Attorney-General (Cth) v Finch [No 2]

[1984] HCA 40

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND THE COMMONWEALTH OF AUSTRALIA v. JAMES RICHARD FINCH

(1984) 155 CLR 107

28 June 1984

Constitutional Law

Constitutional Law—Privy Council—Appeal from Supreme Court of Queensland—Petition by convicted person for special leave to appeal from decisions of Court of Criminal Appeal dismissing appeal from conviction and refusing leave to appeal from conviction—Competence—Previous refusal by High Court of special leave to appeal against each decision of Court of Criminal Appeal—The Constitution (63 &64 Vict. c. 12), s. 73—Privy Council (Limitation of Appeals) Act 1968 (Cth), s. 3—Privy Council (Appeals from the High Court) Act 1975 (Cth), s. 3.

Decisions

GIBBS C.J., MASON, WILSON and DAWSON JJ. In this action the plaintiffs claim a declaration that the defendant is precluded from seeking special leave to appeal to Her Majesty in Council in accordance with a petition filed on behalf of the defendant on 14 May 1984. They also seek an injunction restraining the defendant from proceeding further with the petition.

2. It is necessary to set out shortly the history of the litigation of which this present application forms part. The defendant was convicted of murder on 22 October 1973, having been arraigned in the Supreme Court of Queensland on 10 September 1973. He appealed to the Court of Criminal Appeal of Queensland which dismissed the appeal on 9 August 1974. Special leave to appeal to this Court from the Court of Criminal Appeal was refused on 29 November 1974.

3. On 11 September 1978 the defendant sought further leave to appeal against his conviction from the Court of Criminal Appeal upon the basis that one of the principal witnesses called by the Crown at his trial had retracted evidence which he had given. The application was refused on 20 October 1978. The defendant sought special leave to appeal to this Court against this refusal and special leave was refused on 26 June 1981.

4. By a petition filed on 23 June 1983, the defendant sought special leave to appeal to the Privy Council against the decision of this Court given on 26 June 1981. Upon the application of the Commonwealth, this Court, on 9 February 1984, declared that the defendant was precluded from seeking special leave to appeal to Her Majesty in Council and restrained the defendant from proceeding further with the petition filed on 23 June 1983: Attorney-General (Cth) v. Finch (1984) 58 ALJR 50.

5. On 14 May 1984 the defendant filed another petition, this time seeking special leave to appeal to Her Majesty in Council against the judgments and orders of the Court of Criminal Appeal of the Supreme Court of Queensland of 9 August 1974 and 20 October 1978. It is with this petition that these proceedings are concerned.

6. The decision of this Court in Attorney-General (Cth) v. Finch to restrain the defendant from proceeding with his first petition to the Privy Council was based upon s.3 of the Privy Council (Limitation of Appeals) Act 1968 (Cth) ("the 1968 Act"), which provides:

"(1.) Special leave of appeal to Her Majesty in

Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and

(b) did not involve the application or interpretation of -

(i) the Constitution;

(ii) a law made by the Parliament; or

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2.) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act."

7. Before turning to the decision in Attorney-General (Cth) v. Finch, it is convenient to complete the legislative history by reference to the Privy Council (Appeals from the High Court) Act 1975 (Cth) ("the 1975 Act"), s.3 of which provides:

"Special leave of appeal to Her Majesty in

Council from a decision of the High Court shall not be asked in a matter in which such special leave of appeal could, but for this Act, have been asked in accordance with section 3 of the Privy Council (Limitation of Appeals) Act 1968-1973 unless the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of this Act."

The 1975 Act came into operation on 8 July 1975. It can, therefore, have no application in this case which concerns proceedings commenced by the defendant's arraignment for murder on 10 September 1973. It was submitted on behalf of the Attorney-General of Queensland that the decision of the High Court given on 26 June 1981 was given in a proceeding that commenced only in 1978 when the second application to the Court of Criminal Appeal was made; the argument was that because an appeal may be brought only once from a criminal conviction, the second application must have commenced a fresh proceeding. We cannot accept this submission; the second application may have been a nullity, but the proceeding in which it was made was commenced when the defendant was arraigned.

8. It was held in Attorney-General (Cth) v. Finch that the effect of s.3 of the 1968 Act was to prevent any appeal by the defendant to the Privy Council from the refusal of this Court to grant special leave to appeal from the decision of the Court of Criminal Appeal. This was because a distinction is to be drawn between a decision given on appeal and the refusal of special leave to appeal:

"Where a right of appeal is conditional on the grant of special leave to appeal, there can be no appeal until special leave is granted. The grant is an essential preliminary condition to the existence of the appeal. Refusal on the other hand denies the existence of an appeal." ((1984) 58 A.L.J.R. 50, at p.51)

It is to be noted, however, that had the defendant been granted special leave to appeal to this Court against either decision of the Court of Criminal Appeal and had his appeal been unsuccessful, s.3 of the 1968 Act would not have prevented him from applying for special leave to appeal to the Privy Council from the decision of this Court, because the decision of the Court of Criminal Appeal was not given in the exercise of federal jurisdiction and the decision of this Court would not have involved the application or interpretation of the Constitution or of any of the laws or instruments referred to in s.3(1)(b).

9. The validity of both the 1968 and the 1975 Acts is established by judicial decision. In Kitano v. The Commonwealth (1975) 132 CLR 231 the Judicial Committee of the Privy Council held that the 1968 Act was a valid exercise of the power given by s.74 of the Constitution to make laws limiting the matters in which special leave of appeal from this Court to Her Majesty in Council may be asked. In Attorney-General (Cth) v. T.&G. Mutual Life Society Ltd. (1978) 144 CLR 161 this Court held the 1975 Act to be valid as an exercise of the same power. The phrase "limiting the matters in which such leave may be asked" which appears in s.74 of the Constitution was held to be sufficient to support the abolition of all appeals from the High Court to the Privy Council, save for the theoretical possibility of appeals upon the certificate of the High Court upon questions as to the limits inter se of the constitutional powers of the Commonwealth and the States. That is the position after the 1975 Act.

10. It was suggested in Southern Centre of Theosophy Inc. v. South Australia (1979) 145 CLR 246 that the effect of the 1968 and 1975 Acts went beyond the abolition of appeals from the High Court to the Privy Council and was inconsistent with the continued existence of any right to appeal from the Supreme Courts of the States to the Privy Council. This suggestion was rejected. As Gibbs J. observed at p.260:

"Those statutes deal only with appeals from this Court. They have nothing to do with appeals from the Supreme Courts of the States to the Privy Council. That question is dealt with by s.39(2)(a) of the Judiciary Act, whose provisions have been upheld as valid by this Court: see the cases cited in McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. (1945) 70 CLR 145, at p 209. That section, however, deals only with appeals in matters in which the Supreme Courts are exercising federal jurisdiction."

Gibbs J. went on to observe that it may be thought anomalous and inconvenient that there should be two ultimate courts of appeal from the Supreme Courts and that the unsuccessful litigant should be able to choose his court of last resort but that that result was unavoidable as a matter of legal principle.

11. Finally, in Caltex Oil (Aust.) Pty. Ltd. v. X.L. Petroleum (N.S.W.) Pty. Ltd. (1984) 58 ALJR 38 this Court dealt with a situation in which one of two parties to a decision of the Supreme Court of New South Wales instituted an appeal to this Court against the decision and the other party sought leave (to which, in effect, it was entitled as of right) to appeal to the Privy Council. Following Southern Centre of Theosophy Inc. v. South Australia, the Court held that the two avenues of appeal were available from the same judgment and that no inconsistency or repugnancy was involved, notwithstanding the disappearance of the hierarchical relationship between this Court and the Judicial Committee with the abolition of appeals from this Court. It was, however, pointed out by the majority of the Court in that case, at pp.40-41, that the disappearance of that hierarchical relationship now means that:

"A contemporaneous order of the Judicial Committee would not prevail over an order of this Court with respect to the same subject matter."

Those remarks were however directed to a case in which the proceeding was commenced after the commencement of the 1975 Act. Where a proceeding was commenced before that time the position is different. Even after the 1968 Act had been passed, the hierarchical relationship between this Court and the Privy Council remained, except in relation to cases of the kind in which special leave to appeal to Her Majesty in Council from a decision of this Court could, by reason of that Act, no longer be asked. Any conflict between a decision of this Court and one of the Privy Council in a case for which an application for special leave to appeal to the Privy Council might still have been made from a decision of this Court would be resolved in favour of the Privy Council.

12. Before 1968, an appeal against a decision of a Court of Criminal Appeal of a State lay from that court to the Privy Council by special leave notwithstanding the refusal of special leave to appeal to the High Court: see Parker v. The Queen (1964) 111 CLR 665. The 1968 Act does not appear to alter that position, except possibly in relation to those cases (of which the present is not one) in which no application for special leave to appeal to Her Majesty in Council could have been sought from a decision of this Court.

13. Where this Court has done no more than refuse to grant special leave to appeal, no conflict can arise between a decision of this Court and a decision of the Privy Council. The decision of this Court means no more than that it was considered that the matter lacked that special character that justifies the grant of special leave to appeal to this Court. If the Judicial Committee should grant special leave to appeal and allow the appeal in such a case, the decision of this Court would be unaffected.

14. Argument was advanced before us that it is s.73 of the Constitution itself which directly brings about the result that a decision of the High Court refusing special leave is final and conclusive. Under s.73, the High Court has jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences of, amongst other courts, the Supreme Court of any State and the judgment of the High Court in all such cases shall be final and conclusive. The finality of judgments of the High Court in such cases is subject to the grant of special leave to appeal by Her Majesty in Council, which is preserved by s.74 of the Constitution, but that is in turn subject to the power granted by s.74 to the Parliament to make laws limiting the matters in which leave may be asked.

15. The requirement of s.35 of the Judiciary Act 1903 (Cth) that certain appeals, including appeals in criminal matters, shall not be brought to the High Court except by special leave, constitutes the regulation of appeals for which s.73 of the Constitution provides. But it is pursuant to s.35 of the Judiciary Act - the regulation - that an application for special leave is determined and its determination is not the determination of an appeal within the meaning of s.73. As has been shown, Attorney-General (Cth) v. Finch makes this distinction; the decision in that case depends on the view that the refusal of an application for special leave to appeal is not the same as the determination of an appeal. No assistance is, therefore, to be derived by the plaintiffs from the provision in s.73 that the judgment of the High Court in all such cases (i.e., appeals) shall be final and conclusive.

16. Counsel for the plaintiffs relied on the decision of the Privy Council in Wardrop v. The Queen (unreported, 16 January 1980) where the Judicial Committee held that it had no jurisdiction to entertain an appeal from the Court of Criminal Appeal of Queensland following the refusal of special leave to appeal to the High Court. That decision related to proceedings which had been commenced after the 1975 Act.

17. The jurisdiction of the Judicial Committee is ultimately a matter for its determination. However, we have the constitutional responsibility to consider and decide whether an application which is made for special leave to appeal to the Judicial Committee from the decision of an Australian court is contrary to any provision of the Constitution or of the statute law of Australia. For the reasons we have given we consider that no provision of the Constitution and no Australian law precludes the defendant from making the application. Whether the Judicial Committee has jurisdiction to entertain the application must remain a matter for their Lordships' decision.

18. For these reasons we refuse the relief sought in the notice of motion and dismiss the action.

MURPHY J. In The Commonwealth v. Queensland (1975) 134 CLR 298, 336; Viro v. The Queen (1978) 141 CLR 88, 164; Southern Centre of Theosophy Inc. v. South Australia (1979) 145 CLR 246, 262 and Caltex Oil (Australia) Pty Ltd v. XL Petroleum (N.S.W.) Pty Ltd (1984) 51 ALR 1, 9, I said that the effect of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975 was that no appeals remained from Australian courts to the Privy Council. I adhere to that view. The operation of the 1968 Act is sufficient to exclude the appeal in this case.

2. Further, under the Constitution the High Court has an appellate jurisdiction vested by s.73 and an original jurisdiction vested by s.75 which can be supplemented by laws made under s.76. The respondent conceded correctly that an application for special leave to appeal to the High Court was not in the original jurisdiction but faintly suggested that it fell within some category other than original or appellate jurisdiction. There is no other category. Any jurisdiction of the High Court is either original or appellate. An application for special leave to appeal to the High Court is in the appellate jurisdiction. The Constitution, s.73 states:

"The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences -

(ii) ....of the Supreme Court of any State,...

and the judgment of the High Court in all such cases shall be final and conclusive."

A refusal to grant special leave is a determination of

an appeal from a judgment of the Supreme Court of a State and the High Court's judgment is not only final and conclusive of the application, it is a final and conclusive judgment "in the case". On 26 June 1981, the High Court refused Mr Finch special leave to appeal from the Supreme Court of Queensland. The Court thus exercised its appellate jurisdiction and finally determined the case.

3. The Privy Council in Wardrop v. The Queen, an unreported decision of 16 January 1980, correctly recognised that it had no jurisdiction to entertain an appeal from a judgment of a State Supreme Court, when the High Court had refused special leave to appeal from the same judgment.

4. The declaration sought by the plaintiffs should be made and the injunction granted.

BRENNAN J. An indictment was presented in the Supreme Court of Queensland on 10 September 1973 charging James Richard Finch, the defendant in the present action, with the crime of murder. He was tried and, on 22 October 1973, he was convicted and sentenced to life imprisonment. On 9 August 1974 the Court of Criminal Appeal dismissed his appeal against conviction. On 29 November 1974 this Court refused an application for special leave to appeal from the judgment of the Court of Criminal Appeal. After an unsuccessful petition to the Governor for a pardon pursuant to s.672A of The Criminal Code (Q.), the defendant applied on 11 September 1978 to the Court of Criminal Appeal for an extension of time for giving notice of application for leave to appeal against his conviction and for further leave to appeal against that conviction. That Court refused both applications on 20 October 1978. On 26 June 1981 this Court refused an application for special leave to appeal from that judgment of the Court of Criminal Appeal.

2. There the matter rested for nearly two years. Then, on 23 June 1983, the defendant petitioned Her Majesty in Council for special leave to appeal as a poor person from the decision of this Court of 26 June 1981.

3. In Attorney-General of the Commonwealth of Australia v. Finch (1984) 58 ALJR 50 this Court held that s.3(1) of the Privy Council (Limitation of Appeals) Act 1968 (Cth) ("the 1968 Act") precluded a person from seeking special leave to appeal to Her Majesty in Council from decisions of this Court refusing applications for special leave to appeal to it. The defendant was restrained from proceeding further with his petition.

4. The defendant then presented the petition which is the subject of the present proceedings. On 14 May 1984 he petitioned Her Majesty in Council for special leave to appeal as a poor person from the judgments and orders of the Court of Criminal Appeal of 9 August 1974 and 20 October 1978. The Attorney-General for the Commonwealth, supported by the Attorney-General for Queensland, claims a declaration that the defendant is precluded from seeking special leave to appeal to Her Majesty in Council in accordance with his later petition and an injunction to restrain the defendant from proceeding further with that petition.

5. In form the petition of 14 May 1984 does not seek special leave to appeal from a decision of this Court. It seeks special leave to appeal only from those judgments of the Court of Criminal Appeal, special leave to appeal from which has been refused by this Court. As s.3 of the 1968 Act and the Privy Council (Appeals from the High Court) Act 1975 (Cth) ("the 1975 Act") preclude the seeking of special leave to appeal from decisions of the High Court only, those provisions do not in terms preclude the seeking of special leave to appeal from judgments of the Court of Criminal Appeal. Nevertheless, in my view the fate of the present action depends upon the operation of those Acts or, more precisely, upon the operation of the 1968 Act.

6. Those Acts divided the appellate hierarchy, so that some appeals might be finally determined by the Judicial Committee and others can be finally determined only by this Court. Prior to 1968, save as to the questions to which s.74 of the Constitution relates, this Court had stood as an intermediate court in a hierarchy at the apex of which stood the Judicial Committee. The right of a convicted person to seek special leave to appeal to Her Majesty in Council from a judgment of a Court of Criminal Appeal could not have been denied by a decision of this Court. If this Court had entertained an appeal and dismissed it, the convicted person was entitled to apply to their Lordships for special leave to appeal to the Privy Council; if this Court had refused special leave to appeal from a judgment of a Court of Criminal Appeal, the convicted person was no less entitled to seek special leave to appeal to the Privy Council from the judgment of the Court of Criminal Appeal: see Parker v. The Queen (1964) AC 1369; (1964) 111 CLR 665. The jurisdiction of the Privy Council was not excluded by the way in which this Court disposed of the matter.

7. The appellate hierarchy was radically changed by the 1968 and 1975 Acts. The decisions of this Court became final but, in matters not within s.39(2)(a) of the Judiciary Act 1903 (Cth), the jurisdiction of Her Majesty in Council to entertain appeals from the Supreme Courts of the Australian States remains: Southern Centre of Theosophy Inc. v. South Australia (1979) 145 CLR 246. And so two courts, within the same legal system, are empowered to give judgments that are final. Each court has jurisdiction to determine, without appeal to or review by the other, proceedings in which its jurisdiction is properly invoked. Where the parties to litigation have a right to appeal to this Court and a right to appeal to the Judicial Committee, it is possible for one party to appeal to this Court and for the other to appeal to the Judicial Committee so that the jurisdiction of both courts can be invoked concurrently in the same matter: Caltex Oil (Australia) Pty Ltd v. XL Petroleum (N.S.W.) Pty Ltd (1984) 58 ALJR 38. In that case, the invoking of the two jurisdictions was held not to be potentially productive of inconsistent final judgments in the same matter. Is there in the present case a possibility of inconsistent final judgments if the Judicial Committee were to grant the defendant's present petition for special leave to appeal? The answer to that question depends upon the effect of the decisions of this Court refusing special leave to appeal from the judgments of the Court of Criminal Appeal.

8. When the jurisdiction of this Court is invoked in a criminal matter in which a State Court of Criminal Appeal has given judgment, this Court may determine finally all the issues arising in the case. Sitting now as a final court of appeal, this Court's decisions must be taken to conclude the issues in the proceedings before it without the possibility of review by the Judicial Committee of the same issues. In cases in which special leave to appeal from a Court of Criminal Appeal is sought there are two broad issues: the first, whether the jurisdiction of this Court to entertain an appeal should be exercised; the second (which follows either immediately upon a refusal of special leave or upon the determination of the appeal) whether the judgment of the Court of Criminal Appeal should stand. Whether this Court disposes of the matter by granting special leave and dismissing the appeal, by granting special leave and allowing the appeal, or by refusing special leave, its decision determines the two issues. The necessary effect of a decision by this Court, sitting as a final court of appeal, that special leave to appeal to it be refused is that the judgment of the Court of Criminal Appeal should stand.

9. The second issue was not necessarily concluded by a refusal of special leave to appeal when this Court stood as an intermediate court in the appellate hierarchy, as Parker v. The Queen shows. But now an order of this Court dismissing an appeal or refusing special leave to appeal from a judgment of a Court of Criminal Appeal gives to the judgment of the Court of Criminal Appeal an unappealable character. No doubt a judgment of a Court of Criminal Appeal may be set aside pursuant to the extraordinary procedure permitting reference of a petition for a pardon to the Court of Criminal Appeal (see, for example, The Criminal Code (Q.), s.672A).

10. Once this Court has decided that a judgment of a court below is to stand, the possibility of an Order in Council setting aside or varying that judgment cannot be admitted. Although there are alternative avenues of appeal from the Supreme Courts of the States in some cases, those avenues are within the same legal system and it is axiomatic that a legal system cannot admit the possibility of inconsistent final orders disposing of the same matter. The courts which are entrusted with judicial power may be diverse, but in the end they must speak with one voice or only one may speak. In those cases of which Caltex Oil is an example the application of legal rules binding upon two final courts suffices to avoid the possibility of inconsistent final orders: in Caltex Oil the majority found judicial comity and I found the principles of res judicata sufficed for that purpose. The statutes conferring jurisdiction on this Court and giving legislative sanction to the jurisdiction of the Judicial Committee could not have been construed as providing for the exercise of concurrent jurisdiction by both Courts if there had been no legal rules ensuring that this Court and the Judicial Committee made consistent orders. An "inconsistency between the underlying statutory provisions" (per Deane J., at p.49) would have been manifested, and that inconsistency would have been resolved in favour of the statutes conferring jurisdiction on this Court. Their Lordship's jurisdiction, given legislative sanction by the Judicial Committee Act 1833 (Imp.) and the Judicial Committee Act 1844 (Imp.), is affected to the extent necessary to give full operation to the 1968 Act and the 1975 Act (cf. Kitano v. Commonwealth of Australia (1976) AC 99; (1975) 132 CLR 231; Attorney-General (Cth) v. T. &G. Mutual Life Society Ltd. (1978) 144 CLR 161). As the 1968 Act has the effect of making final the decisions of this Court refusing special leave to appeal, no further proceeding can be taken to invoke the jurisdiction of the Judicial Committee to review the issues thus decided. If there be no legal rules sufficient to avoid the possibility of orders by the Judicial Committee inconsistent with the orders made by this Court, it is not possible to admit the existence of jurisdiction in the Judicial Committee.

11. It may be thought that the 1968 Act has an anomalous operation. It would have been open to a party to apply for special leave to appeal from a decision given on appeal by this Court falling within pars.(a) and (b) of s.3(1) of that Act, but it is not open to apply for special leave to appeal from a judgment from which this Court has refused special leave to appeal. The finality of the refusal of special leave as against the availability of an appeal from the judgment of this Court to the Judicial Committee was, of course, the precise point in Attorney-General of the Commonwealth of Australia v. Finch, and the anomaly is merely a reflection of the limited scope of the exception contained in the 1968 Act. The anomaly was removed by the 1975 Act.

12. In Wardrop v. The Queen, an unreported decision of the Judicial Committee of 16 January 1980, where an application for special leave to appeal from a judgment of the Court of Criminal Appeal of Queensland was made after this Court had refused special leave, their Lordships held that they had no jurisdiction to entertain the appeal. I would agree, with respect, with their Lordships' conclusion. Once this Court had decided that the judgment of the Court of Criminal Appeal should stand the Judicial Committee could neither set aside or vary that judgment on appeal, nor could it receive an appeal for that purpose.

13. In the present case, the application pending before their Lordships is for special leave to appeal from two judgments of the Court of Criminal Appeal; one pronounced before the 1975 Act came into operation and the other pronounced afterwards. The decisions of this Court refusing special leave from both of those judgments are final decisions from which no appeal lies, and by those decisions the judgments of the Court of Criminal Appeal were respectively given the character of conclusive judgments. No appeal by special leave lies from either judgment to the Judicial Committee.

14. As I have the misfortune to differ from the majority, it is unnecessary to consider whether an injunction should issue. However, as it is primarily a function of this Court to define the true meaning and operation of laws of the Commonwealth and as my opinion is founded upon an operation of the 1968 Act, I would make a decree declaring that the defendant is precluded from asking special leave to appeal in this case.

DEANE J. In Caltex Oil (Australia) Pty. Ltd. v. XL Petroleum (N.S.W.) Pty. Ltd. (1984) 58 ALJR 38, a question arose in this Court as to the jurisdiction of the Privy Council to entertain an appeal from a judgment of the Supreme Court of New South Wales (Court of Appeal). In that case, the plaintiff in the proceedings at first instance ("XL") had appealed to this Court from the judgment of the Court of Appeal which had reduced the amount of exemplary damages awarded in its favour at first instance. The defendant ("Caltex") had filed a cross appeal, limited to questions related to the amount of damages, in this Court and was seeking, in an application removed into this Court pursuant to s.40 of the Judiciary Act 1903 (Cth), conditional leave to appeal to the Privy Council to challenge the availability of exemplary damages at all. A majority of the Court (Gibbs C.J., Mason, Wilson and Dawson JJ. in a joint judgment and Brennan J. in a separate judgment) was of the view that the Privy Council possessed jurisdiction to entertain the proposed appeal by Caltex. I reached a different conclusion, being of the view that the Privy Council lacked jurisdiction to entertain an appeal from the judgment of the Court of Appeal in the particular circumstances of that case.

2. It had been established in Southern Centre of Theosophy Inc. v. South Australia (1979) 145 CLR 246 that, notwithstanding the Commonwealth Acts of 1968 and 1975 abolishing appeals to the Privy Council from this Court, there is no general inconsistency between the statutory foundations of the respective appellate jurisdictions of the Privy Council and of this Court. That did not, however, mean that particular underlying inconsistency between those two sets of statutory provisions might not be manifested in a case where both would, according to their terms, authorize the concurrent assertion or exercise of jurisdiction by both the Privy Council and this Court in the one case. The context in which any such question of particular underlying inconsistency would ordinarily now fall to be determined was summarized in my judgment in the Caltex Case in the following passage which is, in my view, not inconsistent with what was said in the majority judgments and to which I adhere:

"The Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals from this Court to the Privy Council subject only to the theoretical exception of an appeal pursuant to a certificate of this Court in a matter involving an inter se question. This represented no mere sea-change. It effected a bifurcation of the previous unified appellate structure into distinct structures: one, in which this Court ordinarily has no role to play, leading to the Privy Council; the other, in which the Privy Council has no role to play, leading to this Court. In the appellate structure leading to the Privy Council, from which all matters involving the exercise of federal jurisdiction are now excluded (Judiciary Act, s.39(2)(a)) the Judicial Committee remains the final appellate court. It is there alone that the Judicial Committee remains of pre-eminent authority in so far as Australia is concerned. In all other areas, this Court is the ultimate appellate tribunal for Australia. As between the Judicial Committee and this Court, there no longer exists the control of conflict in the exercise of judicial powers by different courts which is inherent in the hierarchy of tribunals in a single appellate structure. Nor can the judicial powers of this Court be read back to avoid conflict with the judicial powers of the Privy Council in a manner which may have been appropriate when this Court was part of an appellate structure in which the Privy Council was pre-eminent. If inconsistency exists or arises between the respective judicial powers of the Privy Council and of this Court, it manifests, pro tanto, inconsistency between the statutory foundations of the respective jurisdictions and must be resolved in accordance with ordinary legal principles" (at pp.47-48).

It is clear that, in the event of any such particular underlying inconsistency between the provisions of the Imperial Acts (and Orders in Council made under them) determining and regulating the jurisdiction of the Privy Council and the provisions of the Constitution (and legislation enacted by the Commonwealth Parliament under it) establishing and conferring jurisdiction on this Court, the Constitution (and legislation under it) must prevail by reason of the fact that the Constitution enjoys the authority of the later enactment of the Imperial Parliament. The disagreement between the majority and myself in the Caltex Case was, as I read the majority judgments, restricted to the question whether "any relevant inconsistency" could be discerned in the operation of the respective sets of provisions, according to their terms, to authorize the concurrent appeals to this Court and to the Judicial Committee which the different parties sought to pursue in the particular circumstances of that case (see per Gibbs C.J., Mason, Wilson and Dawson JJ., at p.40).

3. The circumstances of the present case are significantly different from those of the Caltex Case. One such difference is that, in the present case, it is the same party who initiated the resort to this Court and who now, having been unsuccessful here, seeks to pursue the path of appeal to the Judicial Committee. It is one thing to say, as was established in Caltex, that there is no inconsistency between different sets of statutory provisions to the extent to which they operate to authorise resort by different parties to quite distinct appellate structures in order to challenge the same judgment. It is quite a different thing to deny the existence of any such inconsistency between different sets of statutory provisions to the extent to which they would, according to their terms, authorize such resort by the same party to both of such distinct appellate structures. Another such difference is that, in the Caltex Case, the questions involved in the appeal to this Court were distinct from the one question which it was sought to have determined by the Judicial Committee whereas, in the present case, it has not been suggested that the issue which it will be sought to have determined by appeal to the Judicial Committee if special leave to appeal be granted differs, in any relevant way, from the issue which it would have been sought to have determined by appeal to this Court. Those differences are, in my view, of such importance as to make the present case plainly distinguishable from the Caltex Case. Yet another difference is that the primary proceedings in the present case, namely the proceedings leading to the defendant's conviction of murder in the Supreme Court of Queensland, were completed before the commencement of the 1975 Commonwealth Act on 8 July 1975. It is, however, convenient to put that difference to one side for the moment and approach the matter as if the proceedings leading to the defendant's conviction had, like the proceedings in the Supreme Court in the Caltex Case, commenced after that date.

4. While the Judicial Committee and this Court were both part of the one appellate structure in which the Privy Council was pre-eminent, there was no necessary inconsistency involved in statutory provisions which authorized resort to the appellate powers of both Courts to challenge the same judgment. Any potential conflict in the exercise of judicial powers in that context would fall to be resolved by reference to the pre-eminence of the Judicial Committee. Nor is any such inconsistency involved to the extent that the relevant statutory provisions operate merely to enable one party to resort to one or other of the Judicial Committee or this Court in the situation which has existed since two distinct appellate structures replaced the single one which previously existed. So much was established by the Southern Centre of Theosophy Inc. Case. The Caltex Case must be accepted, while it stands, as going further and establishing that no such inconsistency is involved to the extent that those statutory provisions operate to enable a respondent to an appeal in this Court, who has lodged a limited cross appeal in that appeal, to appeal to the Privy Council from the same judgment but on a question that was not involved in the appeal to this Court. It appears to me however to be plain that inconsistency must be reached at the stage where the relevant statutory provisions would, according to their terms, purport to authorize one party to litigation to resort to both of two quite distinct appellate structures, each leading to a different final court, to attack the one judgment on the same grounds. It is unnecessary to decide, for present purposes, whether any such inconsistency should be resolved by treating the Imperial Acts (and Orders in Council made under them) determining and regulating the jurisdiction of the Privy Council as impliedly repealed to the extent to which they would authorize resort or continued resort to the appellate structure in which the Privy Council is pre-eminent in any matter in which the same party has elected to resort to the appellate structure in which this Court is pre-eminent to challenge the same judgment or whether the two distinct sets of statutory provisions should be read together so as to preclude resort by one party to either appellate structure after he has already elected to resort to the other to challenge the same judgment. Either way, resort by one party to the appellate structure in which the Judicial Committee is pre-eminent to challenge a judgment of the Supreme Court of a State from which he has already elected to seek, and has been refused, special leave to appeal to this Court would be precluded in any case in which the Supreme Court proceedings were commenced after the commencement of the 1975 Act. I am strengthened in that conclusion by the fact that the Privy Council itself has decided, in Wardrop v. The Queen (unreported, 16 January 1980), that it lacks jurisdiction in such a case. I turn to consider the significance, for the purposes of the present case, of the fact that the defendant's conviction was in proceedings commenced before the commencement of the 1975 Act.

5. In Attorney-General (Cth) v. Finch (1984) 58 ALJR 50, it was held by this Court that the effect of the 1968 Commonwealth Act was to preclude an application for special leave to appeal to the Judicial Committee from a decision of the Court refusing an application for special leave to appeal to it. Subject to that qualification, the 1968 Commonwealth Act did not, according to its terms, have any effect at all on the present defendant's rights of appeal to this Court and to the Privy Council from the judgments of the Court of Criminal Appeal of Queensland from which he now seeks special leave to appeal to the Judicial Committee. The provisions of the 1975 Commonwealth Act were expressly confined so as not to apply to an application for leave to appeal to the Judicial Committee from a decision of this Court "given in a proceeding that was commenced in a court before the date of commencement" of that Act (s.3). It follows that, subject only to the abovementioned qualification, the appellate structure which is relevant in respect of the judgments of the Court of Criminal Appeal in the present case is the appellate structure which operated before the commencement of the 1975 Act in respect of a judgment of a Supreme Court not involving any federal element. That appellate structure was, as has been said, a unified one. Under it, the availability of concurrent appeals to two, and in some cases three, different appellate courts could and did, if different parties elected to appeal to different courts from the one judgment, lead to difficulty and inconvenience. However, the decisions of this Court clearly establish that neither the availability nor the pursuit of such concurrent appeals in a unified appellate structure in which the Privy Council was clearly pre-eminent manifested any underlying inconsistency between the respective statutory foundations of appeals to the Privy Council and appeals to this Court (see, e.g., the Caltex Case, at pp.40, 44-45, 47).

6. The qualification that, subsequent to the 1968 Act, no appeal lay to the Privy Council from a decision of this Court granting or refusing special leave to appeal is not, in my view, of significance for the purposes of the present case. The theoretical availability of an appeal from such a decision had never been of real practical importance. It would obviously have required quite extraordinary circumstances before the Judicial Committee would have considered it appropriate to allow an appeal from a discretionary decision of this Court refusing or granting special leave to appeal and thereby, in effect, to order that this Court hear or desist from hearing the substantive appeal to it. Purely local considerations, such as the local importance of the issues raised by a case, the competing claims of other cases which are either awaiting hearing or in which special leave to appeal is sought or the likelihood that questions of law may be resolved in another case in the list for hearing or for judgment, can plainly be relevant to the question whether special leave to appeal to this Court should be granted in a particular case. Obviously, any party who was dissatisfied with a decision of this Court refusing special leave to appeal to it would, if well advised, have followed the course followed in Parker v. The Queen (1964) 111 CLR 665 and applied to the Judicial Committee for special leave to appeal to it.

7. I am conscious of the force of the argument that the defendant's application for special leave to appeal to the Judicial Committee should be seen, in substance, as involving the same subject matter as was involved in the orders of this Court refusing special leave to appeal. I am, however, unpersuaded by it. In my view, the question whether this Court should, as a matter of discretion, grant special leave to appeal to it from a judgment is a quite distinct question from the question whether the Judicial Committee, in the exercise of its discretion, should grant special leave to appeal to it from the same judgment. In the context where an appeal lay from a judgment of this Court to the Judicial Committee, considerations which might be seen in this Court as weighing decisively against the grant of special leave to appeal (e.g. some recent decision of this Court or some long-standing decision of the Judicial Committee) might be seen as equivocal or even as weighing in the opposite direction in the Judicial Committee. Considerations which might weigh in the Judicial Committee against the grant of special leave to appeal (e.g. that the question involved was one which was appropriate to be resolved locally: see, e.g. Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221, at p 241; Freightlines &Construction Holding Ltd. v. New South Wales (1967) 116 CLR 1, at pp 21-22)) may well be thought irrelevant or even to weigh in the opposite direction in this Court.

8. It was, at one stage, suggested in argument that the application for leave to appeal to the Judicial Committee from the judgments of the Court of Criminal Appeal should properly be seen as an actual application for leave to appeal from the decisions of this Court refusing special leave and as therefore precluded by the direct operation of the 1968 Act as construed by the Court in Attorney-General v. Finch. The simple answer to that suggestion is that, if special leave to appeal from the 1974 judgment is granted by the Privy Council, the resulting appeal to the Privy Council will, neither in form or in substance, be an appeal from those decisions of this Court. Indeed, it is difficult to see that those decisions of this Court would be in any way relevant on such an appeal to the Privy Council.

9. In the result, I have come to the conclusion that the Judicial Committee possesses jurisdiction to entertain the application for special leave to appeal to it in the particular circumstances of the present case. Such jurisdiction would not exist if the proceedings in the Queensland Court of Criminal Appeal had commenced after 8 July 1975, when the provisions of the 1975 Commonwealth Act came into operation. It exists by reason of the fact that the relevant appellate structure is that which existed prior to that date in respect of appeals from State Supreme Courts in matters not involving any federal element.

10. The action should be dismissed.

Orders

Application for injunction refused.

Action dismissed with costs.