Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

STUART ANTHONY SILBERT (as Executor of the

Estate of Stephen Retteghy deceased) APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR WESTERN AUSTRALIA RESPONDENT

Silbert v Director of Public Prosecutions for Western Australia

[2004] HCA 9

Date of Order: 9 December 2003

Date of Publication of Reasons: 3 March 2004

P16/2002

ORDER

Application for special leave to appeal dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

M J Buss QC with M M N Byrne for the applicant (instructed by Talbot & Olivier)

R J Meadows QC, Solicitor-General for the State of Western Australia, with C J Thatcher for the respondent and intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

H C Burmester QC, Acting Solicitor-General of the Commonwealth with C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland, with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law Division, Department of Justice)

M G Sexton SC, Solicitor-General for the State of New South Wales, with K M Guilfoyle intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Silbert v Director of Public Prosecutions for Western Australia

Constitutional law – Judicial power of the Commonwealth – Vesting in State courts – Power of State Parliament to confer functions incompatible with exercise by State court of judicial power of the Commonwealth – State Act deems person who dies before a charge is finally determined to be taken to have been convicted of a "serious offence" – Whether provision of State Act amounts to parliamentary determination of guilt and imposition of conviction – Whether provision of State Act precludes a court from making any or any sufficient inquiry into whether the deceased committed the offence – Whether State law invokes the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.