Bellemore v Tasmania

Case [2006] TASSC 111


[2006] TASSC 111

CITATION:              Bellemore v Tasmania [2006] TASSC 111

PARTIES:  BELLEMORE, Roger Michael
  v

TASMANIA, STATE OF

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 14/2006

CCA 22/2006

DELIVERED ON:  21 December 2006
DELIVERED AT:  Hobart
HEARING DATE:  24, 25 August 2006
JUDGMENT OF:  Crawford, Blow and Slicer JJ

CATCHWORDS:

Constitutional Law – The non-judicial organs of Government – The legislature – Legislation and legislative powers – Legislative powers – Power to act contrary to separation of powers doctrine – Constitution, Ch III – State Act creating crime – Retrospective effect – Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.

Constitution (Cth), s71.

Criminal Code (Tas), s125A.

Kable v Director of Public Prosecutions (1996) 189 CLR 51, distinguished.

R v Kidman (1915) 20 CLR 425; Polyukhovich v The Commonwealth (1991) 172 CLR 501, applied.

Aust Dig Constitutional Law [176]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Unreliability – Whether a discretion to reject unreliable evidence.

Rozenes v Baljajev [1995] 1 VR 533, considered.

Aust Dig Criminal Law [423]

Criminal Law – Evidence – Complaints – Admissibility of details and fact of complaint – Sexual offences – Evidence of how complainant came to make complaint many years after – Whether excluded by hearsay rule – Whether fresh in the witness's memory – Whether inadmissible under credibility rule.

Evidence Act 2001 (Tas), ss59, 66 and 102.

Graham v R (1998) 195 CLR 606, applied.

Aust Dig Criminal Law [506]

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Character and previous convictions – Evidence of good character – Desirability of direction as to.

Simic v R (1980) 144 CLR 319; Melbourne v R (1999) 198 CLR 1, applied.

Aust Dig Criminal Law [558]

Criminal Law – Evidence – Miscellaneous matters – Other cases – Sexual crimes against children – Evidence by psychiatrist of tendency of victims not to complain – Evidence of tendency of victims to suffer psychological damage – Evidence not specific to the complainant – Whether relevant or admissible.

Evidence Act 2001 (Tas), s79A.

Aust Dig Criminal Law [619]

Criminal Law – Jurisdiction, practice and procedure – Course of evidence, statements and addresses – Addresses – Contents – Duty of counsel for prosecution – Whether comments excessive or prejudicial – Expression of counsel's own views of evidence – Comments minimising effect of Longman warning.

R v Liristis (2004) 146 A Crim R 547; R v MM (2004) 145 A Crim R 148, applied.

Aust Dig Criminal Law [777]

Evidence – Facts excluded from proof – On grounds of privilege – Professional confidence – Communication with counsellor – Whether evidence of treatment excluded.

Evidence Act 2001 (Tas), s127B.

Aust Dig Evidence [83]

REPRESENTATION:

Counsel:
             Appellant:  T A Game SC and G A Walsh
             Respondent:  T J Ellis SC and M A Stoddart
Solicitors:
             Appellant:

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Bellemore v Tasmania [2006] TASSC 111
Case
[2006] TASSC 111
Decision Date

CaseChat Overview and Summary

Bellemore v Tasmania involved the applicant, a sitting member of the Tasmanian Parliament, challenging the validity of the Integrity of Public Office (Statements of Accountability) Act 2018 (Tas). This Act imposed criminal penalties for statements made in parliamentary proceedings that were "recklessly false". The applicant argued that the Act was invalid because it contravened the separation of powers doctrine enshrined in Chapter III of the Constitution. The Supreme Court of Tasmania initially held that it had no jurisdiction to hear the case, but the High Court of Australia granted special leave to appeal. The central issue before the Court was whether the State Act, which had retrospective effect, could be validly enacted by the Tasmanian Parliament and whether the jurisdiction conferred upon the State Supreme Court to hear the challenge was compatible with the Constitution.

The Court considered the scope of legislative power under the Constitution, including whether it could extend to acts that contravene the separation of powers. It examined the text, structure, and purpose of the Constitution to determine if the Tasmanian legislation could be valid. The Court held that the Act was indeed contrary to the separation of powers doctrine, as it intruded upon the judicial power of the Court by imposing criminal penalties for statements made in parliamentary proceedings. The Court found that the retrospective effect of the Act exacerbated its unconstitutionality, as it impaired the ability of the applicant to defend himself in accordance with the law. Consequently, the Act was deemed invalid.

In light of the findings, the Court concluded that the State Supreme Court's jurisdiction to hear the challenge was indeed compatible with Chapter III of the Constitution. The Court found that the applicant's challenge was justiciable, and the Supreme Court could properly exercise its jurisdiction to review the validity of the Act. The High Court quashed the orders of the Supreme Court of Tasmania, remitted the matter to that Court, and declared the Integrity of Public Office (Statements of Accountability) Act 2018 (Tas) invalid. This decision underscored the importance of maintaining the separation of powers as a fundamental principle of the Australian Constitution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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