Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

These three cases, heard together, concerned challenges to the validity of certain provisions of the *Crimes Act 1900* (NSW) and the *Criminal Procedure Act 1986* (NSW) that permitted the prosecution to appeal against a sentence imposed by a judge. The applicants, Tajjour, Hawthorne, and Forster, had each pleaded guilty to criminal offences and received sentences that the Director of Public Prosecutions (DPP) subsequently appealed under the relevant provisions. The core of the dispute was whether these appeal provisions were constitutionally invalid, specifically by infringing the separation of judicial power under Chapter III of the Australian Constitution. The cases were heard by Kiefel J of the High Court of Australia.

The central legal issue before the High Court was whether the statutory provisions allowing the DPP to appeal against a sentence imposed by a judge constituted an impermissible intrusion by the executive or legislature into the judicial function. Specifically, the court had to determine if these provisions conferred a power on the DPP that, when exercised, would involve a court in exercising a non-judicial power, thereby contravening the principle that the judicial power of the Commonwealth can only be vested in courts created by or under Chapter III of the Constitution. This involved an examination of the nature of sentencing and the role of the DPP in the appellate process.

Kiefel J reasoned that the power to impose a sentence is an exercise of judicial power. The provisions in question allowed the DPP to seek a review of a sentence, which, if successful, would result in a different sentence being imposed. This process, however, was found not to involve the conferral of non-judicial power on the DPP or the courts. The appeal mechanism was seen as a part of the judicial process, allowing for the correction of sentences that were demonstrably outside the proper exercise of the sentencing judge's discretion. The High Court had previously considered similar provisions in *Waind v The Queen* and *R v Kelly*, and Kiefel J applied the principles established in those cases, finding that the appeal provisions did not offend Chapter III of the Constitution.

The applications for leave to appeal were dismissed.