Cecil v Director of Public Prosecutions (Nauru) [2017] HCA 46

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER AND KEANE JJ

Matter No S117/2017

JOB CECIL APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU) RESPONDENT

Matter No S118/2017

JOSH KEPAE APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU) RESPONDENT

Matter No S119/2017

JOHN JEREMIAH APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS (NAURU) RESPONDENT

Cecil v Director of Public Prosecutions (Nauru) Kepae v Director of Public Prosecutions (Nauru) Jeremiah v Director of Public Prosecutions (Nauru) [2017] HCA 46 20 October 2017 S117/2017, S118/2017 & S119/2017

ORDER

In each matter:

1. Leave to appeal be granted.

2. The appeal be heard instanter.

3. The appeal be allowed and the judgment of the Supreme Court of Nauru reversed.

4. The appeals to the Supreme Court of Nauru by the appellant and the respondent be remitted to the Supreme Court of Nauru, differently constituted, for hearing according to law.

5. The respondent pay the appellant's costs in this Court.

On appeal from the Supreme Court of Nauru

Representation

B W Walker SC with M G Higgins, S G Lawrence, F K Graham and N D Funnell for the applicants (instructed by Hearn Legal)

M J Copley QC with G J D del Villar for the respondent (instructed by Ashurst Australia)

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

CATCHWORDS

Cecil v Director of Public Prosecutions (Nauru) Kepae v Director of Public Prosecutions (Nauru) Jeremiah v Director of Public Prosecutions (Nauru)

Criminal law – Appeal – Supreme Court of Nauru – Appeals Act 1972 (Nr) – Where Act entitles Director of Public Prosecutions to bring appeal against sentence – Where Act gives Supreme Court discretion on appeal to substitute own sentence for sentence of District Court – Where Supreme Court substituted own sentences for sentences of District Court without identifying error by District Court – Where sentences substituted by Supreme Court significantly higher than sentences passed by District Court – Where Supreme Court wrongly concluded it was not required to find error affecting District Court's exercise of sentencing discretion – Where possible to infer Supreme Court considered it would give significantly higher sentences if sentencing afresh – Whether discretion to substitute sentence enlivened – Whether possible to infer Supreme Court considered District Court's sentences manifestly inadequate.