Jasmin v The Queen

(2017) 51 WAR 505; [2017] WASCA 122

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Jurisdiction
3. › Age of offender
4. › Whether District Court or Children's Court had jurisdiction
5. › Onus on prosecution to establish jurisdiction on balance of probabilities
6. › Children's Court of Western Australia Act 1988 (WA), s 19
7. › Criminal Procedure Act 2004 (WA), s 126(1)(a)
1. Criminal Law
2. › Appeals
3. › Royal Prerogative of Mercy
4. › Reference by Attorney General to Court of Appeal
5. › Whether s 68(2) of Judiciary Act 1903 (Cth) confers power on Commonwealth Attorney General to refer petition under s 140 of Sentencing Act 1995 (WA)
6. › Whether reference available where offender convicted on plea of guilty
7. › Whether reference available where offender has not exhausted appeal rights
8. › Judiciary Act 1903 (Cth), s 68(2)
9. › Sentencing Act 1995 (WA), s 140
1. Criminal Law
2. › Appeals
3. › Conviction on plea of guilty
4. › Circumstances in which conviction may be set aside
5. › Whether miscarriage of justice
6. › Whether proviso applies
7. › Criminal Appeals Act 2004 (WA), ss 30(3)(c), 30(4)
1. Criminal Law
2. › Appeals
3. › New trial or acquittal
4. › Discretion to enter judgment of acquittal
5. › Whether interests of justice require acquittal rather than new trial
6. › Sentence already served
7. › Appellant repatriated
8. › Crown would discontinue prosecution
9. › Criminal Appeals Act 2004 (WA), s 30(5)

Quick Take

The Commonwealth Attorney General may refer a petition for the Royal Prerogative of Mercy to a State Court of Appeal under s 140 of the Sentencing Act 1995 (WA) (picked up by s 68(2) of the Judiciary Act 1903 (Cth)) in relation to a federal offence, even where the offender was convicted on a plea of guilty and has not exhausted appeal rights. The deeming provision in s 169(2) of the Criminal Procedure Act 2004 (WA) does not constrain the Court of Appeal's powers on such a reference. Where the prosecution has not established the trial court's jurisdiction on the balance of probabilities, a miscarriage of justice is established even where the offender's guilt is not in dispute.