Citation: [2009] NSWCCA 262
Court: Court of Criminal Appeal, New South Wales
Date: 20 October 2009
Judge(s): Basten JA, Fullerton J, McCallum J
Background
The Director of Public Prosecutions (NSW) sought leave to appeal against a sentence imposed on the respondent by the District Court on 25 May 2009. The respondent had pleaded guilty in November 2008 to an offence committed in June 2006. The DPP filed a notice of appeal in late June 2009, with formal grounds of appeal provided only in September 2009.
Shortly before the hearing, a significant complication arose. On 24 September 2009, a new provision, section 68A of the Crimes (Appeal and Review) Act 2001 (NSW), came into force. That provision potentially affected how the Court of Criminal Appeal should approach a DPP appeal against sentence, particularly in relation to the principle of double jeopardy (the rule protecting an accused from being punished or tried twice for the same conduct).
The DPP filed submissions relying on section 68A only the day before the hearing. The respondent's senior counsel indicated that she needed time to obtain instructions, partly because a related matter already before the Court (Carroll, remitted from the High Court) involved formal constitutional challenges to the validity of section 68A under the Commonwealth Judiciary Act 1903.
Legal Issues
- Whether the matter should be adjourned to allow the respondent to obtain instructions on whether to mount a constitutional challenge to section 68A of the Crimes (Appeal and Review) Act 2001 (NSW)
- How section 68A operates in the context of a DPP appeal against sentence and its relationship to double jeopardy principles
- What procedural steps were appropriate pending any constitutional challenge, including whether a notice of intention to raise a constitutional issue should be filed
Decision
The Court found that an adjournment was appropriate in the circumstances. The new provision had only recently commenced, the DPP had filed its submissions relying on section 68A only the day before the hearing, and the respondent had not had a reasonable opportunity to consider the constitutional question or to obtain instructions on it.
The Court noted that a parallel matter, Carroll, was already before the court and involved formal notices served under section 78B of the Judiciary Act 1903 (Cth), which is the mechanism required when a party intends to challenge the constitutional validity of a law. The Court considered it sensible to coordinate this matter with those related proceedings rather than proceed in isolation.
Basten JA, delivering the judgment of the Court, directed that if the respondent intended to raise a constitutional challenge to section 68A, a notice of intention to that effect should be filed in the registry and served on the DPP before the adjourned directions hearing. The Court noted the notice should set out the grounds of the proposed constitutional challenge with sufficient detail to serve as the basis of a section 78B notice if one became necessary.
The Court declined to give further directions at that stage regarding written submissions or responses to any section 78B notice, leaving those matters to the Registrar to coordinate with the related proceedings already on foot.
Orders Made
- The respondent, if seeking to challenge the validity of section 68A of the Crimes (Appeal and Review) Act 2001 (NSW), is directed to file and serve a notice of intention to raise a constitutional issue.
- The matter is adjourned to the Registrar's list on 29 October 2009.
Key Takeaways
- The Court of Criminal Appeal treated the late reliance on a newly commenced statutory provision as a relevant factor justifying an adjournment, given the respondent had no reasonable opportunity to consider its constitutional implications.
- Under section 78B of the Judiciary Act 1903 (Cth), a party intending to challenge the constitutional validity of a State law must serve a formal notice on the relevant attorneys-general before the court can proceed to determine the question.
- Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) was identified as potentially affecting the manner in which the Court of Criminal Appeal determines a DPP sentence appeal, particularly in relation to double jeopardy principles, though its operation was not resolved in this judgment.
- Where multiple proceedings raise the same constitutional question, the Court indicated those matters should be coordinated through the Registrar rather than determined independently.
- This decision is purely procedural and does not resolve any substantive question about the validity or operation of section 68A.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D
- Judiciary Act 1903 (Cth), s 78B
Cases:
- Carroll (matter remitted from the High Court, referenced in judgment but not fully cited)