Neal v The Queen [1982] HCA 55

Neal v The Queen [1982] HCA 55

The Court of Criminal Appeal erred in increasing the applicant's sentence under s. 668E(3) because the power to increase sentence was exercisable only on an appeal after leave had been distinctly and formally granted, and the procedure used deprived the applicant of a real opportunity to exercise rights such as abandoning the appeal or seeking to be present. Special leave was therefore granted, the appeal allowed, and the order increasing sentence set aside. By majority, because remitter would serve no useful purpose and no other error warranting High Court interference with the original sentence was established, the application for leave to appeal to the Court of Criminal Appeal was...

Jurisdiction
Australia
Procedural Posture
Criminal Appeal Against Sentence; Application for Special Leave to Appeal / High Court of Australia Special Leave Application and Appeal From the Court of Criminal Appeal of the Supreme Court of Queensland
Outcome
Special leave to appeal granted; appeal allowed; order of the Court of Criminal Appeal set aside; by majority, application for leave to appeal to the Court of Criminal Appeal refused.
Legal Topics
['special Leave to Appeal' 'appeal Against Sentence' 'increase of Sentence on Appeal' 'natural Justice' 'leave to Appeal' 'aboriginal Reserve Conditions as Sentencing Consideration']
['criminal Law' 'criminal Procedure' 'sentencing'] ['special Leave to Appeal' 'appeal Against Sentence' 'increase of Sentence on Appeal' 'natural Justice' 'leave to Appeal' 'aboriginal Reserve Conditions as Sentencing Consideration']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence; Application for Special Leave to Appeal / High Court of Australia Special Leave Application and Appeal From the Court of Criminal Appeal of the Supreme Court of Queensland

Legal Issues

  1. 1 ["Whether the Court of Criminal Appeal could increase the applicant's sentence under s. 668E(3) of the Criminal Code Q. without first distinctly and formally granting leave to appeal and giving the applicant an opportunity to exercise rights including abandonment of the appeal and presence at the appeal." "Whether the order increasing the sentence from two months' imprisonment with hard labour to six months' imprisonment with hard labour should be set aside." 'Whether the High Court should remit the matter to the Court of Criminal Appeal, substitute its own sentence, or order that the application for leave to appeal to that Court be refused.' "Whether the applicant's circumstances as an Aboriginal person living on a reserve and related emotional stress or political grievances were relevant mitigating considerations in sentence."]

Ratio Decidendi

The Court of Criminal Appeal erred in increasing the applicant's sentence under s. 668E(3) because the power to increase sentence was exercisable only on an appeal after leave had been distinctly and formally granted, and the procedure used deprived the applicant of a real opportunity to exercise rights such as abandoning the appeal or seeking to be present. Special leave was therefore granted, the appeal allowed, and the order increasing sentence set aside. By majority, because remitter would serve no useful purpose and no other error warranting High Court interference with the original sentence was established, the application for leave to appeal to the Court of Criminal Appeal was...

Court Disposition

Special leave to appeal granted; appeal allowed; order of the Court of Criminal Appeal set aside; by majority, application for leave to appeal to the Court of Criminal Appeal refused.

Orders

  • ['Grant application for special leave to appeal.' 'Appeal allowed.' 'Order of the Court of Criminal Appeal set aside.' 'In lieu thereof order that the application for special leave to appeal to that Court be refused.']