Bidmade v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Graham Harold Bidmade, was represented by Mr M.S. Weinberg, QC, and Mr P.A. Coghlan. The respondent, The Queen, was represented by Mr R.A. Finkelstein, QC, Acting Solicitor-General for Victoria, and Ms E.H. Curtain. The core of the dispute concerned the extent to which the Director of Public Prosecutions (DPP) could limit the discretion of the Court of Criminal Appeal when it considered an appeal against sentence.

The legal issue before the High Court was whether the DPP, by making concessions during an appeal against sentence to the Court of Criminal Appeal, could effectively constrain that court's power to impose such sentence as it thought appropriate. Specifically, the applicant argued that the DPP's abandonment of an argument regarding the inadequacy of a minimum term, due to the respondent's terminal cancer, should have placed a limit on the Court of Criminal Appeal's ability to alter that minimum term. The applicant also contended that the DPP's failure to appeal the concurrency of certain traffic offence sentences with the main sentences imposed by the trial judge should similarly have constrained the appellate court.

The applicant's submission was that the DPP, as the appellant, has a specific statutory role and, by making concessions or failing to appeal certain aspects of a sentence, acquiesces in those aspects. This acquiescence, it was argued, should operate as a constraint on the appellate court's discretion, akin to how a concession made before a trial judge would prevent an appeal against that conceded point. The applicant contended that this principle was not a jurisdictional bar but a constraint arising from the adversarial nature of the proceedings and the DPP's conduct.