Palmer v The Queen

[1994] HCATrans 399

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl3 of 1994

B e t w e e n -

PETER MARK PALMER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 12.40 PM

Copyright in the High Court of Australia

Palmer 1 30/6/94

MR S.E. HERBERT, OC:  May it please the Court, I appear with

my learned friend, MR A.J. GLYNN, for the applicant. (instructed by Grays Lawyers)

· MR M.J. BYRNE, OC:  May the Court please, I appear with my

learned friend, MR M.C. CHOWDHURY, for the

respondent. (instructed by D. Field, Solicitor to

the Director of Prosecutions (Queensland))

MR HERBERT:  Your Honours, we cannot pursue any submissions

beyond those submissions that are contained in the

summary of argument which we noticed does not

appear to be in the appropriate form. Might we

take Your Honours, by way of assistance, to page 2 ·

of that document, paragraph 10, and identify there

what appears to be a complaint about the manner in

which the Court of Appeal below dealt with the

matter.Then there appears to be a further

identification at paragraphs 11 and 12 of what is

said to be some error below, and next at

paragraphs 13 and 14 there is some apparent

elucidation of what the complaints are at the

earlier paragraphs.

To summarize the matter, it appears to be that

those complaints, in effect, assert that the court

below ought not have had regard to anything at all

either by way of comparative sentence or authority,

argument or submission which was not all put below

to the court at first instance.

Second, there appears to be a complaint and it

is a little bit difficult to identify but at

paragraph 19 it is said that a question arises in

that the Court of Appeal ascribed to the learned
sentencing judge its conception of how the learned

judge below arrived at that sentence.

Now, the first point, we would submit, is that

if those complaints were able to be made out on the

court below considered. Our difficulty in this respect is twofold: the judgments do not appear to support the complaints in that it is not at all apparent that the Court of Appeal did have regard

record, and they amount to an assertion that a

to any comparative sentence or other authority of

any particular kind not referred to below.

At page 5 of the record at line 30, the

Queensland Chief Justice spoke of a case of

Corrigan, a decision given prior to sentence in

this case, but it is clear that His Honour went on

to say, at line 38:

Palmer 2 30/6/94

If one were to look at that decision as

providing any sort of a guide one would not be

left thinking that the present respondent has

been other than relatively leniently treated,

but of course that is only one authority

amongst others which can be referred to, and

were referred to, including others in

different jurisdictions. They are, in my

view, not of the same assistance on a

sentencing matter like the present, as

decisions within this jurisdiction itself are,

but each case in the end has to be considered

on its own facts.

We are not able to support by way of authority the proposition that a court of appeal may not have regard to cases or submissions not put below.

As to the second complaint, which appears to

be at paragraphs 19 and following of the outline,

we are again quite unable to assist the Court with

authority to support those propositions and we

notice, without any submission to the contrary, paragraph 2 of Part III of our learned friend's

outline of argument which sets out the relevant

provision under which Attorney appeals in

Queensland proceed.

If I might speak more generally of the

practice in Queensland. Notwithstanding the

provisions of 669A(l), the Court of Appeal does

not, as a matter of course, regard appeals by the

Attorney as being matters which involve, as it

were, no consideration of the result below. The

practice is to interfere only where the court is

able to be persuaded that there is a reason of

substance for holding that the sentence imposed

below was in error and the court, in fact, limits

its approach and regards appeals by the Attorney as

being, if not purely appeals against a discretion,

then, none the less, appeals which are not to be

considered as matters where, if the court disagrees

with the result below, it imposes a different

sentence, rather it will not interfere until
persuaded that the court below has erred in some

particular way or that the sentence imposed is one

outside proper principle.	We cannot assist the
Court further.

MASON CJ: Thank you, Mr Herbert. The Court need not

trouble you, Mr Byrne.

No ground has been put forward in this case

which would justify the grant of special leave to

appeal. The application is therefore refused.

AT 12.48 PM THE MATTER WAS ADJOURNED SINE DIE

Palmer 30/6/94