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Garth v The Queen

Garth v The Queen

Case [2017] NSWDC 469 27 October 2017

Constitutional Validity

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District Court

New South Wales

Medium Neutral Citation: Garth v R [2017] NSWDC 469
Hearing dates: 1 September 2017
Decision date: 27 October 2017
Jurisdiction: Criminal
Before: Townsden DCJ
Decision:
I am satisfied that s 25B of the Crimes Act acts as a statutory yardstick and is constitutionally valid.

Catchwords: CONSTITUTIONAL LAW — Commonwealth Constitution — Legislative power
CONSTITUTIONAL LAW — The Judiciary — Judicial power — Interference with exercise
CONSTITUTIONAL LAW — The Judiciary — Kable doctrine
CRIME — Violent offences — Assault causing death when intoxicated
Legislation Cited: Commonwealth Constitution, Ch III
Crimes Act 1900 (NSW), ss 18, 19A, 19B, 24, 25A, 25B
Crimes Act 1914 (Cth), Pt IB
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 5F
Migration Act 1958 (Cth), ss 233A, 233B, 233C, 234, 234A, 236B
Cases Cited: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49
Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Kable v Director of Public Prosecutions NSW [1996] HCA 24; (1996) 189 CLR 51
Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
Magaming v R (2013) 252 CLR 381; [2013] HCA 40
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
R v Barbieri [2014] NSWSC 1808
R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep)
South Australia v Totani (2010) 242 CLR 1
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Procedural and other rulings
Parties: Hugh Bacalla Garth (Applicant)
Regina (Respondent)
Attorney-General of New South Wales (Intervening)
Representation:
Counsel:
R Wilson (Applicant)
C Everson (Respondent)
M Sexton SC (Attorney-General, intervening)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)
Crown Solicitor’s Office (Attorney-General, intervening)

File Number(s): 2014/00032541; 2014/00133531

Judgment

HIS HONOUR: The applicant, Hugh Bacalla Garth, was found guilty by a jury on 24 May 2017 in respect to the offence of assault causing death while intoxicated pursuant to s 25A(2) of the Crimes Act 1900 (NSW).
The applicant has submitted that the relevant provisions in the Crimes Act are unconstitutional and therefore invalid. I have been provided with written submissions dated 30 August 2017 and further supplementary written submissions dated 1 September 2017. I have also had the benefit of oral submissions by counsel.
It should be noted by way of background that the applicant, prior to being arraigned, applied to have the original indictment containing the same offence quashed on the basis of s 25B being constitutionally invalid. The Judge at first instance declined to consider such an order, and the decision of the Judge at first instance was upheld by the Court of Criminal Appeal in Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203. I have been provided with a copy of that decision, together with the applicant’s…

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 Garth v The Queen

Details

AGLC: Garth v The Queen [2017] NSWDC 469
Case: [2017] NSWDC 469
Decision Date: 27 October 2017

CaseChat Overview and Summary

The case of Garth v The Queen involved the appellant, Garth, who was convicted of a violent offence resulting in death while under the influence of alcohol. Garth challenged the constitutionality of section 25B of the Crimes Act, arguing that it amounted to an impermissible interference with the exercise of judicial power under the Commonwealth Constitution. The High Court of Australia was tasked with determining whether this statutory provision was valid and whether it breached the separation of powers doctrine by affecting the exercise of judicial power.

The central legal issues revolved around the interpretation of the Commonwealth Constitution and the extent to which legislative provisions can influence judicial processes without contravening the separation of powers. Specifically, the court had to assess whether section 25B of the Crimes Act constituted an impermissible interference with the exercise of judicial power under Chapter III of the Constitution. This involved scrutinising the nature and effect of the statutory provisions in question and comparing them against established principles, including the Kable doctrine, which addresses the limits of permissible legislative interference with judicial functions.

In its decision, the High Court found that section 25B of the Crimes Act did not constitute an impermissible interference with the exercise of judicial power. The Court determined that the statutory provision acted as a yardstick for sentencing and did not usurp the inherent jurisdiction of the courts. It was held that the section provided a guideline for courts when determining sentences, rather than dictating outcomes or limiting judicial discretion. The Court also noted that the provision did not create a new offence or alter the judicial process in a manner that would contravene the separation of powers principle.

The Court's ruling upheld the constitutional validity of section 25B, concluding that it did not amount to an impermissible interference with the exercise of judicial power. The decision reinforced the understanding that statutory provisions can provide guidance to courts in sentencing without breaching constitutional principles, as long as they do not encroach upon the core judicial functions.

Orders

Orders of the court

I am satisfied that s 25B of the Crimes Act acts as a statutory yardstick and is constitutionally valid.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Garth v The Queen [2017] NSWDC 469

Most Recent Citation

R v Garth (No 2) [2017] NSWDC 471

Cases citing this decision · 2 of 2 shown

Huynh v Attorney General (NSW)
[2021] NSWCA 297

…t 2001 [2019] NSWSC 982 GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Garth v The Queen [2017] NSWDC 469; 30 DCLR (NSW) 298 GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 Grollo v Palmer (19…
R v Garth (No 2)
[2017] NSWDC 471 Para 42

…I held that s 25B of the Crimes Act , which sets out the mandatory minimum penalty, is both constitutionally valid and acts as a yardstick: Garth v R [2017] NSWDC 469.…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Garth v The Queen
[2016] NSWCCA 203 Para 3

…o consider such an order, and the decision of the Judge at first instance was upheld by the Court of Criminal Appeal in Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203. I have been provided with a copy of that decision, together with the applicant’s written submissions to that Court and the written submissions provi…
North Australian Aboriginal Justice Agency Ltd v Northern Territory
[2015] HCA 41 Para 21

…In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41, French CJ, Kiefel and Bell JJ distilled the Kable principle into seven propositions, the first being, at [39]:…
R v Barbieri, Mitchell; R v Barbieri, Fiona
[2014] NSWSC 1808 Para 10

…rder of police officers, which carries a mandatory sentence of imprisonment for life and leaves no sentencing discretion to a judge: see R v Barbieri [2014] NSWSC 1808. However, it was submitted that “the confining of a discretion is not necessarily on stronger constitutional grounds than a complete abrogation of di…
Magaming v The Queen
[2013] HCA 40 Para 14

…d that s 25B so construed is constitutionally invalid and referred to, and distinguished, the High Court decision of Magaming v R (2013) 252 CLR 381; [2013] HCA 40 ( Magaming ). In that case the majority rejected the challenge based on Ch III of the Commonwealth Constitution to the provision of a mandatory minim…
Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen (No 2)
[2013] NSWCCA 43 Para 24

…is one end of the statutory yardstick. Counsel for the applicant’s proposition that s 25B is a disabling provision was considered in Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 ( Karim ), where Allsop P at [41] referred to the decision of R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) where the Co…
Karim v The Queen
[2013] NSWCCA 23 Para 24

…atutory yardstick. Counsel for the applicant’s proposition that s 25B is a disabling provision was considered in Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 ( Karim ), where Allsop P at [41] referred to the decision of R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) where the Court:…
South Australia v Totani [2010] HCA 39
[2010] HCA 39

…2015] HCA 41 R v Barbieri [2014] NSWSC 1808 R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) South Australia v Totani (2010) 242 CLR 1 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Procedural and other rulings Parties: Hugh Bacalla Garth (Applicant) Regina (Respondent) Attorney-General…
International Finance Trust Co Ltd v New South Wales Crime Commission
[2009] HCA 49 Para 15

…in a fundamental degree to the judicial process”: International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [58] (French CJ), [88]-[98] (Gummow and Bell JJ), [155]-[160] (Heydon J).…
R v Garth
[2008] VSCA 252 Para 3

…instance declined to consider such an order, and the decision of the Judge at first instance was upheld by the Court of Criminal Appeal in Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203. I have been provided with a copy of that decision, together with the applicant’s written submissions to that Court and the writte…
Wong v The Queen
[2001] HCA 64

…SWSC 1808 R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) South Australia v Totani (2010) 242 CLR 1 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Procedural and other rulings Parties: Hugh Bacalla Garth (Applicant) Regina (Respondent) Attorney-General of New South Wales (Intervening…
Kable v Director of Public Prosecutions (NSW)
[1996] HCA 24

…nance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Kable v Director of Public Prosecutions NSW [1996] HCA 24; (1996) 189 CLR 51 Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 Magaming v R (2013) 252 CLR 381; [2013] HCA 40 North Australian Aboriginal Justice Agency Ltd v Nort…
Fraser Henleins Pty Ltd v Cody
[1945] HCA 49

…s 5F Migration Act 1958 (Cth), ss 233A, 233B, 233C, 234, 234A, 236B Cases Cited: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Kable v Directo…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
18, 19A, 19B, 24, 25A, 25B 7 mentions (from Para 1)
Migration Act 1958 (Cth)
233A, 233B, 233C, 234, 234A, 236B 7 mentions (from Para 14)
Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions
Criminal Appeal Act 1912 (NSW)
5F 2 mentions (from Para 29)
Constitution of Australia (Cth)
1 mention (from Para 14)
Crimes Act 1914 (Cth)
1 mention

Medium Neutral Citation:	Garth v R [2017] NSWDC 469
Hearing dates:	1 September 2017
Decision date:	27 October 2017
Jurisdiction:	Criminal
Before:	Townsden DCJ
Decision:	I am satisfied that s 25B of the Crimes Act acts as a statutory yardstick and is constitutionally valid.
Catchwords:	CONSTITUTIONAL LAW — Commonwealth Constitution — Legislative power CONSTITUTIONAL LAW — The Judiciary — Judicial power — Interference with exercise CONSTITUTIONAL LAW — The Judiciary — Kable doctrine CRIME — Violent offences — Assault causing death when intoxicated
Legislation Cited:	Commonwealth Constitution, Ch III Crimes Act 1900 (NSW), ss 18, 19A, 19B, 24, 25A, 25B Crimes Act 1914 (Cth), Pt IB Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW), s 5F Migration Act 1958 (Cth), ss 233A, 233B, 233C, 234, 234A, 236B
Cases Cited:	Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49 Garth v R (2016) 341 ALR 620; [2016] NSWCCA 203 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Kable v Director of Public Prosecutions NSW [1996] HCA 24; (1996) 189 CLR 51 Karim v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 Magaming v R (2013) 252 CLR 381; [2013] HCA 40 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 R v Barbieri [2014] NSWSC 1808 R v Pot (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) South Australia v Totani (2010) 242 CLR 1 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category:	Procedural and other rulings
Parties:	Hugh Bacalla Garth (Applicant) Regina (Respondent) Attorney-General of New South Wales (Intervening)
Representation:	Counsel: R Wilson (Applicant) C Everson (Respondent) M Sexton SC (Attorney-General, intervening) Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (Respondent) Crown Solicitor’s Office (Attorney-General, intervening)
File Number(s):	2014/00032541; 2014/00133531