Court of Appeal (Qld)|2002-12-10|Before: McMurdo P, Davies and Jerrard JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Davies and Jerrard JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING
OF INFORMATION, PRESENTMENT OR INDICTMENT –QUEENSLAND
- where appellant
convicted of offences under the Criminal Code (Qld) – where
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILINGOF INFORMATION, PRESENTMENT OR INDICTMENT –QUEENSLAND- where appellantconvicted of offences under the Criminal Code (Qld) – whereindictment presented and prosecution conducted by a barrister in privatepractice holding commission to prosecuteoffences in Queensland pursuant to ss560(2) and 561(2) Criminal Code – where barrister instructed by theCommonwealth Director of Public Prosecutions (“CDPP”) – whereCDPP fundedprosecution – where Queensland Director of Public Prosecutions("QDPP") consented to the CDPP presenting the indictment –whether CDPPhad lawful authority to indict and prosecute the appellant in right of theCommonwealth or in right of the State ofQueenslandCONSTITUTIONAL LAW– OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION –MISCELLANEOUS POWERS OF THECOMMONWEALTH – MATTERS REFERRED BY STATES -where CDPP had consent of Commonwealth A-G under s 6(1)(m) DPP Act (Cth)
to prosecute offences on indictment – where QDPP made an informed consent
to CDPP carrying on prosecution – whether
receipt of prosecutory authority
under s 6(1)(m) supported by a Constitutional head of power – where
prosecution of indicted
offences related to matters within s 51(xx)
ConstitutionCRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – PROSECUTION – OTHER MATTERS - where administrative
arrangement
between QDPP and CDPP contemplating the prosecution of Queensland
offences by CDPP –– whether QDPP can executively refer
prosecutory
power
Acts Interpretation Act 1901 (Cth), s 15AConstitution
1901 (Cth), s 51(xx), s 51(xxxix), s 61Corporations Law of Queensland
(repealed), s 1000(1)(a), s 1000(1)(b), s 1311Criminal Code 1899
(Qld), s 408C, s 427(1), s 560(2)Director of Public Prosecutions Act
1983 (Cth), s 6, s 9(6), s 15, s 17Director of Public Prosecutions
Act 1984 (Qld), s 10(3), s 11(1)(a)
Director of Public Prosecutions v Fukusato [2002] QCA 29
CA No 6456
of 2001, 8 February 2002, consideredPidoto v State of Victoria [1943] HCA 37
(1943)
68 CLR 87, referred toR v Foley [2002] QCA 522
CA No 4007 of 2002,
29 November 2002, referred toR v Holden [2001] VSCA 63
(2001) 120 A Crim R 240,
referred toR v Hughes (2000) 202 CLR 535, consideredR v
Webb [1960] Qd R 443, referred toVasta v Clare [2002] QSC 259
SC No 6969 of 2002, 30 August 2002, referred to
Judgment (19 paragraphs)
[1]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT -QUEENSLAND - where appellant convicted of offences under the Criminal Code (Qld) - where indictment presented and prosecution conducted by a barrister in private practice holding commission to prosecute offences in Queensland pursuant to ss 560(2) and 561(2) Criminal Code - where barrister instructed by the Commonwealth Director of Public Prosecutions ("CDPP") - where CDPP funded prosecution - where Queensland Director of Public Prosecutions ("QDPP") consented to the CDPP presenting the indictment - whether CDPP had lawful authority to indict and prosecute the appellant in right of the Commonwealth or in right of the State of Queensland
[2]
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - MISCELLANEOUS POWERS OF THE
[3]
COMMONWEALTH - MATTERS REFERRED BY STATES - where CDPP had consent of Commonwealth A-G under s 6(1)(m)DPP Act (Cth) to prosecute offences on indictment - where QDPP made an informed consent to CDPP carrying on prosecution - whether receipt of prosecutory authority under s 6(1)(m) supported by a Constitutional head of power - where prosecution of indicted offences related to matters within s 51(xx) Constitution
[4]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - OTHER MATTERS - where administrative arrangement between QDPP and CDPP contemplating the prosecution of Queensland offences by CDPP -- whether QDPP can executively refer prosecutory power