Byrnes v The Queen

Case [1999] HCA 38

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

MARTIN FRANCIS BYRNES  APPELLANT

AND

THE QUEEN  RESPONDENT

Byrnes v The Queen [1999] HCA 38
12 August 1999
A44/1998
A17/1994

ORDER

  1. Appeal allowed.

  1. Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of South Australia on 17 June 1998, and in their place order that the appeal to that Court be dismissed.

  1. Application for special leave to appeal:

a.from the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 2 May 1996; and

b.from that portion of the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 21 April 1994 dismissing the applicant's appeal in respect of his conviction on count 2 of the indictment

refused.

On appeal from the Supreme Court of South Australia

2.

Representation:

T A Gray QC with A L Tokley and M A Perry for the appellant (instructed by Haarsmas Lawyers)

D M J Bennett QC, Solicitor-General for the Commonwealth with S J Gageler and S J Maharaj for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Intervener:

B M Selway QC, Solicitor-General for the State of South Australia with L A P Grenfell intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

TIMOTHY PAUL HOPWOOD  APPELLANT

AND

THE QUEEN  RESPONDENT

Hopwood v The Queen
12 August 1999
A45/1998
C7/1999

ORDER

  1. Appeal allowed.

  1. Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of South Australia on 17 June 1998, and in their place, order that the appeal to that Court be dismissed.

  1. Application for special leave to appeal from the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 2 May 1996 refused.

On appeal from the Supreme Court of South Australia

Representation:

T A Gray QC with K V Borick and G B Hevey for the appellant (instructed by Hume Taylor & Co)

D M J Bennett QC, Solicitor-General for the Commonwealth with S J Gageler and S J Maharaj for the respondent (instructed by Commonwealth Director of Public Prosecutions)

2.

Intervener:

B M Selway QC, Solicitor-General for the State of South Australia with L A P Grenfell intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Martin Francis Byrnes v The Queen
Timothy Paul Hopwood v The Queen

Constitutional law - Inconsistency between Commonwealth and State laws - Conferral of functions on Commonwealth Director of Public Prosecutions by State…

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Details
AGLC
Byrnes v The Queen [1999] HCA 38
Case
[1999] HCA 38
Decision Date

CaseChat Overview and Summary

The case of *Byrnes v The Queen* and *Hopwood v The Queen* involved appeals to the High Court of Australia concerning the prosecution and sentencing of the appellants for offences under the Companies (South Australia) Code. The prosecutions were initiated by the Commonwealth Director of Public Prosecutions (CDPP), and the CDPP subsequently appealed against the sentences imposed by the District Court of South Australia to the Court of Criminal Appeal of South Australia. The central dispute revolved around whether the CDPP possessed the legal authority to institute such appeals and whether the Court of Criminal Appeal had the jurisdiction to hear them.

The High Court was required to determine several key legal issues. Firstly, it had to consider whether the South Australian legislature had validly participated in the national corporations law scheme, or if its actions amounted to an unconstitutional abdication of legislative authority. Secondly, the Court needed to ascertain whether offences prosecuted under the former Companies (South Australia) Code were to be treated as offences against a law of the Commonwealth for the purposes of constitutional provisions, specifically section 80 of the Constitution. Finally, and crucially for the outcome, the Court had to determine whether the CDPP was empowered by the relevant Commonwealth and State legislation to appeal against sentences imposed for these offences, and consequently, whether the Court of Criminal Appeal had the jurisdiction to entertain such appeals.

The High Court reasoned that the legislative framework governing the transition from the co-operative scheme to the national corporations law scheme was complex. It found that while section 91(1)(b) of the *Corporations (South Australia) Act 1990* (SA) facilitated the performance of functions and exercise of powers by the CDPP in relation to co-operative scheme laws, the existence of such powers ultimately depended on Commonwealth law. The Court examined the *Director of Public Prosecutions Act 1983* (Cth) and concluded that it did not, in terms, confer any powers or functions on the CDPP in respect of "co-operative scheme laws." While section 9(7) of the *Director of Public Prosecutions Act 1983* (Cth) grants the CDPP rights of appeal in respect of prosecutions for offences against Commonwealth law, this provision was not applicable to the offences in question, which were State offences. The Court determined that the CDPP lacked the statutory authority to appeal against the sentences imposed.

Consequently, the High Court allowed the appeals. It set aside the orders made by the Court of Criminal Appeal of South Australia, which had allowed the CDPP's appeals against sentence. In their place, the High Court ordered that the appeals to the Court of Criminal Appeal be dismissed. The applications for special leave to appeal from earlier judgments of the Court of Criminal Appeal were refused.

Orders

Orders of the court

1.

Appeal allowed.

2.

Set aside the orders made by the Court of Criminal Appeal of the Supreme Court of South Australia on 17 June 1998, and in their place order that the appeal to that Court be dismissed.

3.

Application for special leave to appeal:

a. from the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 2 May 1996; and

b. from that portion of the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia dated 21 April 1994 dismissing the applicant's appeal in respect of his conviction on count 2 of the indictment

refused.

Background

Background to the litigation

The appellants were prosecuted by the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") and convicted of State criminal offences and sentenced in the District Court of South Australia ("the District Court"). The Commonwealth DPP appealed successfully to the Full Court of the Supreme Court ("the Court of Criminal Appeal") against the sentences imposed by the trial judge upon the present appellants. The jurisdiction of that appellate court and its description as a "court of criminal appeal" will be considered in Sections II and VII of these reasons. The appellants advance as principal questions in these appeals whether the Commonwealth DPP had the power to constitute and prosecute those appeals against sentence and whether there had been conferred upon the Court of Criminal Appeal the requisite jurisdiction to entertain those appeals. If the answers are in the negative, then the appeals to this Court should be allowed, the orders of the Court of Criminal Appeal should be set aside and the appeals to that Court be dismissed. We would have this Court make those orders. This conclusion is reached by following a thread through the eyes of several legislative needles, of both Commonwealth and State manufacture, until the thread breaks. It is convenient to take up the thread by looking first to the relevant facts.II THE FACTS In March 1993, the Commonwealth DPP laid an information against Timothy Paul Hopwood and Martin Francis Byrnes, the appellants, charging Mr Hopwood with one offence and Mr Byrnes with three offences under the Companies (South Australia) Code ("the State Code"). In South Australia, all indictable offences are charged on an information[1]. The events giving rise to the laying of the information against the appellants are set out in the reasons of Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes[2] and do not call for repetition here. [1]See Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), s 275.[2]R v Byrnes (1995) 183 CLR 501 at 504-508. By the time the information was laid, the State Code had been repealed by the joint operation, commencing 1 January 1991, of ss 85 and 87 of the Corporations (South Australia) Act 1990 (SA) ("the State Corporations Act"). However, the effect of s 85(1) was to continue the operation of the State Code in respect of the offences with which Mr Hopwood and Mr Byrnes were later charged and convicted. The general purpose of the new legislation was to provide for the replacement of that co-operative scheme with what is known as the national scheme. Part 13 (ss 81-96) of the State Corporations Act was headed "TRANSITIONAL". These appeals involve the operation of Div 2 thereof (ss 84-92), which is headed "CO-OPERATIVE SCHEME LAWS". The appellants challenge the effectiveness of measures purporting to draw within the scope of the national scheme prosecutions for offences under the former co-operative scheme, where an appeal against sentence is brought by the Commonwealth DPP. Indeed, at the threshold, the appellants attack the validity of the laws by which South Australia participates in the national scheme. They submit that the Parliament of that State has attempted to "abdicate" its legislative authority and has gone beyond its competence in seeking to do so. Submissions to like effect have been rejected on other occasions[3]. The same result should follow here.[3]Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 156-157; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-265; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 384; Gould v Brown (1998) 193 CLR 346 at 485-487.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIRBY J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

It is appropriate now to consider whether any other legislation extended this special jurisdictional regime to authorise appeals by the Commonwealth DPP against the sentence of persons convicted on information of State Code offences.VIII OPERATION OF THE STATE CORPORATIONS ACT The question arises as to whether the special regime created by s 352(2) of the CLC Act has been amended in all its incidents by s 91 of the State Corporations Act. The text of s 91, so far as material, is set out in Section IV. Section 91 is not in terms expressed to amend or repeal any other particular laws. Rather, it is an ambulatory provision conferring extensive prosecutorial powers on the Commonwealth DPP. The operation of this law must be ascertained and, to the extent that it thereby effects a change in the operation of an earlier statute, the several or "combined"[44] legal meanings must be identified.[44]Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 740; 152 ALR 540 at 565. It is convenient to consider the operation of par (b) of s 91(1) of the State Corporations Act before returning to consider the scope of the conferral by par (a) of "enforcement powers" on the Commonwealth DPP. Section 91(1)(b) reflects the terms of s 91 before amendment by the State Corporations Amendment Act. Section 91(1) then stated:"The [Commonwealth DPP] may, in relation to an offence against a co­operative scheme law, perform the functions and exercise the powers conferred on the [Commonwealth DPP] by the [Commonwealth DPP Act] as if the offence were an offence against a national scheme law of this jurisdiction."As explained in Section V, the mischief in the old s 91 to which the amendment was directed, by including what is now s 91(1)(a), was that it did not give to the Commonwealth DPP the same enforcement powers in relation to Co-operative Scheme Laws as the South Australian prosecution authorities. It thus would not have availed the Commonwealth DPP in the present case. Nor does s 91(1)(b). Paragraph (b) facilitates, as a matter of State law, the performance of certain functions and the exercise of certain powers conferred by the Commonwealth DPP Act. The question whether the power or function exists must be determined by reference to federal law. The Commonwealth DPP Act does not, in terms, confer any powers or functions on the Commonwealth DPP in respect of "co-operative scheme laws" or "national scheme laws", as defined in the State Corporations Act. Rather, as outlined in Section IV, s 6(2) of the Commonwealth DPP Act provides for a "mechanism" by which further functions may be conferred by or under any law of the Commonwealth or through proscription by regulation. As described in detail in Section IV, the conferral of powers in respect of "co-operative scheme laws" can be traced through ss 47(1) and 73 of the Commonwealth Corporations Act, reg 3(1) of the Corporations Authorities Regulations and, ultimately, to s 91(1)(a) of the State Corporations Act. It was submitted that s 9(7) of the Commonwealth DPP Act operated in conjunction with s 91(1)(b) of the State Corporations Act to confer the power to appeal against sentence on the Commonwealth DPP in respect to State Code offences. Section 9(7) provides:"Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him otherwise than under this subsection, such rights of appeal (if any) as are exercisable by the Attorney­General in respect of that prosecution." (emphasis added)