Peel v The Queen [1971] HCA 59

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. Peel v The Queen [1971] HCA 59

ORDER Special leave to appeal refused.

Cur. adv. vult.

The following written judgments were then delivered:—

Nov. 23 Barwick C.J.

On the question that was argued before the whole Court namely, the question whether an application by the Attorney-General to the Court of Criminal Appeal to vary the sentence was competent, I publish my reasons. In my opinion the application by the Attorney-General was incompetent. McTiernan J. is of the same opinion and I publish his reasons.

Gibbs J. is of opinion that the appeal by the Commonwealth Attorney-General was competent. I publish his reasons.

That means that by a majority the Court is of opinion that that application by the Commonwealth Attorney-General to the Court of Criminal Appeal was competent.

On the question of whether special leave to appeal should be granted I am of opinion that it should not be granted although it will be understood that my own opinion on the question of competence would have led to my granting special leave and allowing the appeal. However following the majority of the Court the application for special leave must be dealt with and in my opinion special leave should be refused.

In the result the order of the Court is that special leave to appeal is refused. That means that the orders of the Court of Criminal Appeal stand.

Menzies J.

In my opinion the application is competent. I would refuse special leave.

Windeyer J.

I agree.

Owen J.

I agree.

Walsh J.

I adopt what the Chief Justice has said in relation to the grant of special leave, my position being the same as his in relation to the first matter that was argued.

Barwick C.J.

The applicant for special leave to appeal pleaded guilty before a court of quarter sessions in Sydney, New South Wales, of an offence against the Customs Act 1901-1968 Cth. The learned chairman of quarter sessions imposed upon the applicant a fine of $400. The Attorney-General of the Commonwealth applied to the Court of Criminal Appeal of New South Wales to increase the penalty thus imposed. For the applicant it was submitted to that Court that the Attorney-General of the Commonwealth had no right to make such an application and that the Court of Criminal Appeal had no jurisdiction to entertain it. However, relying on a combination of s. 68 (2) of the Judiciary Act 1903-1959 Cth and s. 5D of the Criminal Appeal Act, 1912 N.S.W. the Court of Criminal Appeal refused to accept the submission (1). It entertained the Attorney-General's application and substituted a sentence of imprisonment for a period of three years for the fine imposed by the court of quarter sessions.