, District and Supreme Courts of New South Wales and the Magistrates and Supreme Courts in the ACT.

Secondly, it will resolve differences of opinion expressed by different judges sitting in the ACT Court of Appeal and in this matter where the Chief Justice and Justice Charlesworth found that willingness and voluntariness was essential and thus a precondition to the exercise of the discretion, but Justice Burns, who heard the leave application, and Justice Loukas‑Karlsson, who was in the minority, found otherwise.

Thirdly, because the New South Wales and ACT sentencing statutory provisions concerning assistance are almost identical, the proper construction of section 36 will have important ramifications on the construction and application of section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that is, the resolution of this case will be cross‑jurisdictional and not just limited to the ACT.

Fourthly, the five‑judge decision in CC v R; R v CC [2021] NSWCCA 71 which was coincidentally handed down on the same date as the decision below, being 2 June 2021, found that the utilitarian value of a reluctant witness whose assistance was cross‑examined out of him in a murder trial justified a discount on sentence, that is, this appeal will resolve a difference of opinion between the ACT Court of Appeal and the New South Wales Court of Criminal Appeal on the state of the law and construction of analogous sentencing provisions.

So far as we could discern, the High Court has not previously decided this issue. If this Court does not grant special leave,…

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 Will v The Queen

Details

AGLC: Will v The Queen [2021] HCATrans 219
Case: [2021] HCATrans 219
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr Will, sought to challenge a decision of the ACT Court of Appeal concerning the interpretation of sentencing provisions. The core of the dispute revolved around whether "voluntariness" or "willingness" were essential preconditions for a court to exercise its discretion to impose a lesser sentence when an offender has assisted in a proceeding related to the offence, or whether these were merely factors to be considered in determining the extent of any discount.

The legal issues before the High Court were primarily concerned with the proper construction of section 36 of the *Crimes (Sentencing) Act 2005* (ACT). Specifically, the court was asked to determine whether the assistance provided by an offender to law enforcement authorities, in the context of giving evidence in a trial, must be voluntary and willing to qualify for a sentencing discount, or if such assistance, even if compelled, could still attract a reduction in sentence. This involved considering whether the act of giving evidence, even under oath, constituted "assistance" to law enforcement authorities as contemplated by the legislation, or if it was merely fulfilling a civic duty in the administration of justice.

The applicant argued that voluntariness and willingness were not essential preconditions, but rather factors to be considered. This position was supported by a minority in the ACT Court of Appeal and a recent decision of the New South Wales Court of Criminal Appeal. The applicant contended that the majority in the ACT Court of Appeal had erred by not engaging in an orthodox process of statutory construction and by failing to consider the principle of legality. However, the High Court indicated that the proposed appeal did not have sufficient prospects of success.

The application for special leave to appeal was dismissed by the High Court.

Orders