Bui v Director of Public Prosecutions (Cth) [2012] HCA 1

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, KIEFEL AND BELL JJ

KIEU THI BUI APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE

COMMONWEALTH OF AUSTRALIA RESPONDENT

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1

9 February 2012

M127/2011

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

P F Tehan QC with G F Meredith for the appellant (instructed by Greg Thomas, Barrister & Solicitor)

W J Abraham QC with D D Gurvich for the respondent (instructed by Commonwealth Director of Public Prosecutions)

S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

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

CATCHWORDS

Bui v Director of Public Prosecutions (Cth)

Criminal law – Appeal – Appeal against sentence – Prosecution appeal – Double jeopardy – Appellant pleaded guilty to importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of Criminal Code (Cth) – Appellant sentenced to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years – Respondent appealed against sentence – Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) ("Victorian provisions") provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence – Whether ss 68(1) or 79(1) of Judiciary Act 1903 (Cth) ("Judiciary Act") rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent – Whether a "common law principle against double jeopardy" picked up by s 80 of Judiciary Act – Whether ss 16A(1)-(2) of Crimes Act 1914 (Cth) required or permitted court determining sentence for federal offence to take into account double jeopardy.