Citation: Director of Public Prosecutions (Cth) v Pratten [2016] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 17 November 2016
Judge(s): Basten JA; Campbell J; N Adams J
Background
The respondent had been sentenced in April 2016 following conviction on seven charges of dishonestly obtaining a financial advantage from the Commonwealth by failing to disclose income in personal tax returns. Separately, he was sentenced in the District Court in July 2016 for attempting to remove a game fishing boat from Australia to Vanuatu in breach of a restraining order under the Proceeds of Crime Act 2002 (Cth). The Commonwealth Director of Public Prosecutions appealed both sentences as inadequate.
Both appeals were listed for hearing before the Court of Criminal Appeal on 17 November 2016. On the morning of the hearing, counsel for the respondent indicated he had instructions to seek an adjournment, but that if the application was refused, his instructions were withdrawn.
The adjournment application rested primarily on the existence of proceedings in the High Court, specifically an application to have the Supreme Court proceedings removed into the High Court and a writ of summons raising a purported constitutional issue. The respondent argued the sentence appeals should not proceed until those High Court matters were resolved.
Legal Issues
- Whether the Court should adjourn the prosecution's sentence appeals to allow a pending High Court removal application to be determined first
- Whether the constitutional issue raised in the High Court proceedings was arguable, and whether it had any bearing on the sentence appeals
- Whether the respondent's non-receipt of the Director's appeal materials in prison justified an adjournment
- Whether the pendency of an unfiled conviction appeal provided grounds to delay the sentence appeals
Decision
The Court refused the adjournment on all grounds advanced. Basten JA (with whom Campbell J and N Adams J agreed) concluded that the High Court proceedings did not provide a sound basis for delay. The respondent's own submissions acknowledged that, once final judgment had been delivered by the sentencing court, the power to remove proceedings to the High Court under s 40(2)(b) of the Judiciary Act 1903 (Cth) was spent, because no cause remained pending in the State court. On that reasoning, there was nothing left to await: the removal application had already been extinguished by the delivery of the sentence.
The constitutional argument underlying the High Court proceedings had in any event been considered and rejected by the trial judge as unarguable. The argument was that determining "financial advantage" in the criminal proceeding impermissibly usurped an administrative function of the Australian Taxation Office, rendering the court's exercise of jurisdiction inconsistent with Chapter III of the Constitution. The trial judge had found that the criminal proceedings did not engage the tax assessment process, and that nothing done by the court could interfere with the ATO's independent assessment function. Further, the same constitutional point had previously been raised and then abandoned after the first trial, and had not been pursued on the conviction appeal that followed.
Basten JA also noted that even if the High Court proceedings retained some merit, they could proceed regardless of whether the sentence appeals were heard. The appeals were therefore not rendered nugatory by proceeding. Additionally, the argument that adjournment was needed pending a section 78B notice of constitutional matter was addressed: no valid notice had been served in accordance with that provision.
The remaining grounds were disposed of briefly. The respondent's non-receipt of the Director's appeal materials in prison did not justify adjournment, given that he was represented by briefed and prepared solicitor and counsel. The existence of an unfiled notice of intention to appeal against conviction carried no weight, particularly as a judge of the Court had already considered and rejected a preliminary application to delay the sentence appeals on that basis.
Orders Made
• The application for an adjournment is refused
Key Takeaways
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Once a final judgment is delivered by a State court, no cause remains "pending" in that court, and the High Court's power under s 40(2)(b) of the Judiciary Act 1903 (Cth) to remove the matter is spent. A removal application cannot be used to delay subsequent appellate proceedings in circumstances where finality has already occurred.
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An adjournment to allow High Court proceedings to be determined will not be granted where the constitutional argument underlying those proceedings has been assessed by the sentencing court as unarguable, and where the same point was previously raised and abandoned.
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Representation by briefed and prepared counsel is ordinarily sufficient to allow a listed hearing to proceed. A party's personal non-receipt of appeal materials in custody does not, without more, justify adjournment.
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An unfiled notice of intention to appeal conviction does not, without more, provide grounds to adjourn a separately listed sentence appeal, particularly where the question has already been considered and refused at a preliminary stage.
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The Court of Criminal Appeal confirmed that where High Court proceedings could proceed independently of the sentence appeals, no utility existed in adjourning those appeals. The two sets of proceedings were not mutually exclusive.
Legislation and Cases Referenced
Legislation:
- Judiciary Act 1903 (Cth), ss 40, 78B
- Proceeds of Crime Act 2002 (Cth)
- Income Tax Assessment Act 1936 (Cth)
- Income Tax Assessment Act 1997 (Cth)
Cases:
- R v Pratten (No 26) [2016] NSWSC 935
- Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179