Sentencing Courts Cannot Draw Adverse Inferences From a Defendant’s Decision Not to Testify

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By Paul Gregoire and Ugur Nedim

After being found unconscious at his mother’s Biggera Waters home on the Queensland Gold Coast, 4-year-old Tyrell Cobb passed away in hospital on 24 May 2009. The child died as a result of two abdominal injuries caused by blunt force trauma, which occurred within 48 hours of his death.

Tyrell’s mother, Heidi Strbak, and her partner, Matthew Scown, were both alone with the boy at periods during the 48 hours prior to death, when he’d obviously been severely ill. Yet, neither sought medical attention. And the fatal injuries had to be inflicted by one of them.

Strbak and Scown were both sentenced for manslaughter. In October 2017, Scown pleaded guilty to the charge, as he’d failed to obtain medical assistance, constituting criminal negligence. And while he gave evidence, Scown didn’t give any indication that Strbak applied the fatal blows.

On 1 November, Strbak also pleaded guilty to manslaughter. The case against her advanced two scenarios, either she’d applied the force, or she’d neglected to seek help. She conceded guilt to the latter, and the matter proceeded to a disputed facts hearing, where she chose not to testify.

Based on the weight of evidence heard and Strbak’s lack of testimony, Queensland Supreme Court Justice Peter Applegarth concluded in December 2017 that there was a “compelling circumstantial case that Strbak inflicted serious injuries that weekend on her son, including the fatal injuries”.

And a week later, his Honour sentenced the offender to 9 years imprisonment, with non-parole set at 4 years.

The Briginshaw standard

Justice Applegarth outlined in his full findings that as the law stands, Strbak did not have to prove she didn’t inflict the fatal blows, rather that it was up to the prosecution. But unlike a criminal trial, the sentencing hearing didn’t require proof beyond reasonable doubt.

Section 132 of the Evidence Act 1977 (Qld) sets out that on sentencing, a judicial officer “may act on an allegation of fact that is admitted or not challenged”, and consideration of the truth of an undisputed allegation can be based on being satisfied on the balance of probabilities.

“Under the common law of Australia, there are only two standards of proof: beyond reasonable doubt and on the balance of probabilities,” Justice Applegarth explained. “There is no intermediate standard.”

But when the matter being considered outside of a criminal trial involves “grave allegations of misconduct”, he added, what is required is the Briginshaw standard, which necessitates a higher degree of satisfaction in the assessment of the balance of probabilities.

Thus, as Strbak didn’t testify, allegations brought by the prosecution could be weighed in this manner. And as the court found the mother had inflicted multiple nonfatal injuries in the days leading up to the boy’s death, it was then satisfied she’d applied the blunt force that caused death.

Therefore, Strbak was sentenced to a head sentence of 9 years with this understanding in mind.

To the highest court

Strbak appealed her sentence to the Queensland Court of Appeal (QCA) in late 2018. She did so on three grounds, with the third relating to the sentencing judge having given regard to her not having testified. And the court refused the appeal, finding there had been no error in judgement.

So, Strbak appealed to the High Court of Australia in December 2019, contending that the appeals court made an error in finding that the sentencing judge didn’t readily draw adverse inferences based on her refusal to give evidence, and then give more weight to prosecution’s evidence.

The High Court pointed to the precedent in its 2001 case Azzopardi versus The Queen, which found that on sentencing, if there is a dispute of facts, the judge should not draw adverse inferences due to an offender’s failure to give evidence except in rare and exceptional circumstances.

The QCA had based its reasoning on its 2004 case R versus Miller, where it was surmised by the sentencing judge that the defendant had assaulted a man due to his understanding the victim was an off-duty officer, based on the statements of others, despite the accused not giving evidence.

Strbak submitted to the High Court that the method applied in Miller and during her contested facts hearing, leaves the defendant “exposed to punishment by the state for conduct that the state has not proved”.

The bench of five High Court justices explained that Strbak proposed that her case was a prime example of this, as “the difference between the negligent failure to seek medical attention… and the infliction of fatal violence on a child is profound and sounds in the likely length of any sentence,”.

The findings of the court

Their Honours found that the finding in Miller was wrong, outlining that a criminal trial is an accusatorial proceeding, where the prosecution bears the burden to prove allegations, with there being no expectation that the accused provide evidence.

So, without this expectation, no adverse inference can be “drawn from the choice not to do so”.

In a case like Strbak’s, where the defendant has pleaded guilty to an offence, and the prosecution wants to go beyond the facts that have been conceded in the plea, then it is up to it to adduce evidence to prove these further facts “to the criminal standard”: beyond reasonable doubt.

In the current case, their Honours found that Strbak’s plea of guilty to criminal negligence via an omission, did not then relieve the prosecution of having to provide enough evidence to see the accused charged with the more severe of the scenarios it had put to the court.

The prosecution further put forward that the QCA had found that the sentencing judge had not made an adverse inference due to Strbak’s refusal to testify, but rather he’d applied less weight to out of court statements she had made, in which she had denied having caused the fatal blows.

But their Honours found this only applied to certain parts of the Applegarth ruling, in which he’d also stated, “The presumption of innocence does not apply. In the absence of sworn evidence by the defendant about matters about which she could give evidence and be cross-examined.”

Resentenced and released

On 18 March last year, the High Court allowed Strbak’s appeal, quashed the original sentence of December 2017 and remitted the matter to the Queensland Supreme Court for resentencing.

Their Honours set out that “the determination of at least some of the contested facts” had been based on an adverse inference that Strbak had failed “to give sworn evidence at the sentence hearing”. And there was no suggestion of the matter being in the “rare and exceptional category”.

The Supreme Court of Queensland, resentenced Strbak for manslaughter based on negligence on 4 December last year. And Justice David Bodice sentenced her to 5 years imprisonment.

Yet considering Strbak had already served 1,148 days inside, that she’d pleaded guilty and that she had good prospects of rehabilitation, his Honour suspended the sentence, and she was released into the community.

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