Criminal Procedure (Vict)—Supreme Court—Stay of prosecution Wether appeal from order to Full Court—Supreme Court Act 1986 (Vict), ss. 10(2), 14(3)—Constitution Act 1975 (Vict), s. 85(3).

Headnote

Section 10(2) of the Supreme Court Act 1986 (Vict) provided: "Unless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determination of the Court constituted by a Judge." Section 14(3) provided: "Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Court constituted by a Judge made on or. in relation to the trial or proposed trial of a person on indictment or presentment." Part VI of the Crimes Act 1958 (Vict) provided for appeals to the Full Court by persons convicted on indictment or presentment. Section 85(3) of the Constitution Act 1975 (Vict) provided: "The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986." Section 85 (3) was introduced into the Constitution Act by s. 132 of the Supreme Court Act 1986.

Held, by Mason CJ, Dawson, Gaudron and McHugh JJ, Deane J dissenting, (1) that s. 14(3) of the Supreme Court Act was a bar to an appeal by the Crown against an order permanently staying a prosecution.

Boehm v. Director of Public Prosecutions, (1990) VR 494, at p. 502, overruled.

Reg. v. Kean and Mills, (1985) VR 255, considered.

(2) That to the extent that there was any apparent conflict between s. 14(3) of the Supreme Court Act, which dealt specifically with appeals, and s. 85(3) of the Constitution Act, which dealt generally with jurisdiction, the former prevailed.

Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of Taxation (1948), 77 CLR 1, at p. 29, and Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation (1980), 44 FLR 455, at pp. 468-469; 29 ALR 333, at p. 347, applied.

Decision of the Supreme Court of Victoria (Appeal Division): Reg. v. Smith, (1995) 1 VR 10, reversed.

Hearing

1994, BRISBANE, June 28, 29; CANBERRA, November 22
#DATE 22:11:1994

APPEAL from the Supreme Court of Victoria

Donald William Nash Smith, Christopher Ferguson, Jeffrey Forti, Rodney Thomas Grimshaw and William John Coburn were presented for trial in the Supreme Court of Victoria upon charges of murder and various related charges arising out of the death of Graeme Russell Jensen. After arraignment an application was made to Vincent J on behalf of each accused for an order permanently staying the proceedings against him on the ground that the case which the prosecution intended to present could not succeed and that…

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 Smith v The Queen

Details

AGLC: Smith v The Queen [1994] HCA 60
Case: [1994] HCA 60
Decision Date: 22 November 1994

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Smith against an order of the Full Court of the Supreme Court of Victoria. The dispute concerned the Supreme Court's power to grant a permanent stay of criminal proceedings.

The central legal issue before the High Court was whether the Supreme Court of Victoria had the power to grant a permanent stay of a prosecution, and if so, under what circumstances. This involved an interpretation of the Supreme Court Act 1986 (Vic) and the Constitution Act 1975 (Vic).

The High Court held that the Supreme Court of Victoria did possess the power to grant a permanent stay of proceedings in exceptional circumstances, where it was necessary to prevent an abuse of process or a miscarriage of justice. The Court reasoned that this power was inherent in the court's jurisdiction to supervise its own process and ensure fairness. The appeal was dismissed.

Orders