Dunstan v The Queen

[2005] HCATrans 258

[2005] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C13 of 2003

B e t w e e n -

COLIN GEORGE DUNSTAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 1.48 PM

Copyright in the High Court of Australia

McHUGH J:   The applicant seeks special leave to appeal from the whole of the judgment of the Court of Appeal of the Supreme Court of the Australian Capital Territory given on 3 November 2003. The issue before that Court was whether Higgins CJ had erred in holding that he lacked jurisdiction to vary the sentences that, as trial judge, he had imposed upon the applicant on 26 April 2000. The applicant had been convicted of three counts of intentionally attempting to inflict grievous bodily harm contrary to section 19 of the Crimes Act 1900 (ACT) and six counts of knowingly posting an article containing an explosive contrary to section 85X of the Crimes Act 1914 (Cth).

The applicant does not challenge, and has not previously challenged, the validity of the sentences. Instead, he contends that section 180 of the Legislation Act 2001 (ACT) empowered Higgins CJ to change the sentences after those sentences had passed into the record of the Court.

The Full Court of the Supreme Court correctly rejected this contention. Section 180 does not allow the courts to “reverse or change” sentencing decisions after the conclusion of proceedings and at a time when the trial judge has become functus officio.  The application therefore has no prospects of success.

The application for special leave is dismissed.

Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 1.48 PM THE MATTER WAS CONCLUDED