Williams v The King [No 2]

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.