Strbak – the right to silence in contested facts hearings on sentence

Yesterday, in Strbak the High Court allowed an appeal from the QCA, holding that adverse inferences should not be made where the offender declines to give sworn evidence in a contested facts hearing. In doing so, the Court overturned Miller, a QCA authority on this point.

CONTENT WARNING: Child homicide

Factual Background

The Appellant and her partner pleaded guilty to manslaughter of the appellant’s four year old son. He had died as a result injuries inflicted by one of them but it was unclear which one. Her partner had been sentenced upon the basis that he was criminally negligent in failing to obtain medical assistance for the child.

After the appellant entered her plea, the matter proceed to a hearing to determine the factual basis upon which she should be sentenced. While some facts were agreed, a number were contested, including whether the appellant had actually inflicted the fatal injuries or whether she had simply failed to obtain medical assistance.

The appellant’s partner gave sworn evidence that he did not inflict the injuries but did not give direct evidence that the appellant had. The appellant did not give evidence in the hearing, although her account was before the court in the form of interviews and statements to police.

In determining her sentence, the sentencing judge made a number of findings of fact including several inferences adverse to the appellant.  In making these inferences the sentencing judge reflected the approach in Miller. His Honour ultimately concluded that the appellant had inflicted the injuries and sentenced her accordingly.

In the QCA, the Court distinguished Miller as being only applicable where the was uncontested evidence whereas in this case there was evidence – albeit unsworn –  that contested the prosecution’s version (in the form of the interviews and statements given to police). However, the QCA did not find any error with the sentencing judge’s approach

On appeal to the High Court, it was held that Miller was wrongly decided and that the rule against drawing adverse inferences from silence does apply to sentencing hearings. Moreover, an analysis of the judgment of the QCA revealed that despite distinguishing Miller, that court had in fact engaged in impermissible reasoning of the kind outlined in Miller.


As with Strbak, Miller involved a contested fact hearing for sentence. The issue for the purposes of sentencing was the motivation for an assault occasioning actual bodily harm on an off duty police officer.  The disputed fact was whether the offender knew that the victim was a police officer. The prosecution led evidence that Miller knew that the victim was a police officer. Miller did not give evidence, however there was evidence before the court that supported his position.

The QCA’s approach in Miller was in part that the Azzopardi line of authority, which strictly limits the circumstances in which a tribunal of fact can draw adverse inferences against a silent accused, was based on the presumption of innocence. Accordingly, because this presumption has been rebutted by the time the matter gets to sentencing, negative inferences could be safely drawn.

The second important aspect of the Miller reasons was the effect of s 132C of the Queensland Evidence Act. This section provides that sentencing fact finding is to be conducted on a Briginshaw balance of probabilities basis (see here for more on the Briginshaw standard). This statutory intervention importing the civil standard of proof further supported the QCA’s conclusion that adverse inferences could be drawn from an offender’s silence.

These two considerations meant that for the QCA, as far as contested fact hearings were concerned, ‘the distinction … between criminal and civil trials [was] no longer valid.’ (Miller at [26]). Accordingly the QCA determined that a sentencing judge could proceed

as common sense dictates, [to] more readily to accept prosecution evidence or draw inferences invited by the prosecution in the absence of contradictory evidence”

Miller, at [27]

Miller wrongly decided 

The High Court held that Miller was wrongly decided. The QCA’s approach in Miller was incorrect because it overlooked the conceptual basis for the distinction between criminal and civil trials made in Azzopardi and other cases such as Weissensteiner and RPS.  This basis was the accusatorial nature of criminal proceedings:

a criminal trial is an accusatorial proceeding in which the prosecution bears the burden of proving the allegations it makes that, as a general rule, there can be no expectation that the accused will give evidence

at [31] (emphasis added).

In other words, the accusatorial nature of the proceedings provides the foundation for both the presumption of innocence and standard of proof in criminal matters. This accusatorial nature is not altered by either a rebuttal of the presumption by a guilty plea or a modification of the standard of proof by legislative intervention.

What is the effect of a guilty plea and where does the onus lie?

The Court, citing Maxwell, observed that

A plea of guilty is the formal admission of each of the legal ingredients of the offence

However, beyond this the accusatorial nature of criminal proceedings generally and sentencing in particular means that it is for the prosecution to adduce evidence to provide the factual basis upon which they seek to have the offender sentenced (at [32]).

Under the common law, this would need sufficient to eliminate all reasonable doubt (at [32], citing Olbrich). The fact that there had been a legislative intervention to reduce this to a civil standard to proof did not change the onus of proof.

The importance of adducing evidence is effectively illustrated in this particular case where liability for manslaughter could have been based on either actually inflicting the fatal injuries or ‘merely’ failing to seek medical assistance. The former involves a much higher level of moral culpability which, all other things being equal, would be reflected in a longer sentence.

Did the sentencing judge apply Miller?

Having overturned Miller, the final question whether the sentencing judge had actually drawn adverse inferences from the offender’s silence. On a close reading of the reasons of the sentencing judge, it was evident that his Honour had used the impermissible reasoning process described in Miller. Accordingly, the fact finding for a number of the disputed faces was infected by error which was ‘material to the ultimate conclusion that [the appellant] inflicted the fatal injuries’ (at [44]). Accordingly the matter was remitted to the QSC for re-hearing.

This post was originally posted on Amicus on 19 March 2020

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