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High Court judgments

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Cite as: April 2012 86 (04) LIJ, p.60

Criminal law

Crown appeal against sentence – double jeopardy – whether rule exists – whether rule applicable in sentencing

In Bui v DPP (Cth) [2012] HCA 1 (9 February 2012) by s80 the Judiciary Act 1903 (Cth) provides that state courts exercising federal jurisdiction must apply the common law as modified by the statute law in force in the state. In allowing an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on B for involvement in importing drugs, the Victorian Court of Appeal held that ss289(2) and 290(3) of the Criminal Procedure Act (Vic) excluded the rule against double jeopardy from preventing appeals by commonwealth prosecutors. B contended that the rule against double jeopardy was picked up by s16A of the Crimes Act 1958 (Vic) as one of the matters a sentencing court must consider and was rendered applicable in commonwealth prosecutions by s80 of the Judiciary Act. In a joint judgment the High Court reviewed the “principle against double jeopardy” and concluded it was not picked up by s16A of the Crimes Act in any event (French CJ, Gummow, Hayne, Kiefel, Bell JJ). Appeal dismissed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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