Bakewell v The Queen - [2009] HCA 24

HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
JONATHAN PETER BAKEWELL  APPELLANT
AND
THE QUEEN  RESPONDENT
Bakewell v The Queen [2009] HCA 24
7 July 2009
D5/2009
ORDER
1.        Appeal allowed.
2.Set aside the orders of the Full Court of the Supreme Court of the Northern Territory made on 11 December 2008 and, in lieu thereof, order that the questions referred to that Court be answered as follows:

Question 1: Is subs 19(3), subs 19(7) and/or subs 19(9) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (as amended) ("the Act") invalid in its application to Bakewell because:
(a)it infringes the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; or
(b)it otherwise constitutes an unwarranted interference with the judicial power of the Supreme Court of the Northern Territory?

Answer: Unnecessary to answer.

Question 2: Does the Director's application made under subs 19(9) of the Act on 26 May 2008 ("application") constitute a contempt of the Supreme Court of the Northern Territory?

Answer: Unnecessary to answer.

Question 3: Should the proceedings commenced by the application be permanently stayed because they:
(a)are oppressive?
(b)are scandalous, frivolous or vexatious?
(c)constitute an abuse of process of the Supreme Court of the Northern Territory?

Answer: Unnecessary to answer.

Question 4: Does s 19 of the Act (as amended) apply to Bakewell?
Answer: No.

Question 5: Should Bakewell's non-parole period of 20 years set by s 18 of the Act (as amended) be revoked and replaced with a non-parole period of 25 years?
Answer: Unnecessary to answer.

On appeal from the Supreme Court of the Northern Territory
Representation
M L Abbott QC with I L Read for the appellant (instructed by Legal Aid Commission)
M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill for the respondent (instructed by Solicitor for the Northern Territory)
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with N M Wood 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 C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
P M Tate SC, Solicitor-General for the State of Victoria with S P Donaghue intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
M G Hinton QC, Solicitor-General for the State of South Australia with S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject…

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.

Continue reading Bakewell v The Queen

Details

AGLC: Bakewell v The Queen [2009] HCA 24
Case: [2009] HCA 24
Decision Date: 7 July 2009

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Bakewell against the Queen concerning the application of Northern Territory legislation to a prisoner transferred to South Australia. Bakewell had been sentenced in 1989 to mandatory life imprisonment for murder, with a 20-year non-parole period deemed under the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT). The Act allowed the Supreme Court of the Northern Territory to revoke this deemed non-parole period and fix a longer one, or no period at all, upon application by the Director of Public Prosecutions. However, Bakewell was transferred to South Australia before such an application was made, and under the Prisoners (Interstate Transfer) Act, his Northern Territory sentence was deemed to have been imposed by a South Australian court.

The central legal issues before the High Court were whether the Supreme Court of the Northern Territory retained jurisdiction to determine an application made under section 19 of the Northern Territory Act after the prisoner's transfer to South Australia, and whether Bakewell was still considered a "prisoner" within the meaning of that Act for the purposes of such an application. The Court also considered whether the application constituted a contempt of court or an abuse of process, and whether the Act itself was invalid in its application to Bakewell.

The High Court reasoned that the term "prisoner" in Division 1 of Part 5 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) should be interpreted according to its natural meaning. The Court found that upon Bakewell's transfer to South Australia, he ceased to be a prisoner serving a sentence under Northern Territory law, and therefore the Director's application under section 19 did not relate to a "prisoner" as defined by the Act. Consequently, the Supreme Court of the Northern Territory could not apply section 19 to Bakewell.

The appeal was allowed, and the orders of the Full Court of the Supreme Court of the Northern Territory were set aside. The High Court ordered that Question 4, "Does s 19 of the Act (as amended) apply to Bakewell?", be answered "No". The other questions referred to the Full Court were deemed unnecessary to answer.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of the Northern Territory made on 11 December 2008 and, in lieu thereof, order that the questions referred to that Court be answered as follows:

Question 1: Is subs 19(3), subs 19(7) and/or subs 19(9) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (as amended) ("the Act") invalid in its application to Bakewell because:

(a) it infringes the principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; [1996] HCA 24; (1996) 189 CLR 51; or

(b) it otherwise constitutes an unwarranted interference with the judicial power of the Supreme Court of the Northern Territory?

Answer: Unnecessary to answer.

Question 2: Does the Director's application made under subs 19(9) of the Act on 26 May 2008 ("application") constitute a contempt of the Supreme Court of the Northern Territory?

Answer: Unnecessary to answer.

Question 3: Should the proceedings commenced by the application be permanently stayed because they:

(a) are oppressive?

(b) are scandalous, frivolous or vexatious?

Answer: Unnecessary to answer.

Question 4: Does s 19 of the Act (as amended) apply to Bakewell?

Answer: No.

Question 5: Should Bakewell's non-parole period of 20 years set by s 18 of the Act (as amended) be revoked and replaced with a non-parole period of 25 years?

Answer: Unnecessary to answer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL J (dissent)

To do that would require reading "prisoner" in Div 1 of Pt 5 as extending to a person who had been, but was no longer, serving a sentence under Northern Territory law. That step should not be taken. The term "prisoner" in Div 1 of Pt 5 should be given its natural meaning. The application made by the Director in respect of the appellant did not relate to a "prisoner".Conclusion and orders For these reasons, the appeal to this Court should be allowed. The orders of the Full Court of the Supreme Court of the Northern Territory made on 11 December 2008 should be set aside. In their place there should be orders that the questions referred to the Full Court be answered as follows:Question 1Is subs 19(3), subs 19(7) and/or subs 19(9) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (as amended) ("the Act") invalid in its application to Bakewell because:(a)it infringes the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; or(b)it otherwise constitutes an unwarranted interference with the judicial power of the Supreme Court of the Northern Territory?Answer Unnecessary to answer.Question 2Does the Director's application made under subs 19(9) of the Act on 26 May 2008 ("application") constitute a contempt of the Supreme Court of the Northern Territory?Answer Unnecessary to answer.Question 3Should the proceedings commenced by the application be permanently stayed because they:(a)are oppressive?(b)are scandalous, frivolous or vexatious?(c)constitute an abuse of process of the Supreme Court of the Northern Territory?Answer Unnecessary to answer.Question 4 Does s 19 of the Act (as amended) apply to Bakewell?Answer No.Question 5Should Bakewell's non‑parole period of 20 years set by s 18 of the Act (as amended) be revoked and replaced with a non‑parole period of 25 years?Answer Unnecessary to answer.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.