Muir v The Queen

[2004] HCA 21

HIGH COURT OF AUSTRALIA

McHUGH, KIRBY AND HAYNE JJ

DAVID JOHN MUIR   APPLICANT

AND

THE QUEEN  RESPONDENT

Muir v The Queen
[2004] HCA 21
2 April 2004
C3/2003

ORDER

Notice of motion dismissed.  Application for special leave to appeal from the decision of the Court of Appeal of the Australian Capital Territory refused.

Representation:

No appearance for the applicant

I D Temby QC with J R White for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Muir v The Queen

Practice and procedure – High Court – Application for special leave to appeal from orders of Supreme Court of Australian Capital Territory – Application on motion by an indigent prisoner in custody for an order requiring his production to High Court to enable him to make oral submissions in support of application for special leave – Whether the High Court has power to make such an order – Whether it would do so in the case – Whether application to be decided on the papers. 

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether implied powers under the Constitution to uphold the authority of the High Court – Whether question of power of High Court to order production of an unrepresented prisoner applicant for special leave should be referred to a Full Court – Whether appellate jurisdiction of the High Court engaged at stage of special leave application – Whether differing practices of custodial authorities in different Australian jurisdictions relevant to disposition of motion – Whether motion and application could and should be decided on the papers.

Criminal law and procedure – Sentencing – Convicted federal offender – Statutory provisions governing sentencing of prisoner convicted of offences against Crimes Act 1914 (Cth) – Whether sentencing judge correctly applied federal sentencing law – Whether decision of Court of Appeal attended by sufficient doubt to warrant grant of special leave.

Constitution, ss 73, 75.
Crimes Act 1914 (Cth), s 16G.
Judiciary Act 1903 (Cth), ss 35(2), 35AA(2), 78.
High Court Rules, O 55 r 1, O 55 r 39, O 69A r 15.

1. McHUGH AND HAYNE JJ.   David John Muir has filed an application for special leave to appeal against orders dismissing his appeal to the Court of Appeal of the Australian Capital Territory against sentences imposed on him for certain federal offences.  Mr Muir is in prison.  He is now being held at Goulburn Correctional Centre.  He has been told by a manager at that facility that, without an order of the Court, the prison authorities will not deliver him to the Court for him to make oral submissions in support of his application for special leave.

2. Acting under O 69A r 15 of the High Court Rules, McHugh J directed that the application for special leave be determined on the papers.  After the direction under O 69A r 15 had been given, Mr Muir…