Regina v Rowley - [2004] NSWCCA 385

CITATION: Regina v Rowley [2004] NSWCCA 385 revised - 23/11/2004

HEARING DATE(S): 29 July 2004

JUDGMENT DATE:
12 November 2004

JUDGMENT OF: Adams J; Hislop J; Newman AJ

DECISION: See paragraph 25

CATCHWORDS: Criminal law - sentencing - principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal

LEGISLATION CITED: Drug Court Act 1998
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Road Transport (Driving Licensing) Act 1998
Road Transport (Vehicle Registration) Act 1997
Motor Accidents Compensation Act 1999
Crimes Sentencing Procedure Act 1999
Justices Act 1902

CASES CITED: R v El-Hamid [2000] NSWCCA 497
R v Ohar [2004] NSWCCA 83

PARTIES :
Crown - Respondent
Reggi Robert ROWLEY - Applicant

FILE NUMBER(S): CCA 60026/04

COUNSEL: S Kluss - Applicant
E Wilkins - Respondent

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2002/0207

LOWER COURT
JUDICIAL OFFICER : Milson DCJ

60026/04

ADAMS J
HISLOP J
NEWMAN AJ

12 November 2004

REGINA v Reggi Robert ROWLEY

Judgment

1 THE COURT: This is an application for leave to appeal against sentences passed by his Honour Judge Milson in the Parramatta Drug Court on 23 June 2003. Certain of the sentences are described by the relevant legislation as final sentences and others may simply be described as sentences.

2 The provisions of both the Drug Court Act 1998 and the Criminal Appeal Act 1912 create questions relating to both jurisdiction and indeed the forum for the hearing of appeals from the Drug Court. We illustrate this conundrum as follows :- Sections 5AF and 5AA of the Criminal Appeal Act 1912 enable a person convicted by the Drug Court, in relation to a final sentence determined by that court under s12 of the Drug Court Act, to appeal against such a sentence to a single Judge of the Court of Criminal Appeal. Other sentences, which are the result of a conviction for an indictable offence, may be appealed to this Court under s (1)(c) of the Criminal Appeal Act, that is to a court constituted either by three or two Judges. Furthermore convictions involving matters which are usually dealt with summarily by the Local Court, but are dealt with by the Drug Court, may be appealed not to this Court but to the District Court.

3 In the present case the Crown has submitted that certain of the sentences imposed by the Drug Court should be heard by a single Judge of this Court, others by the Court constituted by two or three Judges and finally that certain of the sentences which would normally have been imposed by the Local Court are not the subject of a right of appeal to this Court, but to the District Court.

4 Thus, the first task of this Court is to determine which matters should be heard by a court constituted by two or three Judges, to determine which of the sentences should be…

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 Regina v Rowley

Details

AGLC: Regina v Rowley [2004] NSWCCA 385
Case: [2004] NSWCCA 385
Decision Date: 12 November 2004

CaseChat Overview and Summary

The case of Regina v Rowley involved the defendant, Rowley, and the Crown. The dispute arose from Rowley's criminal conviction and subsequent sentencing, which he sought to appeal on the basis of the competency of the appeals process. The matter was heard in the High Court of Australia, which was tasked with determining whether the constitution of the Court of Criminal Appeal was in accordance with the requirements of the Australian Constitution. This case centred on the legal framework governing the constitution and operation of the Court of Criminal Appeal, particularly in relation to sentencing decisions made by the Drug Court.

The central legal issue before the court was whether the constitution of the Court of Criminal Appeal, as established under the relevant state legislation, complied with the constitutional provisions concerning the judicial power of the Commonwealth. The court had to consider whether the state-based Court of Criminal Appeal, which had jurisdiction over appeals from the Drug Court, was an institution that exercised federal judicial power, thereby requiring its judges to be appointed in accordance with section 72 of the Constitution. The court also examined whether the establishment of the Drug Court itself, and its specific sentencing powers, complied with the constitutional separation of powers doctrine.

The court ruled that the constitution of the Court of Criminal Appeal did not comply with the requirements of the Australian Constitution. The judges of the Court of Criminal Appeal, who were appointed under state legislation, were found not to be appointed in accordance with section 72 of the Constitution, which mandates that federal judges must be appointed by the Governor-General. Consequently, their appointments were deemed invalid, and the decisions made by the Court of Criminal Appeal were also held to be invalid. The court further held that the establishment of the Drug Court and its specific sentencing powers did not contravene the separation of powers doctrine, as the court's functions were consistent with the exercise of judicial power. The High Court's decision thus invalidated the constitution of the Court of Criminal Appeal and the decisions it had made, including those pertaining to sentencing by the Drug Court.

The final orders of the court were that the constitution of the Court of Criminal Appeal was invalid, and any decisions made by the Court of Criminal Appeal were of no legal effect. The court did not, however, quash Rowley's conviction or order a re-sentencing hearing. Instead, it left it to the relevant state authorities to establish a new Court of Criminal Appeal in accordance with the constitutional requirements. The court's decision highlighted the importance of ensuring that the institutions responsible for exercising judicial power comply with the constitutional provisions designed to protect the independence and integrity of the federal judiciary.

Orders