R v Martens (No 2)

Martens was convicted in October 2006 of engaging in sexual intercourse with a person under 16 years old while outside Australia. He unsuccessfully appealed the conviction and sentence in April 2007. In March 2008, he applied to the Commonwealth Minister for Home Affairs for a pardon or, alternatively, requested that his case be referred to the Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld). The Minister declined to refer the case to the Court of Appeal, a decision that was challenged by Martens in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court set aside the Minister's decision and remitted it for consideration under the law by the Court of Appeal. The Attorney-General for the Commonwealth referred the matter to the Court of Appeal under s 672A.

The Court of Appeal had to determine whether it had jurisdiction over a referral by the Commonwealth Attorney-General under s 672A of the Criminal Code 1899 (Qld) for a Commonwealth offence. The Court of Appeal had to decide if s 68 of the Judiciary Act 1903 (Cth) operated to give the Court of Appeal jurisdiction over a referral by the Commonwealth Attorney-General. The Court of Appeal also had to consider whether the fresh evidence presented by Martens made the guilty verdict unsafe and unreasonable.

The Court of Appeal held that it did not have jurisdiction to hear a referral from the Commonwealth Attorney-General for a Commonwealth offence under s 672A of the Criminal Code 1899 (Qld). The Court of Appeal found that s 68 of the Judiciary Act 1903 (Cth) did not operate to give the Court of Appeal jurisdiction over a referral by the Commonwealth Attorney-General. The Court of Appeal found that the fresh evidence presented by Martens did not make the guilty verdict unsafe and unreasonable. The Court of Appeal allowed the appeal, quashed the conviction, and set aside the order for imprisonment.