ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal Law-Appeal-Indictable offence against law of Commonwealth-Appeal
against sentence by Commonwealth Attorney-General-Appeal to State Court of Criminal Appeal-Jurisdiction-The Constitution (63 &64 Vict. c. 12), secs. 51 (XXXIX.), 77 (III).Judiciary Act 1903-1932 (No. 6 of 1903-No. 60 of 1932), MELBOURNE, secs. 68,* 77-Criminal Appeal Act 1912-1924 (N.S.W.) (No. 16 of 1912-No. 10 of 1924), sec. 5D.*.
A prisoner having been sentenced by a New South Wales Court to imprison- ment for an indictable offence against a law of the Commonwealth, the Attorney- General of the Commonwealth appealed to the Court of Criminal Appeal of New South Wales against the sentence on the ground of its inadequacy. That Court increased the sentence. On an application by the prisoner for special leave to appeal from this decision to the High Court, Gavan Duffy C.J. and Evatt and McTiernan JJ. were of opinion that sec. 68 of the Judiciary Act 1903-1932 did not operate upon sec. 5D of the Criminal Appeal Act 1912-1924 (N.S.W.) so as to enable the Attorney-General of the Commonwealth to appeal to the Court of Criminal Appeal; Rich, Starke and Dixon JJ. were of opinion that it did so operate. The Court being equally divided, leave to appeal was
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
* The provisions of these sections are set out at p. 536, ante.
Subsequently to the decision of the High Court in Williams V. The King [No. 1] 1, in the report of which the prior facts sufficiently appear, the Attorney-General for the Commonwealth appealed to the Court of Criminal Appeal of New South Wales [No. 2].
against the sentence imposed on the prisoner upon the ground that it was inadequate. That Court increased the sentence to four years with hard labour to date from 24th February 1933.
The applicant now applied for special leave to appeal from this decision to the High Court on the grounds, substantially, that (a) the Commonwealth Attorney-General had no right of appeal, (b) the Court of Criminal Appeal had no jurisdiction to deal with a sentence originally imposed by a trial Judge in respect to a Commonwealth offence, (c) the conferring of a right to appeal by sec. 5D of the Criminal Appeal Act 1912-1924 (N.S.W.) on a named officer, the State Attorney-General, could not, by analogy, be held to confer a right of appeal on some Commonwealth officer, (d) the right to appeal was conferred only upon persons convicted of offences and not on the Crown, (e) an appeal as to the sentence was not an appeal from a trial and conviction, (f) the State Parliament could not be given authority by the Commonwealth Parliament to erect a tribunal or remove a tribunal or substitute a new tribunal to deal with a sentence imposed on a person convicted of an offence against the Commonwealth, and (g) the
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.
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AGLC
Williams v The King [No 2] [1934] HCA 19
Case
[1934] HCA 19
Decision Date
CaseChat Overview and Summary
The case involved an application for special leave to appeal to the High Court of Australia by a prisoner, Williams, against a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had increased a sentence imposed on Williams for an indictable offence against Commonwealth law, following an appeal by the Attorney-General of the Commonwealth against the original sentence's inadequacy.
The central legal issue before the High Court was whether section 68 of the Judiciary Act 1903-1932, as amended, conferred jurisdiction upon the New South Wales Court of Criminal Appeal to hear an appeal by the Commonwealth Attorney-General against a sentence imposed for a Commonwealth offence. This involved determining whether the amended section operated to incorporate the right of appeal against sentence granted to the State Attorney-General under section 5D of the New South Wales Criminal Appeal Act 1912-1924.
The High Court was equally divided on the interpretation of section 68 of the Judiciary Act. Gavan Duffy C.J. and Evatt and McTiernan JJ. held that the section did not grant the Commonwealth Attorney-General the right to appeal against a sentence, reasoning that the "like jurisdiction" conferred by section 68 related to the power of the court to hear an appeal once instituted, not the right to institute one, and that an appeal against sentence was distinct from an appeal arising out of a conviction. Conversely, Rich, Starke, and Dixon JJ. were of the opinion that the amended section did operate to allow such an appeal, interpreting the provision as intending to assimilate criminal procedure, including appellate remedies, for Commonwealth and State offences, and that an appeal against sentence fell within the scope of "appeals arising out of any such trial or conviction or out of any proceedings connected therewith."
As the High Court was equally divided, the application for special leave to appeal was dismissed.