Jamieson v The Queen [1993] HCA 48

High Court of Australia Deane, Dawson, Toohey, Gaudron and McHugh JJ. Jamieson v The Queen [1993] HCA 48

ORDER Jamieson v The Queen; Brugmans v The Queen Appeal allowed. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales and in lieu thereof order that the appeal to that Court be allowed and the indictment quashed.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 8 Deane and Dawson JJ.

The facts of these appeals fall within a small compass. They are set out, together with the relevant statutory provisions, in the joint judgment of Toohey and McHugh JJ. and the judgment of Gaudron J. We shall refrain from unnecessary repetition of them.

The argument on the appeal left us with the impression that the efforts of the parties to isolate and define the common question involved in the two cases may have resulted in a situation where the act of serving the statement of claim, which the Crown exclusively identifies as the actus reus of the alleged offence, may have been unrealistically detached from the context of relevant associated conduct on the part of one or both of the appellants. In particular, it emerged in the course of argument that the civil action brought by Ms. Jamieson was settled by the Government Insurance Office ("the G.I.O.") before the institution of the criminal proceedings. Nonetheless, in a context where the Crown has not sought to resile from the isolation of the service of the statement of claim from any other dealings which the particular appellant may have had with the G.I.O. and where the courts below have dealt with the cases on the basis on which the parties have been content to argue them, it would be inappropriate for this Court to approach the appeals otherwise than on the same basis.