Neal v The Queen [1982] HCA 55

High Court of Australia Gibbs C.J. Murphy, Wilson and Brennan JJ. Neal v The Queen [1982] HCA 55

ORDER Grant application for special leave to appeal. Appeal allowed. Order of the Court of Criminal Appeal set aside and in lieu thereof order that the application for special leave to appeal to that Court be refused.

The following written reasons for judgment were published:—

June 25 Gibbs C.J.

The Court grants special leave to appeal, allows the appeal, and sets aside the order made by the Court of Criminal Appeal. By majority the Court orders that the application for leave to appeal to the Court of Criminal Appeal be refused. The Court will give its reasons later.

Sept. 24 Gibbs C.J.

This application for special leave to appeal was brought from a decision of the Court of Criminal Appeal of the Supreme Court of Queensland.

The applicant was convicted by a stipendiary magistrate at Cairns on a charge of unlawful assault, and sentenced to imprisonment for two months with hard labour. He made application for leave to appeal to the Court of Criminal Appeal against the sentence on the ground that it was manifestly excessive. When the application for leave came on before the Court of Criminal Appeal the applicant was represented by counsel and was not present in person. During the course of argument, counsel were asked by the Court whether it had power to increase the sentence and counsel for the applicant replied that he was unsure that it did. After further discussion the Court referred to s. 668E(3) of the Criminal Code Q., saying that it did have such power and intended to consider using it. The Crown had not appealed against the sentence and counsel for the Crown did not, during the course of argument before the Court of Criminal Appeal, submit that the sentence was inadequate. At the conclusion of the hearing the Court of Criminal Appeal proceeded to give judgment. Andrews S.P.J., who presided, after referring to the power given by s. 668E(3), and to the facts of the case, said that the sentence was shown to be manifestly inadequate, and that he would quash it and order the imposition of a term of imprisonment with hard labour for six months. Sheahan J. agreed. Connolly J., who also agreed, said that assuming that it was proper for the offence to be dealt with summarily, it called for the upper limit of sentence which might properly be imposed on summary trial for the offence. The order of the Court was then pronounced as follows: