Wallam v The State of Western Australia

[2009] HCATrans 171

[2009] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P5 of 2009

B e t w e e n -

BRUCE TIMOTHY JAMES WALLAM

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 31 JULY 2009, AT 12.20 PM

Copyright in the High Court of Australia

MR P.B. CASSIDY:   May it please your Honours, I appear for the applicant.  (instructed by Thames Legal)

MR R.E. COCK, QC:   May it please the Court, I appear with my learned friend, MR J. MacTAGGART, for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

MR CASSIDY:   May I apologise to the Court for the absence of Mr Watters.  He is engaged as counsel in a trial which has run beyond its estimated length.

FRENCH CJ:   Thank you, Mr Cassidy.  Yes, please proceed.

MR CASSIDY:   Your Honour, the ground of appeal is on the court’s refusal to allow the application to reconsider or reopen its order under section 37 of the Sentencing Act.  I rely on the written submissions made and also the judgment of Justice McLure which would have allowed the application and re‑sentenced the applicant in accordance with the decisions of Yates and Richards which were delivered shortly after the original decision in Wallam.

FRENCH CJ:   Can I make sure I understand the sequence of events, Mr Cassidy.  I think Justice Hasluck had sentenced Mr Wallam originally.  There was a State appeal against that sentence which led to it being increased by the Court of Appeal.  Is that correct?

MR CASSIDY:  That is correct.

FRENCH CJ:   Yes.  Then subsequently a special Bench of five members in another matter held that an amendment to the law which might have benefited Mr Wallam was retrospective in effect, contrary to the view taken in the appeal by the State.

MR CASSIDY:   That is correct, your Honour, yes.

FRENCH CJ:   That is the double jeopardy principle amendment.

MR CASSIDY:   The double jeopardy principle, yes.

FRENCH CJ:   It is that outcome which led to the application to reopen.

MR CASSIDY:   That is correct, your Honour, yes.

FRENCH CJ:   Am I also correct in saying that the amendment held to be retrospective by the special Bench, if I can call it that, or the Bench of five, has now been repealed?

MR CASSIDY:   That is correct, your Honour, yes.

FRENCH CJ:   So there is no issue of general public importance any more, is there, insofar as the statute law is concerned?

MR CASSIDY:   I would submit the general importance relates to the construction given by the majority of the Court of Appeal in its decision that section 37 cannot apply to the Court of Appeal when it sentences or re‑sentences an offender on an appeal against sentence.  That decision of the majority of the court would continue to apply to other matters despite the change in the law specific to Mr Wallam’s case.

KIEFEL J:   Do you agree with the respondent’s contention that the applicant would now fall to be sentenced in accordance with clause 3(a) of the transitional provisions, in any event?

MR CASSIDY:   Yes, that is accepted, your Honour.

KIEFEL J:   What would be the result when that provision was applied?  Would there be any practical difference in the approach the court could take?

MR CASSIDY:   The court may decide not to change the sentence which was imposed, yes.  However, that would be open to the court to consider if it was brought back before it.

FRENCH CJ:   Yes.  Anything further?

MR CASSIDY:   The only other point I would wish to add, your Honours, is that the Court should find that the minority judgment of Justice McLure was correct in her Honour’s construction of section 37 and the application of the definitions of the court as to include the Court of Appeal and the term “prosecutor” to refer to a prosecutor as a party to an appeal against sentence.  Those are the submissions, your Honour, if it pleases the Court.

FRENCH CJ:   Thank you.  We will not need to call on you, Mr Cock. 

This application concerns the dismissal by the Court of Appeal of Western Australia of an application to reopen and reconsider orders made in the previous appeal in which the applicant’s sentence had been increased.  Following that decision, a special bench of five members of the Court of Appeal in another matter held that an amendment to the law which might have benefited the applicant was retrospective in effect.  This was contrary to the view of the Court of Appeal which had increased the applicant’s sentence on the earlier appeal by the State.  Nevertheless, the Court of Appeal declined to reopen.  The applicant seeks special leave to appeal against that decision. 

We are not satisfied that even if the appeal were allowed the result would be different.  Furthermore, the provisions of the law found to have been retrospective in its operation by the special five‑member Court of Appeal have now been repealed by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008. Although the question of the power of the Court of Appeal to reopen its decision may be a question of importance, this is not a suitable vehicle to explore that issue.

Special leave to appeal will be refused. 

The Court will now adjourn until 2.00 pm this afternoon.

AT 12.27 PM THE MATTER WAS CONCLUDED