Achurch v The Queen [No 2]

The High Court has unanimously dismissed an appeal against the decision of the New South Wales Court of Criminal Appeal to refuse an application to re-consider a 2011 ruling of that Court to lift a drug trafficking sentence to be in line with NSW’s ‘standard’ non-parole period laws. The application was argued on the basis that the High Court had later overruled the key NSW precedent on the non-parole period laws, however the NSWCCA held that the decision neither permitted a reopening of the earlier case, nor would it have led to a different outcome.

Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to reopen the case and amend a penalty where the current penalty is ‘contrary to law’. The High Court construed that section to apply only to penalties that were unlawful (for example, in excess of a maximum penalty for the offence), and does not extend to any penalty that was imposed under the influence of an alleged an error of law or fact. Correcting those kinds of errors are a matter for criminal appeals, not the re-opening of a case. The Court held that the sentences imposed by the NSWCCA were not ‘contrary to law’ and that the NSWCCA did not err in its application of s 43.

High Court Judgment [2014] HCA 10 2 April 2014
Result Appeal dismissed
High Court Documents Achurch
Full Court Hearing [2014] HCATrans 15  13 February 2014
Special Leave Hearing [2013] HCATrans 278 8 November 2013
Appeal from NSWCCA [2013] NSWCCA 117 22 May 2013
Initial Appeal, NSWCCA [2011] NSWCCA 186 16 August 2011
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.