Well that was unexpected - Bui v DPP (Cth) [2012] HCA 1

The High Court is off to a confounding start to the year with its release of the decision today in Bui v DPP (Cth). This appeal concerned the application of the statutory provisions repealing double jeopardy as a sentencing consideration in appeals in relation to Commonwealth offences. In broad and imprecise terms, the general rule is that ss68, 70 79 and 80 of the Judiciary Act 1903 operate to pick up state procedural law for Commonwealth proceedings, to the extent that it is not inconsistent with any law of the Commonwealth. The provisions also pick up any State-based modifications of the common law.

Special leave update - September 2011

Before wading through the 273 pages of Momcilovic, it's worth having a brief look at the latest additions to the High Court's workload. Back on the 2nd of September, the High Court granted special leave in four criminal cases - 3 from Victoria and 1 from New South Wales.

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.

Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.