On an appeal by the DPP under s 21E of the Crimes Act 1914 (Cth) against the adequacy of a reduced sentence, the court hearing the appeal has jurisdiction to determine for itself whether the offender's failure to cooperate was 'without reasonable excuse' and is not bound by the DPP's opinion on that question. The question of reasonable excuse is a jurisdictional fact that may be raised by way of collateral challenge. The word 'failed' in s 21E(3) imports an element of fault, namely an omission without reasonable excuse.
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