Strbak v The Queen [2020] HCA 10

Strbak v The Queen [2020] HCA 10

A sentencing judge should not draw an adverse inference against an offender for failing to give evidence regarding contested facts at sentencing, except in rare and exceptional situations. The principle of accusatorial proceedings and the right to silence are preserved post-conviction even in sentencing, and Miller, which allowed adverse inferences more readily in sentencing, was wrongly decided.

Parties
Appellant: Heidi Strbak; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
18 March 2020
Procedural Posture
Criminal Appeal / High Court Appeal From Supreme Court of Queensland, Post Sentence
Outcome
Appeal allowed; sentence quashed; matter remitted for resentencing.
Legal Topics
Sentencing, Manslaughter, Adverse Inference, Right to Silence, Standard of Proof
Criminal Law Sentencing Manslaughter Adverse Inference Right to Silence Standard of Proof

Case Brief

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Parties

Heidi Strbak

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / High Court Appeal From Supreme Court of Queensland, Post Sentence

Legal Issues

  1. 1 Whether sentencing judge erred by drawing adverse inferences from appellant's failure to give evidence at sentencing hearing
  2. 2 Whether R v Miller [2004] 1 Qd R 548 was wrongly decided regarding inference from silence during sentencing
  3. 3 Whether s 132C Evidence Act 1977 (Qld) modifies the common law position on drawing adverse inferences

Ratio Decidendi

A sentencing judge should not draw an adverse inference against an offender for failing to give evidence regarding contested facts at sentencing, except in rare and exceptional situations. The principle of accusatorial proceedings and the right to silence are preserved post-conviction even in sentencing, and Miller, which allowed adverse inferences more readily in sentencing, was wrongly decided.

Court Disposition

Appeal allowed; sentence quashed; matter remitted for resentencing.

Orders

  • Set aside the order of the Court of Appeal of the Supreme Court of Queensland dated 12 March 2019 refusing leave to appeal.
  • Grant leave to appeal.