Citation: Regina v "YZ" [1999] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 25 March 1999
Judge(s): Beazley JA, Sully J, Dunford J
Background
The respondent, referred to by the pseudonym "YZ", was a principal in a large cannabis resin importation and pleaded guilty to a conspiracy charge under Commonwealth law. At sentencing, he gave an undertaking under s 21E of the Crimes Act 1914 (Cth) to give evidence against a co-offender. In exchange, the sentencing judge reduced his head sentence by over a year and shortened his non-parole period.
When the co-offender's trial arrived, YZ refused to cooperate. He declined to give a statement to police, refused to participate in a conference with the Crown, and when called on a voir dire, stated only that he refused to give evidence "for the reasons known to my instructing solicitor and the Court of Appeal." He was not called as a witness at the trial.
The Commonwealth Director of Public Prosecutions (DPP) then appealed under s 21E(2), which permits an appeal against a reduced sentence where an offender has, "without reasonable excuse," failed to honour a cooperation undertaking. A threshold question arose before the full appeal could proceed: could YZ challenge, in these proceedings, whether his failure to cooperate was truly "without reasonable excuse," or was that question solely for the DPP to determine?
Legal Issues
- Whether the phrase "without reasonable excuse" in s 21E(2) of the Crimes Act 1914 (Cth) is a matter for the DPP alone to determine when deciding whether to bring an appeal.
- Whether any challenge to the DPP's assessment of "reasonable excuse" must be brought separately under the Administrative Decisions (Judicial Review) Act 1977 (Cth) rather than in the appeal proceedings themselves.
- Whether the Court hearing the s 21E appeal has jurisdiction to make its own independent determination of whether the offender had a reasonable excuse for failing to cooperate.
Decision
The Court gave a preliminary ruling resolving the threshold question in favour of the respondent's right to raise the issue. Beazley JA delivered the leading judgment, with Sully J and Dunford J agreeing and adding observations of their own.
The DPP had argued that the question of "reasonable excuse" was entirely internal to his decision-making process under s 21E(2), and that if YZ wished to challenge that assessment, he was required to seek judicial review under the ADJR Act in the Federal Court. The Court rejected this construction. While the DPP must form the view that a failure to cooperate was "without reasonable excuse" before deciding to appeal, that opinion does not bind the Court hearing the appeal.
The Court held that the existence or absence of a "reasonable excuse" is properly characterised as a jurisdictional fact: a threshold condition that must actually exist before the Court's powers under s 21E(3) can be enlivened. It is therefore for the Court itself, not the DPP, to determine whether the offender had a reasonable excuse. The DPP's role in forming that opinion goes to the decision to institute the appeal; it does not foreclose the Court's own inquiry once the appeal is on foot.
Sully J and Dunford J added a note that no argument had been directed to the question of whether the DPP's power to determine this issue, given that it can have the effect of increasing the term of imprisonment served, might engage questions about the exercise of judicial power under the Constitution. Because no argument was put and no notices under s 78B of the Judiciary Act 1903 (Cth) were given, the Court left that constitutional question open.
Orders Made
• The court agrees that the preliminary question regarding reasonable excuse should be decided in the manner proposed by Beazley JA
• The court determines that it is for the court hearing the appeal, as a pre-condition of the exercise of its powers, to make its own determination whether the offender has reasonable excuse for not co-operating in accordance with an undertaking
Key Takeaways
- Under s 21E of the Crimes Act 1914 (Cth), the DPP's opinion that an offender failed to cooperate "without reasonable excuse" is a precondition to bringing an appeal, but it does not bind the court hearing that appeal.
- The Court of Criminal Appeal confirmed that "without reasonable excuse" functions as a jurisdictional fact: the court must make its own independent determination of its existence before it can exercise sentencing powers under s 21E(3).
- A collateral challenge to the DPP's assessment of "reasonable excuse" does not have to be brought separately under the ADJR Act in the Federal Court; it can be raised directly in the appeal proceedings.
- The court expressly left open the constitutional question of whether conferring on the DPP any binding power to determine a matter that increases a term of imprisonment would impermissibly confer judicial power on a non-judicial body.
- Procedurally, the Court ordered the use of a pseudonym for the respondent throughout the proceedings, and reserved the possibility that either party could apply in the future for a closed court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 21E
- Administrative Decisions (Judicial Review) Act 1977 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Judiciary Act 1903 (Cth), s 78B
- Customs Act 1901 (Cth), s 233B(1)(cb)
- Constitution, s 71
Cases:
- R v Parsons (1992) 74 A Crim R 172
- Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8
- Waterford v Commonwealth (1987) 163 CLR 54
- Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582
- Webster v The Breadcarters Union of NSW (1930) 30 SR(NSW) 267
- Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
- Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1