GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
ALLAN BAKER APPELLANT
AND
THE QUEEN RESPONDENT
Baker v The Queen [2004] HCA 45
1 October 2004 S395/2003
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with A P Cook for the appellant (instructed by Legal Aid Commission of New South Wales)
M G Sexton SC, Solicitor-General for the State of New South Wales with R D Cogswell SC and J G Renwick for the respondent and intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
Interveners:
H C Burmester QC with N L Sharp intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with K H Glancy intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office for Western Australia)
C J Kourakis QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office for South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Baker v The Queen
Constitutional law (Cth) – Judicial power of Commonwealth – Vesting of federal jurisdiction in State courts – Act empowering State court to determine a minimum term and an additional term for persons serving an existing sentence of life imprisonment – Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by the original sentencing judge unless "special reasons" justified making the determination – Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth.
Constitutional law (NSW) – Separation of powers – Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth – Where class of affected persons closed and known – Whether judicial discretion preserved – Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth.
GLEESON CJ. This is an appeal from a decision of the Court of Criminal Appeal of New South Wales[1] (Ipp AJA, Dunford and Bergin JJ) which dismissed an appeal from a decision of Greg James J of the Supreme Court of New South Wales declaring that the appellant was not eligible for a determination under s 13A of the Sentencing Act1989 (NSW) as it stood at the relevant time. The legislation has since been changed in various respects, but nothing turns on that. In reaching his conclusion, the primary judge applied the provisions of sub-s (3A) of s 13A. Section 13A…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Baker v The Queen [2004] HCA 45
Case
[2004] HCA 45
Decision Date
CaseChat Overview and Summary
In *Baker v The Queen*, the High Court of Australia considered a constitutional challenge brought by the appellant, who had been sentenced to life imprisonment in 1974 for murder and conspiracy to murder. The appellant argued that certain provisions of a 1997 New South Wales Act were invalid because they conferred functions on a State court that were incompatible with its role as a repository of federal judicial power. Specifically, the Act empowered State courts to determine minimum terms and additional terms for prisoners serving existing life sentences, but prohibited such determinations for prisoners subject to a non-release recommendation by the original sentencing judge, unless "special reasons" justified making the determination.
The central legal issue before the High Court was whether the New South Wales Parliament could confer a function upon a State court that was incompatible with the exercise of federal jurisdiction by that court. This involved considering the separation of powers under Chapter III of the Australian Constitution, particularly the vesting of federal jurisdiction in State courts, and whether the specific limitations imposed by the 1997 Act on the judicial discretion of State courts in determining sentence terms for a closed class of prisoners were permissible.
The High Court reasoned that if the impugned provisions had been Commonwealth legislation, they would have complied with the principles governing the exercise of federal jurisdiction. Consequently, the appellant's challenge to the validity of the State Act, based on its alleged incompatibility with the exercise of federal judicial power by a State court, could not succeed. The Court found that the Act did not fundamentally alter the nature of the judicial function performed by the State court in a way that would render it unsuitable as a repository of federal jurisdiction.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
If the provisions of the 1997 Act under challenge had been laws of the Commonwealth, they would have complied with the principles found in Ch III of the Constitution for the exercise of federal jurisdiction by federal courts and by State courts invested pursuant to a law made under s 77(iii) of the Constitution. That being so, the appellant's attack on validity cannot succeed.The facts The appellant was born on 16 January 1948. On 20 June 1974, after an eight day trial before Taylor J and a jury, the appellant and his co‑accused were convicted on four counts, the first two of which were murder and conspiracy to murder. On the first two counts they were sentenced to life imprisonment. The sentences on the other two counts were concurrent with the life sentences and have expired. The appellant has been in custody since 13 November 1973 when he was arrested. In his remarks on sentence, Taylor J detailed the circumstances of the offence and added:"I believe that you should spend the rest of your lives in gaol and there you should die.If ever there was a case where life imprisonment should mean what it says – the imprisonment for the whole of your lives – this is it."It has been accepted that, in making these remarks, Taylor J was recommending that the appellant and his co‑accused never be released. At the time of these events, s 19 of the Crimes Act 1900 (NSW) ("the Crimes Act") stated:"Whosoever commits the crime of murder shall be liable to penal servitude for life."There was then no stipulation for minimum or "non‑parole" terms. However, s 463 of the Crimes Act made provision for what the side note identified as "tickets-of-leave". In particular, sub‑s (1) stated:"The Governor may grant to any offender a written license to be at large, within limits specified in the license, but not elsewhere, during the unexpired portion of his sentence, subject to such conditions indorsed on the license as the Governor shall prescribe, and while such offender continues to reside within the limits specified, and to perform the conditions so prescribed, his sentence shall be suspended."Section 463 had replaced a similar provision in s 409 of the Criminal Law Amendment Act 1883 (NSW)[15]. The grant by the executive government of "tickets-of-leave" had an earlier history in New South Wales as an adjunct to the transportation system, dating from the days of Governor Phillip[16].[15]46 Vict No 17.[16]Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788‑1900, (2002) at 126, 165‑167; "Ticket of Leave", in The Australian Encyclopaedia, (1965), vol 8 at 497‑498. Under the system continued by s 463 of the Crimes Act, there was always the prospect of release on licence. In Kalajzich, Hunt CJ at CL described this as "a prospect which almost universally became fact"[17]. However, s 463 was repealed in 1989, as was s 19[18]. The Sentencing Act 1989 NSW ("the 1989 Act") introduced a detailed system for the making of parole orders[19] and has been amended from time to time.[17](1997) 94 A Crim R 41 at 48.[18]By, respectively, the Prisons (Serious Offenders Review Board) Amendment Act 1989 (NSW), s 5 and the Crimes (Life Sentences) Amendment Act 1989 (NSW), Sched 1, Item 3.[19]See Bugmy v The Queen (1990) 169 CLR 525 at 530‑531, 536‑537.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
HUGH, GUMMOW, HAYNE AND HEYDON JJ
KIRBY J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH, GUMMOW, HAYNE AND HEYDON JJ,
KIRBY J