GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ
ALAN BOND APPELLANT
AND
THE QUEEN RESPONDENT
Bond v The Queen [2000] HCA 13 9 March 2000 P57/1999
ORDER
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of Western Australia made on 22 August 1997 and in lieu order that the appeal purportedly instituted by notice dated 21 February 1997 is dismissed as incompetent.
On appeal from the Supreme Court of Western Australia
Representation:
D F Jackson QC with O P Holdenson QC and M M Lodge for the appellant (instructed by Melasecca Zayler)
E M Heenan QC with P C Govier for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan 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 F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western 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
Bond v The Queen
Criminal law – Offences against State law – Appeal against sentence by the prosecution – Power of Director of Public Prosecutions of the Commonwealth to bring appeal against sentence – Distinction between prosecution and appeal.
Constitutional law – Whether State law can unilaterally vest functions in officers of the Commonwealth – Inconsistency between Commonwealth and State laws – Inapplicability of de facto officers doctrine.
Appeal – Whether appellate court will entertain issue not raised below – Irrelevant where issue is as to competence of proceedings below.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ. This appeal comes to this Court in the following circumstances. In February 1997 the appellant, after pleading guilty to two charges of failing to act honestly in his capacity as an officer of a company, with intent to defraud the company and its shareholders, was sentenced by Murray J, in the Supreme Court of Western Australia, to terms of imprisonment. At the time, he was serving a sentence in relation to another matter. There was an appeal by the prosecution to the Court of Criminal Appeal of Western Australia upon the ground that the sentences imposed by Murray J were inadequate. That appeal was successful. The sentences were increased.
The issue before this Court is whether the appeal to the Court of Criminal Appeal was competent. The ground of the challenge to the competency of the appeal is similar to that which succeeded in Byrnes v The Queen[1]. In brief, the argument is that the legislation, under which…
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 Bond v The Queen
Sign in free to access the full text
Details
AGLC
Bond v The Queen [2000] HCA 13
Case
[2000] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Director of Public Prosecutions of the Commonwealth against a sentence imposed on Mr. Bond. The central dispute concerned the power of the Commonwealth Director of Public Prosecutions to bring an appeal against a sentence imposed under State law, and the validity of such an appeal.
The primary legal issues before the High Court were whether a State law could unilaterally vest functions in an officer of the Commonwealth, and whether there was an inconsistency between Commonwealth and State laws in this regard. The Court also considered the applicability of the de facto officers doctrine and whether an appellate court would entertain an issue not raised in the court below, particularly where the issue concerned the fundamental competence of the proceedings.
The High Court reasoned that the Director of Public Prosecutions of the Commonwealth, as an officer of the Commonwealth, could not have functions unilaterally vested in them by a State law. This was because such an arrangement would infringe upon the constitutional framework separating federal and State powers. The Court found that the State legislation purporting to grant the Commonwealth DPP the power to appeal a sentence was invalid due to inconsistency with the constitutional division of powers. Consequently, the appeal purportedly instituted by the Commonwealth DPP was incompetent.
The High Court allowed the appeal, setting aside the order of the Court of Criminal Appeal of Western Australia and ordering that the appeal purportedly instituted by the Commonwealth DPP be dismissed as incompetent.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the order of the Court of Criminal Appeal of Western Australia made on 22 August 1997 and in lieu order that the appeal purportedly instituted by notice dated 21 February 1997 is dismissed as incompetent.