The Queen v Gee [2003] HCA 12

The Queen v Gee [2003] HCA 12

Section 68(2) of the Judiciary Act 1903 (Cth), read with the broad definition of 'appeal' in s 2, invests the Full Court of the Supreme Court of South Australia with the jurisdiction to hear and determine a question of law reserved by the District Court under s 350 of the Criminal Law Consolidation Act 1935 (SA), when the proceedings concern the trial of persons charged with Commonwealth offences. The State procedure is picked up by s 68(2) unless a contrary intention is expressed in federal law or the Constitution, and the existence of ss 72-77 of the Judiciary Act does not operate to exclude the application of the State's case stated procedure. This accords with the policy that State...

Parties
Appellant: The Queen; First Respondent: Robert Gordon Pollybank Gee; Second Respondent: Hans Thaller; Intervener: Attorney-General for the State of South Australia
Jurisdiction
Australia
Judgment Date
13 March 2003
Procedural Posture
Criminal Appeal / High Court Appeal From Order of Full Court of the Supreme Court of South Australia
Outcome
Appeal allowed
Legal Topics
Federal Jurisdiction of State Courts, Case Stated / Appeals Procedure in Criminal Law, Commonwealth Director of Public Prosecutions' Appellate Rights, Constitution S 80 Trial by Jury, Jurisdiction Conferred by Judiciary Act 1903 (cth)
Criminal Law Federal Jurisdiction Constitutional Law Federal Jurisdiction of State Courts Case Stated / Appeals Procedure in Criminal Law Commonwealth Director of Public Prosecutions' Appellate Rights Constitution S 80 Trial by Jury Jurisdiction Conferred by Judiciary Act 1903 (cth)

Case Brief

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Parties

The Queen

Appellant

Robert Gordon Pollybank Gee

First Respondent

Hans Thaller

Second Respondent

Attorney-General for the State of South Australia

Intervener

Procedural Posture

Criminal Appeal / High Court Appeal From Order of Full Court of the Supreme Court of South Australia

Legal Issues

  1. 1 Whether s 68(2) of the Judiciary Act 1903 (Cth) confers jurisdiction on the Full Court of the Supreme Court of South Australia to hear and determine a question of law reserved by the District Court under s 350 of the Criminal Law Consolidation Act 1935 (SA), during a trial of persons charged with Commonwealth offences.
  2. 2 Whether the case stated procedure under s 350 constitutes an 'appeal' for the purposes of s 68(2) Judiciary Act and s 9(7) Director of Public Prosecutions Act 1983 (Cth).
  3. 3 Whether the procedure involved amounted to the giving of an advisory opinion not permitted in federal jurisdiction.

Ratio Decidendi

Section 68(2) of the Judiciary Act 1903 (Cth), read with the broad definition of 'appeal' in s 2, invests the Full Court of the Supreme Court of South Australia with the jurisdiction to hear and determine a question of law reserved by the District Court under s 350 of the Criminal Law Consolidation Act 1935 (SA), when the proceedings concern the trial of persons charged with Commonwealth offences. The State procedure is picked up by s 68(2) unless a contrary intention is expressed in federal law or the Constitution, and the existence of ss 72-77 of the Judiciary Act does not operate to exclude the application of the State's case stated procedure. This accords with the policy that State...

Court Disposition

Appeal allowed

Orders

  • Order of the Full Court of the Supreme Court of South Australia made on 14 March 2001 set aside.
  • Proceeding remitted to the Full Court of the Supreme Court of South Australia for further hearing and determination in accordance with the decision of the High Court.