R v Hickey [2020] QCA 206

Date: 21 September 2020
Tribunal: Queensland Court of Appeal
Tribunal Member: Morrison and Mullins JJA, Jackson J
Human Rights Act 2019 (Qld) Sections: s 34
Rights Considered: Right not to be tried or punished more than once
Other Legislation: Criminal Code (Cth) s 474.17; Acts Interpretation Act 1954; Crimes Act 1914 (Cth)
Keywords: Criminal Law and Corrective Services

This case concerned an application for an extension of time for leave to appeal against a sentence, in which the applicant relied on the right not to be tried or punished more than once (section 34 Human Rights Act 2019 (Qld)). The Queensland Court of Appeal held that the argument faced ‘insurmountable hurdles’ and dismissed the application.

This case concerned an application for an extension of time for leave to appeal against a sentence imposed on the applicant in 2019 under a Commonwealth Act.

The applicant submitted that section 34 of the Human Rights Act 2019 (Qld) prohibited the making of these orders because they amounted ‘to punishment more than once for an offence in relation to which the applicant has already been finally convicted in accordance with law’: at [4]. Jackson J, with which Mullins and Morrison JJA agreed, held that it was ‘unnecessary to discuss the formidable and, most likely, insurmountable hurdles that such a ground of appeal would face’: at [5]. These included the fact that the applicant was convicted under the provisions of a Commonwealth Act to which the Human Rights Act 2019 (Qld) did not apply, the sentences were imposed prior to the commencement of the Human Rights Act 2019 (Qld), the Supreme Court’s power is limited to a declaration of invalidity ‘where a question of interpretation of a statutory provision in accordance with the Human Rights Act 2019 arises’: at [5], and that if section 34 of the Human Rights Act 2019 (Qld) operated inconsistently with the sentencing provisions of the relevant Commonwealth Act, then the Commonwealth provisions would prevail under section 109 of the Constitution. Accordingly, the application was dismissed.

Visit the judgement: R v Hickey [2020] QCA 206