William John Kamm v State of New South Wales

WILLIAM JOHN KAMM
v
STATE OF NEW SOUTH WALES
[2017] HCASL 128
S90/2017

The applicant seeks an order under s 40 of the Judiciary Act 1903 (Cth) removing into this Court part of an application for leave to appeal pending in the Court of Appeal of New South Wales. The application for leave to appeal sought to be removed concerns the validity of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). In this regard, the applicant seeks to contend that the Act offends the principles identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.
We are not satisfied that sufficient cause has been shown to warrant the removal of this issue into this Court.
The issue sought to be removed to this Court was not agitated before the primary judge. It was raised by the applicant as an issue in the proposed appeal for the first time only after the application for leave to appeal had been pending for more than a year.
To accede to the application would fragment the appellate process and would deny this Court the benefit of the consideration by the Court of Appeal of the issue sought to be removed.
Pursuant to r 26.07.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application for removal with costs.

S.J. Gageler
11 May 2017 P.A. Keane

CaseChat Overview and Summary

In the matter of William John Kamm versus the State of New South Wales, the applicant sought to have a specific aspect of an appeal against the validity of the Crimes (High Risk Offenders) Act 2006 (NSW) considered by the High Court of Australia. The Court of Appeal of New South Wales was already dealing with an application for leave to appeal, which the applicant wished to have transferred to the High Court under section 40 of the Judiciary Act 1903 (Cth). The applicant's contention was that the Act contravened certain principles established by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

The central legal issues before the Court were whether the applicant had demonstrated sufficient cause to warrant the transfer of the issue to the High Court and whether it was appropriate to fragment the appellate process by doing so. The applicant had raised the issue of the Act's validity for the first time after the application for leave to appeal had been pending in the Court of Appeal for over a year. The Court considered that by transferring the issue to the High Court, it would be denying the Court of Appeal the opportunity to consider the issue, which could potentially lead to an uneven and inconsistent appellate process.

The High Court found that it was not satisfied that sufficient cause had been shown to warrant the removal of the issue into the Court. The Court noted that the issue had not been agitated before the primary judge and was raised only after the application for leave to appeal had been pending for more than a year. The Court further stated that transferring the issue at that stage would fragment the appellate process and would deny the Court the benefit of the consideration by the Court of Appeal. Consequently, the Court dismissed the application for removal and directed the Registrar to draw up, sign, and seal an order dismissing the application with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established