Will v The Queen

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.