Cheng v The Queen [2000] HCA 53

Cheng v The Queen [2000] HCA 53

The High Court (majority: Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Callinan JJ) held that ss 233B(1)(d) and 235(2) of the Customs Act 1901 (Cth), as interpreted in Kingswell v The Queen, create a single offence with a scale of penalties dependent on facts found by the judge. The Court refused to reopen Kingswell,...

Source-derived case information.

Parties
Applicant: Yu Shing Cheng; Applicant: Gang Cheng; Applicant: Bach An Chan; Respondent: The Queen; Intervener: Attorney-General of the Commonwealth
Jurisdiction
Australia
Judgment Date
05 October 2000
Procedural Posture
Applications for Special Leave to Appeal (heard as Appeals) / Application for Special Leave to Appeal to the High Court From the Supreme Court of South Australia (court of Criminal Appeal)
Outcome
Applications for special leave to appeal dismissed
Legal Topics
Trial by Jury, Section 80 of the Constitution, Customs Offences, Sentencing, Elements of Offence, Aggravating Circumstances, Indictable Offences
Constitutional Law Criminal Law Trial by Jury Section 80 of the Constitution Customs Offences Sentencing Elements of Offence Aggravating Circumstances +1 more

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Parties

Yu Shing Cheng

Applicant

Gang Cheng

Applicant

Bach An Chan

Applicant

The Queen

Respondent

Attorney-General of the Commonwealth

Intervener

Procedural Posture

Applications for Special Leave to Appeal (heard as Appeals) / Application for Special Leave to Appeal to the High Court From the Supreme Court of South Australia (court of Criminal Appeal)

Legal Issues

  1. 1 Whether ss 233B(1)(d) and 235(2) of the Customs Act 1901 (Cth) are invalid as contrary to s 80 of the Constitution
  2. 2 Whether the penalty provisions (circumstances of aggravation) create separate offences requiring jury determination
  3. 3 Whether prior authority (Kingswell v The Queen) should be reopened or applied

Ratio Decidendi

The High Court (majority: Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Callinan JJ) held that ss 233B(1)(d) and 235(2) of the Customs Act 1901 (Cth), as interpreted in Kingswell v The Queen, create a single offence with a scale of penalties dependent on facts found by the judge. The Court refused to reopen Kingswell, affirmed that Parliament may constitutionally provide that facts relevant only to penalty are not elements of the offence, and held that where applicants plead guilty and do not dispute aggravating circumstances, there is no issue requiring a jury. The constitutional challenge was rejected, and the applications were dismissed.

Court Disposition

Applications for special leave to appeal dismissed

Orders

  • Applications dismissed
  • No order as to costs stated