Bradshaw v Attorney-General of Queensland

[1998] QCA 42

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.873 of 1998

Brisbane

[Bradshaw v. A-G]

BETWEEN:

JAMES TODD BRADSHAW Applicant

AND:

THE HONOURABLE DENVER BEANLAND

Minister for Justice and Attorney-General for the

State of Queensland Respondent

Davies J.A.
McPherson J.A.

Williams J.

Judgment delivered 17 March 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION REFUSED.
SUBJECT TO APPLICATION BEING MADE, CERTIORARI ORDER ISSUED

REMOVING THIS MATTER INTO THIS COURT.

CATCHWORDS:	CRIMINAL - Contempt of Court - Section 129 District Court Act 1967 - Whether s. 118 District Court Act includes a right of appeal against a contempt conviction in the District Court under s.129 District Court Act - Section 47 Courts Reform Amendment Act 1997 - Whether trial judge exercising criminal jurisdiction - Section 14B(1)(b) Acts Interpretation Act 1954 - Whether plain meaning of s.118 District Court Act manifestly absurd or unreasonable - Consideration of extrinsic material in interpretation of s.118 District Court Act.
Counsel:	Mr Hampson Q.C., with him, Mr Macgroarty, for the applicant Mr Freeburn for the respondent
Solicitors:	Thomas Stevens & Co. for the applicant

Crown Solicitor for the respondent

Hearing Date:  23 February 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.873 of 1998

Brisbane

Before Davies J.A.
McPherson J.A.
Williams J.

[Bradshaw v. A-G]

BETWEEN:

JAMES TODD BRADSHAW Applicant

AND:

THE HONOURABLE DENVER BEANLAND

Minister for Justice and Attorney-General for the

State of Queensland Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 17 March 1998

In December last year William Daddow came to trial before White D.C.J. and a jury

in the District Court at Cairns on an indictment charging him with having unlawfully wounded

a man named Dennis James and with having done grievous bodily harm to him. The applicant,

who is a member of the Queensland Bar, appeared as counsel for the accused at the trial.

On 4 December 1997, which was the second day of the trial, the applicant was in the

course of cross-examining a prosecution witness when an exchange took place between him and

the judge. Words passed between them, after which, following a short adjournment, the judge

charged the applicant pursuant to s.129 of the District Court Act 1967 with having wilfully

insulted the judge. In answer to that charge the appellant pleaded not guilty, but he was

convicted and fined $500, to be paid within one month. The applicant then withdrew from the trial, and no other counsel being available to take his place, the jury were later discharged and

the proceedings on the indictment were adjourned to a date to be fixed. By notice of motion

dated 23 December 1997, the applicant has now sought the leave of this Court to appeal against

the order and the adjudication, as it is described in the notice of motion, that he be fined for

contempt of court.

Section 129(1)(a) of the Act makes it an offence to wilfully insult various persons,

including a judge, specified in the section during the sitting or attendance of that person in court,

and s. 129(4) provides that the court may impose a fine on the offender not exceeding 84 penalty

units. It was under these provisions, which are headed Contempt of court, that the judge acted

in imposing the fine in the present case. The threshold question is whether in law it is possible

for the Court of Appeal to give leave to appeal the decision and the fine.

Under the legal system we administer, it is a settled rule that there is no right of appeal

to a higher court unless it is conferred by statute. The same necessarily applies to any appeal by

leave of the court. The provision under which leave is sought here is s.118(3) of the District

Courts Act which, after specifying in s.118(2) the judgments against which a right to appeal is

given, then proceeds to invest this Court with a power to grant leave to appeal to a party who is

dissatisfied with “any other” judgment of a District Court given in the original or appellate

jurisdiction of that court.

A provision to much the same effect appeared in s.118(2) of the Districts Court Act

until it was replaced by provisions in the Courts Reform Act Amendment 1997. In view of what

follows, it is helpful to set out here the provisions of both that subsection and s.118(1) in the

form in which they stood before being replaced in 1997. They were then as follows:

“118. (1) Any party who is dissatisfied with the final judgment of a
District Court, whether in its original or appellate jurisdiction -

(a)    in an action or matter in which the sum sued for exceeds $10,000;

(b)    in an action for the recovery of possession of land of which the value exceeds $10,000;

(c)   in proceedings in interpleader in which the amount claimed or the value of the goods in question exceeds $10,000;

(d)    in an action or matter which before the commencement of the District Courts Act and Other Acts Amendment Act 1989 might have been commenced only in the Supreme Court unless the parties agreed to it being heard and determined in another jurisdiction;

may appeal to the Court of Appeal

(2) Any party who is dissatisfied with a judgment of a District Court other than one hereinbefore mentioned in this section may by leave of the Court of Appeal or a judge of appeal appeal to the Court of Appeal.”

Under the provision in s.118(2), applications for leave to appeal against convictions in the

District Court for contempt of court have in the past been made to and granted by this Court, as

well as by its predecessor the Full Court of Queensland. Such a conviction was regarded as a

judgment “other than one hereinbefore mentioned ...”. A notable example is Macgroarty v.

Clauson (1989) 167 C.L.R. 251, where an appeal was allowed by the High Court from a decision

of the Full Court dismissing an appeal from a conviction and fine for contempt of court imposed

in the District Court. At that time the corresponding provision was s.92(2) of the Act. Another

and more recent instance in which such an appeal was entertained in this Court is Stanbridge v.

Director of Prosecutions (App. No. 5416 of 1996. C.A. May 27, 1997).

The difficulty confronting the applicant is that, on and from 1 August 1997, s.47 of the

Courts Reform Amendment Act 1997 repealed and replaced s.118 of the District Courts Act with

a section which in material respects is now in different terms:

“Appeal to the Court of Appeal in certain cases.
118. (1) This section does not apply to an appeal from a judgment of a
District Court exercising criminal jurisdiction, other than an appeal brought
before a District Court under the Justices Act 1886, section 222.
(2) A party who is dissatisfied with a final judgment of a District Court in
its original jurisdiction may appeal to the Court of Appeal if the judgment
-

(a)   is given -

(i)	for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
(ii)	in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or

(b)   involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit.

(3) A party who is dissatisfied with any other judgment of a District Court, whether in the court’s original or appellate jurisdiction may appeal to the Court of Appeal with the leave of that court.”

The source of the difficulty is the incorporation of what may be called the new

s.118(1). Its express effect is to exclude or prevent the application of the whole of that section

to an appeal “from a judgment of a District Court exercising criminal jurisdiction”. The

expression “judgment” is defined in s.3 of the Act to include a “judgment, order, or other

decision or determination of a judge”. There is therefore no doubt that the decision of White

D.C.J. by which the applicant was found to have been guilty of an offence under s.129(1)(a)

answers that description. The remaining question is whether, in giving that judgment or decision,

his Honour was “exercising criminal jurisdiction”. At the time he convicted and fined the

applicant he was engaged in trying an indictable offence, which, by s.60 of the Act, it is within

the jurisdiction of a District Court to inquire into, hear and determine. To that extent at least, he

was exercising criminal jurisdiction. Approaching the matter in that way may state the question

too broadly; but, even so, it remains true that the decision finding the applicant guilty of contempt

and fining him for it plainly amounted to an exercise of criminal jurisdiction. The distinction between a criminal and a civil contempt is not always easy to identify even if some consequences

of the distinction may be considerable; for example, the prerogative of pardoning offences clearly

extends to the former, but not to the latter: cf. In the Matter of a Special Reference from the

Bahama Islands [1893] A.C. 138. However, having regard to the character of the conduct

comprehended by s.129(1)(a) of the Act and the nature of the penalties imposed by s.129(4), as

well as to what was said in Witham v. Holloway (1995) 183 C.L.R. 525, 530, 538, there can be

no doubt that the decision holding the applicant guilty of contempt in the present case was, within

the meaning of s.118(1), a judgment of a District Court exercising criminal jurisdiction. So much

is acknowledged and, indeed, affirmed in the applicant’s further written outline of argument in

this matter.

It follows that, unless some other interpretation can be placed on s.118(1), the effect

of that provision is to exclude the power of this Court to grant leave to appeal from the decision

that the applicant now seeks to challenge. For this purpose, the applicant relies on s.14B(1)(b)

of the Acts Interpretation Act 1954 and on the explanatory note provided to members of the

Legislative Assembly in the course of the Parliamentary debate leading to the enactment of what

was then cl.47 of the Courts Reform Amendment Bill. The explanation in the note is as follows:

“Clause 47 replaces Section 118, which specifies the rights of persons to appeal from judgments of the District Court to the Court of Appeal. This section encompasses rights of appeal in both civil and criminal proceedings, except appeals following a criminal trial on indictment. The rights of appeal following trials on indictment are contained in Chapter 67 of the Criminal Code.”

If the ordinary meaning of a statutory provision leads to a result that is manifestly

absurd or unreasonable, then, by virtue of s.14B(1) of the Acts Interpretation Act 1954,

consideration may be given to extrinsic material capable of assisting in the interpretation of that provision in order to provide an interpretation that avoids such a result. The precise terms of

s.14B(1)(b) on which the applicant founds his submission are as follows:

“14B. (1) Subject to sub-section (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) ...

(b)   if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result ...”.

By s.14B(3)(c) “extrinsic material” is defined to include an explanatory note or memorandum

of the kind referred to here. A provision similar to s.14B(1)(b) appears in s.15AB(1)(b)(ii) of the

Acts Interpretation Act 1901 (Cth.), and has been referred to in the High Court on recent

occasions including Newcastle City Council v. GIO General Ltd. (BC 9706330; Dec. 2, 1997),

which was cited by the applicant. It is, however, in slightly different, and on one view possibly

more restricted, language in that the manifest absurdity or unreasonableness of the statutory

provision that is being interpreted is to be ascertained by “taking into account its context in the

Act and the purpose or object underlying the Act”. A comparable provision appears in s.14A of

the Queensland Act, but it is not specifically related to the use of extrinsic material.

Under s.14B(1)(b), the function served by considering the extrinsic material is to assist

in interpreting a statutory provision in order to justify a departure from its ordinary meaning. The

“ordinary meaning” and effect of s.118(1) of the District Court Act is that the power of this Court

under s.118(3) to grant leave to appeal from “any other” judgment of the District Court does not

apply to an appeal from a judgment of a District Court in the exercise of its criminal jurisdiction,

which includes its jurisdiction under s.129 to punish for contempt of court. The proposition

advanced by the applicant is that, in interpreting s.118(1), consideration ought to be given to the explanatory memorandum to provide an interpretation of s.118(1) that avoids that conclusion

because it is a result that is “manifestly absurd or unreasonable”.

At one time the settled rule was that a court of record was the sole and exclusive judge

of what amounted to a contempt of court: Rainy v. The Justices of Sierra Leone (1853) 8 Moo

P.C. 47, 54; 14 E.R. 19, 21. That may be one reason why attempts to appeal in such cases always

seem to run into difficulties: see R. v. Foster, ex. p. Gillies [1937] St.R.Qd. 67 (which was an

appeal from a conviction in the Supreme Court); but what was said in Rainy no longer represents

prevailing attitudes on the matter. It may be assumed that it would now be considered to be an

“unreasonable” result of the ordinary meaning of s.118(1) if it altogether excludes the power of

this Court to grant leave to appeal against a conviction for contempt of the kind and in the

circumstances disclosed here. It would invest in the District Court a practically unlimited and

unreviewable power of deciding to penalise a member of the Bar for something done or said in

the course of representing a client in court. Conduct by other persons punished under s.129

would also be beyond review. Such a result would appear even more unreasonable when it is

borne in mind that, under s.118 as it stood before 1 August 1997, a decision to convict someone

under s.129(1) was regarded as susceptible of appeal by leave of this Court. No one is immune

from the risk of making errors and, when they do so in exercising the power conferred by

s.129(1), there ought to be some means of correcting that state of affairs. If community interest

is the test for determining what is or is not unreasonable under s.14B(1)(b), then that criterion

is satisfied here.

Such a conclusion would be sufficient to authorise a court, which is in the process of

interpreting a provision such as s.118(1), to take at least the first step of giving consideration to

the extrinsic material constituted by and contained in the explanatory note in this case. When

consideration is given to it, it can be seen that the author of the note regarded s.118 as encompassing “rights of appeal in both civil and criminal proceedings, except appeals following

a criminal trial on indictment”. The reason given for that exception is that the rights of appeal

following trials on indictments are contained in chapter 67 of the Criminal Code. In so far as it

is relevant, there is no reason to doubt the correctness of that observation. Section 668D, which

forms part of that chapter, gives rights of appeal to persons convicted on indictment, including

an appeal by leave against a sentence passed on such a conviction. It might ordinarily be difficult

to regard a sentence imposed after a plea of guilty as necessarily following “a criminal trial”; but

in s.1 of the Code there is a definition of “trial” which includes a sentencing proceeding, and it

was probably with that in mind that the author of the note spoke of a “trial” on indictment.

What are thus excluded from the category described in the explanatory note are orders

made in the exercise of the original criminal jurisdiction of a District Court that do not follow

a criminal trial on indictment. An offence dealt with under s.218 of the Racing and Betting Act

1980 may possibly be an instance of that kind (cf. s.218(2), which provides for trial by a judge

sitting alone); but s.237(5) of that Act appears to contemplate that the ordinary course of

committal, and therefore of indictment, will also apply in that instance. Convictions for

contempt appear to be the only readily identifiable case of a judgment given in the District Court

exercising criminal jurisdiction that does not follow a trial on indictment. Hence, it is said that

what the explanatory note demonstrates is that such convictions were not intended to fall within

the exclusionary ambit of s.118(1).

The critical question is, however, whether, having considered the explanatory note in

interpreting s.118(1), the court must then construe that provision in the manner that is suggested

by the note. Section 14B(1)(b) does not in terms require the court to do so. It says no more than

that consideration may be given to extrinsic material, comprising in this instance the explanatory

note, that is capable of assisting in the interpretation of a statutory provision in order “to provide an interpretation” of the provision if it avoids a result that is manifestly absurd or unreasonable

that would result from the ordinary meaning of that provision. Even assuming that, as has

already been said, it is an unreasonable result that there should now be no avenue of appeal from

a conviction for contempt, it is not immediately apparent how the explanatory note can be said

to “assist” in the interpretation of s.118(1) or provide some other interpretation of it. The terms

of the provision and, consequently, its interpretation are clear, and the process of interpreting it

requires no assistance from any other source. Its meaning is that s.118 is not to apply to an

appeal from a judgment of a District Court exercising criminal jurisdiction. That is not merely

the “ordinary” meaning of s.118(1), but the only meaning that it is capable of being ascribed to

it. To add, for example after the words “judgment” in s.118(1), the words “following a criminal

trial on indictment” is not simply to interpret the provision in order to avoid an unreasonable

result. It is to displace or alter the meaning of the provision by inserting words that are absent

from s.118(1) with a view to restricting the scope or ambit of its operation.

To undertake such a course is not to interpret the provision but to amend it, which is

a function that it is for Parliament to perform. Of course, it is true that courts and judges are the

servants of Parliament in interpreting and giving effect to the legislation it has enacted including

s.14B(1)(b) of the Acts Interpretation Act. It may be that, in the amplitude of the legislative

power it undoubtedly possesses, it would be possible for the legislature to delegate to the courts

a power of altering statutory enactments: cf. Cobb & Co. v. Kropp [1967] 1 A.C. 141. Deciding

whether or not there should be a right of appeal in a particular matter in which no such right was

given by statute would, however, involve a grant of power going well beyond the limits of any

judicial rule-making authority hitherto conferred on a court. It is well settled that the power to

make rules respecting practice and procedure does not authorise the adoption of rules the effect

of which is to enlarge or reduce the court’s jurisdiction. See Enid Campbell, Rules of Court, at 70-73. Questions of a constitutional nature, possibly both State and Federal, might well intrude

if such an expedient were to be adopted. One would therefore not be readily or naturally

disposed to assume that Parliament had envisaged such a result. That s.14B(1) of the Acts

Interpretation Act was not intended to do so is borne out by the provisions of s.14B(2)(a), to

which s.14B(1) is expressly made subject, which provides that, in determining the weight to be

given to extrinsic material, regard is to be had among other matters “to the desirability of a

provision being interpreted as having its ordinary meaning”. It is plainly not desirable that this

Court should be invested with a power to determine what appeals it must or may, or must not or

may not, hear. Despite what appears to be the unreasonableness, in a general sense, of s.118(1)

in withholding an appeal even by leave in a matter like this, the essentially interpretative function

of s.14B(1) should not be regarded as conferring on this Court a power to amend s.118(1) in

order to avoid what may well be an unsatisfactory result in this case.

It follows from what has been said that there is no power in this Court under s.118(3)

of the District Court Act to grant leave to the applicant to appeal against the judgment convicting

or fining him under s.129 of that Act. Any such power is excluded by s.118(1) of the Act.

Enough has been said to demonstrate that the matter is one meriting the intervention, and indeed

the active and rapid intervention, of the legislature to correct the state of affairs revealed here.

It was at one stage of the hearing intimated that the application might perhaps be adjourned

indefinitely to enable appropriate legislation, presumably having retrospective effect, to be

enacted. The objections to adopting such a course are self-evident, and reported authority on the

subject is opposed to it. See Clifford Sabey (Contractors) Ltd. v. Long [1959] 2 Q.B. 290; R. v.

Whiteway, ex p. Stephenson [1961] V.R. 168, 171, where Dean J. quoted the statement of Starke

J. in Ramsay v. Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. 54 C.L.R. 230, 253, that

“Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future”; as well as the decision of

the Ontario Court of Appeal in Boyd Builders Ltd. v. City of Ottawa (1964) 45 D.L.R. (2d) 211,

215. These decisions are referred to in de Smith’s Judicial Review of Administrative Action

(4th ed.), at 342 n.14. The underlying risk is that a state of affairs might develop in which there

was one law for litigants who are politically influential, and another for those who are not.

Nothing of that kind is suggested against (or in favour of) the applicant here; but it is necessary

that the integrity of the principle should be maintained.

It is not possible or desirable at this stage to pass upon the merits of an appeal which,

for the reasons given here, we have no authority to entertain. The application for leave to appeal

should be refused. On the other hand, I agree with Davies J.A. in thinking that it is possible to

proceed to a hearing of the motion as in substance an application for an order nisi for certiorari

under s.29 of the District Court Act. The power of this Court to grant an appropriate form of

relief where another has been applied for is supported by R. v. Pine Rivers Shire Council, ex p.

Raynbird [1967] Qd.R. 384, 399; cf. also R. v. T. [1995] 2 Qd.R. 192. It follows that I agree with

the order proposed by Davies J.A. at the end of his reasons for judgment.