DPP (Cth) v De La Rosa

Case [2010] NSWCCA 194


Reported Decision: 243 FLR 28205 A Crim R 1

New South Wales


Court of Criminal Appeal

CITATION: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 19 May 2010; 19 August 2010
 
JUDGMENT DATE: 

17 September 2010
JUDGMENT OF: Allsop P at 1; Basten JA at 72; McClellan CJatCL at 148; Simpson J at 272; Barr AJ at 312
DECISION: Appeal dismissed.
CATCHWORDS: APPEAL – criminal – prosecution appeal – procedure – Court undertaking its own research and investigation – further hearing accorded - CONSTITUTIONAL LAW – inconsistency of State and Federal laws – whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) inconsistent with s 16A of the Crimes Act 1914 (Cth) – Constitution, s 109 - CRIMINAL LAW – prosecution appeal – sentencing – whether manifestly inadequate – importation of marketable quantity of cocaine – comparison of sentences for like offences in other courts - FEDERAL JURISDICTION – prosecution appeal – sentencing – double jeopardy – application of Crimes (Appeal and Review) Act 2001, s 68A – whether s 68A inconsistent with Crimes Act 1914 (Cth), s 16A(2)(m) for the purposes of the Constitution, s 109 – whether s 68A picked up by Judiciary Act 1903 (Cth), ss 68, 79 and 80
LEGISLATION CITED: Australian Constitution
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1914 (Cth)
Crimes Legislation Amendment Act (No 2) 1990 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Customs Act 1991 (Cth)
Judiciary Act 1903 (Cth)
Mental Health (Criminal Procedure) Act 1990 (NSW)
CATEGORY: Principal judgment
CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593
Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Barany v R [2000] WASCA 240; (2000) 114 A Crim R 426
Berlitone v R [2009] WASCA 149; (2009) 231 FLR 383
Bibaoui [1997] 2 VR 600
Blay v R [2006] WASCA 248; (2006) 205 FLR 414
British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30
Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268
Cao v R [2009] NSWCCA 273
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168
Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49
Courtney v R [2007] NSWCCA 195
Danial v R [2008] NSWCCA 15
Davidson v R [2009] NSWCCA 150
De Bonde v R [2002] WASCA 251
De Campos v R [2006] NSWCCA 51
De La Espriella-Velasco v R [2006] WASCA 31; (2006) 31 WAR 291
Diefenbach v R [1999] WASCA…

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DPP (Cth) v De La Rosa [2010] NSWCCA 194
Case
[2010] NSWCCA 194
Decision Date

CaseChat Overview and Summary

The appeal in the case of the Director of Public Prosecutions (Cth) versus De La Rosa was heard in the High Court of Australia, arising from a criminal prosecution where De La Rosa was convicted of importing a marketable quantity of cocaine. The case raised significant questions about the consistency of state and federal laws, specifically regarding the provisions of section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) and section 16A of the Crimes Act 1914 (Cth). The Court was required to determine whether the former provision was inconsistent with the latter, under the Constitution, section 109, which provides for the supremacy of federal laws in cases of inconsistency between state and federal legislation. Additionally, the case examined the adequacy of the sentence imposed on De La Rosa and the principle of double jeopardy in the context of prosecution appeals.

The legal issues central to the case involved the interpretation and application of sections 68A and 16A of the respective Acts. The Court had to ascertain whether section 68A, which pertains to the procedure for prosecution appeals in New South Wales, was compatible with section 16A of the federal Crimes Act, which outlines the procedure for appeals by the Director of Public Prosecutions (Cth). Furthermore, the Court examined whether the New South Wales provision was picked up by sections 68, 79, and 80 of the Judiciary Act 1903 (Cth), which deal with the federal jurisdiction of courts in matters of prosecution appeals.

The High Court determined that there was no inconsistency between the provisions of sections 68A of the Crimes (Appeal and Review) Act 2001 (NSW) and 16A of the Crimes Act 1914 (Cth). The Court found that section 68A did not conflict with the federal legislation and was therefore valid. Regarding the sentencing, the Court concluded that the sentence imposed on De La Rosa was not manifestly inadequate. The Court also considered the principle of double jeopardy, finding that the appeal procedure outlined in section 68A did not infringe upon this constitutional protection. As such, the appeal was dismissed, and the original sentence upheld.

Orders

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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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Legal Principle Established

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