Graham, N.W. v Ninness, R.T

. --,

. .

- 1

Court of Petty

Sessions - re5pondent

consent

dealt

with

ql.lmmarilv for an Indictable offence

- appeal to the Supreme Court

of Australian Capital Territorv said to be Incompetent - consideration of relevant provisions nf Ordinance in force at

relevant tims (note: prorvis~ons

of Ordinance slnce amended).

roram: Sheppard. ?leaves and Miles .JJ

1 D,Xte : 12 March 1986

l
I	Place: Canberra

I -

' :

NJSTRALIAN CAPPIT-AL TEPRITORY

DISTRICT

REGISTRY

No. ACT G5 of 1985

GENERAL DIVISION

V ' ~

! '

,JTJDGES VAKING

ORDEF:

Sheppard. NTeaves and Miles J J .

I	I	DATE OF @RDEX	:	1 2 March 1986
l

I	FWERE ORDER MADE	: Canberra	l .
I	i	i '
I

TrlINTJlTS OF ORDER	. ..
r
I ,

THE COUFT

ORDERS

THAT:

I	1.	The appeal be dismissed.
I
l

ATJSTRALIP-! CAF1TP.L TEFPITORY

)

FEGISTRY	DISTRICT	)	Nn. ACT G5 of 1985
>

r m : Sheppard. Neaves and Miles

J J

D=	: l2 March 1986

proceeded accordinnlv.

the notice of appeal c @ the SIlpreme Court was filed

the

respondent on

10 Februarv 1993 followinn his conviction and

sentence on the previous day.

it is necessarv to determine the

ailestion that,

srises on the ,appeal by reference

to the relevant

lenislative

provisions

for re

at, that

time.

Ne refer

passinn,

however. t o

the Crimes (Amendment) Ordinznce

(No. 3,

1985 which repealed s s . 476, 477.

477A and 473 nf the crimes Act

m d repl.aced

them with

new sections and

t o the Co~urt of Fettv

Sessions

(Amendment)

Ordinance

CWo.

3 )

1985

which

effected

amendments

to ss .

92 and 208

n f the Court

o€

Pettv Sessions

nrdlnance 1930. These provisions have put beyond doubt that an a p p e a l lies in a case such as the present b u t , of course. on117 as to c<ases arisinn after the amendments came into force. It is

perhaps unnecessarlr to say that

the

amendlny provisions a r e no+,

of relevance to the questinn nf construction which confronts

I .E.

section 59 o€ the crimes

Act has at all materla1 times

provided

that

whosoever

assaults

any

person,

and

therebp

occasions actual bodily harm.

shall be liable to imprisonment for

five vears. An offence under

S ,

59 is an

indictable offence.

However. Part

171 of the

colurt of Fett-7 Sessions Ordinance 193n

("the

Ordinance") makes provislon for the

hearinrr of

certain

indictable offences in

sclamary

way by

the Court of Fettv

Sessions,

'That provision

found

S. 92 which. at the

relevant time and

so far as material, 9rovlded:-

" 92 .

(1) Where

the Court 1 s of the opinion that

the evidence for the prosecutinn has established

a prima facie case acrainst the accused person in

respect of an indictable offence, the

Court

shmll

charue the accused person with such offence and

l i )

if it appears to the Court that the case may

be prope r ly dealt with summarily. and

........ ........ ........ ........ ........ ...

(b)

if the offence is one which mav be

dealt wlth summarilv

if the accused

person cnnsents to

it, beina CO dealt

with and the accused person does	so
consent:

........ ........ ........ ........ ........ ...

shall ask the accused person if he has anv him and thereupon the C o u r t shall proceed tc

c . w s e t~

show whv

he should not be convicted

o r whv

an order should not be made aaainst

hear and determine the charae in the manner

hereinafter

provided

for

hearina

and

derermlnina an informatlon:

Provided that if the defendant

does not

admit

the truth

the charrre,

the

depositions of

rhe witnesses

who

cra77e

evidence for the prosecution

shall be deemed

f i

to be evidence criven on the hearina of the

charme and those	witnesses, or anv of them.	I .
I

Thall, If so reauired bv the prosecutlon o r the defendant, be called o r recalled, as the case mav b e . examination €or or cross-examination:

I .;

l ,

4 .

and determine t .he

:harae

in the

manner hereinafter provided for

hearina and determinina

an information". Those provisions were

to be

found in Part VI1 of the Ordinance entitled. "PROCEEDINGS

IN CASE OF OFFENCES PUNISHABLE	SUMMARILY". The relevant sections	!
I .
.-

nf Part VI1 were s s . 113 - 116. It is unnecessarv to refer to	!. I
the detail of these provisions. The important thincr to note is

t.hat,

the procedure vhlch the Court was

to adopt

when dealim

summarilv with an offsnce which would

otherwise have been t r l ed

on indictment

r;as

simllar to the procedure

it adopted %hen

hearina and determinina an information for an offence which was

only punishable summarilv.

L .

The provisions of the Ordinance providina for an appeal

from

the Court, of Pettv Sessions to the Supreme Court were ar, the relevant time to be found in Parr, XI entitled. "P-VQT XI - APPEALS

TO THE

SUPREME COrJRT" .

The relevant sections were

s s . 207 and.

208 which comprised Division

1 and part of Ijivision

2 of Part

XI.

Those provisions, so f a r as thev sre relevant. vere as follows:-

"Qivlsion l - The

Appellate Jurisdlction of the

Supr eme

Cour t

207 .

(1) m e appellate

jurisdiction

the

Slupreme Cour t with respect

to decisions of the

C o ~ . ~ r t of

P e t t y

sessions under this nrdinance

extends to

the hearinrr and determination of the

followna appeals and no others. namelv:

(a) appeals to which Division

2 of this Fart

applies :

and

l b l

sppeals from decisions of the Cour t of Pettv Sessions by way of orders to review msde in accordance with Divlsion 3 of this Part.

Divisiun 2 - Atweals

208. (1) Each of the followinu appeals is an

apppal to which this Division

applles -

an appeal, by the person convicted, from a

conviction f o r an

offence dealt with bv the

Court

of Pettv Sessions under Part

VI1 or

tinder section two hundred and fifty-five of

this Ordinance:

an	appeal. bv the person aaainst whom the

order is made,

from

order

made

pursuance

section

one

hundred

and

thirteen or section one hundred snd fourteen

of thls Ordinance in proceedinus dealt with

hv	the Court of P e t t ~	Sesslons lmder Part
VTI :

an appeal from

a sentence o r penaltv imposed

hv the Court of Pe t ty Sessions bv

a person

convicted of

an offence dealt with bv that

COl.1L-t llnder section ninetv A or two hundred and fifty-€ive of this Ordinance or under

Part VIS. cjhether or not that person appeals

affalnst the conviction in respect of which

the sentence or penalty	was Imposed:
. ..

Of the provisions of the Ordinance referred to in the above quoted paraffraphs of sub-sec.

208(1)

it is

only

nececsarv to

refer to S . 90A of the Ordinance which is mentioned in

para. (c).

Section 9OA

provided in sub-sec. (1) chat

a person who appeareci

o r was broucrht before a Court of Pettv Sesslons charued with an Indictable offence. not beinu an offence punishable bv death o r penal servitude f o r life, miuht at anv staae of the proceedinus

plead rruiltv

to the

charue and. upon the accused person

I ..

6 . i: l '

pleadinq uui

ltv. the Court should proceed in accordance with the

succeedinu provisions of the section. Paracrraph 208(l)(c) of

the

I-

Ordinance thus operated to confer a ricrht of appeal. but aaalnst	I .
I

sentence onlv, upon a person who

had pleaded auil%v

to an

indictable offence and been sentenced bv the Court of Petty

Sessions.

_ _

now possibl?

to state the matter upon which the

Tppellant relies in support of his submission %hat there w3.s no

I ..

competent appeal

from

the

conviction

to the Supreme

Court.

Because of che provisions of

S. 207.

there could be

no appeal

I.lnless the matter fell within one of those specified in S. 205.

Division

3 . havim

no application t o

the circumstanccs of the

present cxie.

The nnlv relevant provision of

S. 205

could be

para. (l)(a) which provided for

an appeal bv the person convicted

from	a conviction "for an offence dealt with bv the Court of	.	..
,	_./

PTttv Sessions under Part VI1 . . . of the Ordinance". The	i.
appellant's point is that these proceedinus were under Part VI, not Part VI1 of the Ordinance. with the consequence that there

was no appeal.

the submission

the respondent there was an appeal

because, althouuh It Gas Part VI of

the Ordinance Ghich enabled

the matter to

heard summarllv before the Court of Pettv

Spssions. the matter was heard.

was recrulred bv

9 2 , I

section in Part

VI,

in the manner provided

for

hearinq and

determinina an information.

that

accordance

with

the

7 .

procedure provided for In

s s .

113 -

116.

That was

a matter

provided

f o r

Part VI1

and. it

followed that. wlthln the

Iancruaue used in para. 208(1)La), the respondent

was

appealinu

from a conviction for

an offence dealt with bv the Court of Pettv

Sessions under Part

VI1 of the Ordinance.

That was the

view

which the l?arned primary Judae adopted.

Both parties referred.

the leuislatlve historv of the

provisions of s s . 207 and 208 of the Ordinance and it is necessarv to refer to that historv. Before doinrr so, however. it mav be noted in passina that it would seem stranue If no appeal

lav. Part

VI enables certain indictable offences

to be dealt

with summarilv. These offences. In the nature of thinus. are

llsuallv more

serious than offences which are punishable onlv

simmarilv.

PIormallv, the maximum penaltv for such

offences, even

where dealt with

sr.~mmarilv. will be ureater than

for

offences which

mav onlv be dealt

with summarilv. [JndoubtedIv

there was an appeal auainst

conviction for an

offence whlch

miuht only Imderstand whv the leuislature would

dealt

with

summarilv.

is difficult tn

not have intended chat there

be an appeal a lso in the case of

an offence. in this case

assault. which was

an indictable offence. Furthermore, if the

appellant's arcrument be

riaht, there was not onlv

appeal

.irrainst conviction: there was no appeal aualnst sentence.

>main

this would seem a stranue result. particularlv as t.here woilld have been an appeal auainst sentence in a case where a plea of auiltv had been entered: S . 90A and para. 208(l)(c) of the

Ordinance earlier referred to.

If the matter went to trial

indictment and there were a

conviction. an appeal would lie from the Supreme Court to this

Court both in relation

to the conviction and sentence.

It is

true that the crrounds of appeal would be limited and the matter

would not be in the nature of a rehearincr.

That is because the

matter would have been tried

iurv. Nevertheless there

are

=a.tbstantial appeal ricrhts crlven

a person convicted of

a crime on

indictment.

Thus it would appear. if the appellant's arcrument be

' I

riaht,. that. under the leaislatlon in question, there could have been no appeal in the case of an indictable offence dealt with

sllmmaril!r

either acrainst conviction or sentence. but there was

. I

appeal if

the offence were dealt with

xndictment or were not

an indictable offence and were dealt

with summarilv bv the Court

of Petty

Sessions

under

Part

VI1 of the

Ordinance.

Those

considerations lead us

to chink

that the appellant's arcrument

must be looked	at closelv.	i
I .

IJntil 1972 there could have been no doubt that

an appeal lay

the

Supreme Court from

convictions

and sentences imposed

,sllmrnarllv whether in respect of offences whlch

micrht

have been

tried on indictment or offences which were summarv offences onlv.

,Tl!risdic%ion was rllricrinallg conferred upon t'ne Hicrh Court of

Australia to entertain appeals from the Court of Pettv Sessions

(Ordinances Nos. 10

and 21 of 1930).

After the creation of the

Supreme Court of

the Australian Capital

Territory, provision was

9 .

i	I	made for	appeals from the Court of Pettv Sessions	t o that Court
I
I

(Ordinance No. 28 of

1937). Substantlal amendments were

made to

the Ordinance in

1972 (Ordinance No.

37 of

1 9 7 2 ) .

Sections 207

and 208 then took the form relevant to this appeal.

The learned primarv .Judue has pointed to

the reason whv the

1972

amendment was thouuht necessary. In

1969

there were two

decisions of the

Supreme

Court

of the

Australian Cwital

Territorv. K_ellv

v. Russell

( 1 9 6 9 ) 14

F.L.R. 255 (Fox

J.) and.

applebee v. R. (1969) 14 F.L.R. 444 (Kerr J.).	It was there held
that a person who had pleaded quiltTT before	a court of petty

sessions miuht appeal aaainst his conviction. 3rd on the appeal

insist that his cruilt be established by the respondent.

In the

I I I

second of the ca5es Kerr J. relected a submisslnn made on behalf

n f the Crown that. as the appellant had pleaded uuiltv before Yae Court of Pettv Sessions. he could not appeal amainst his

~:onviction in such a

wav as

to put the

C r n k n to proof

of hls

auilt. but could only appeal aaainst the sentence imposed..

seems likelv that

Part XI of the Ordinance was amended in

1972 in

nrder to provlde more specificallv

fcsr the rlcrhts of appeal which

1-onvicted persons were

t o haave to the Supreme Court. Certainlv

the new provisions were very much

more specific than were those

xhich were in force when the two cases referred to were decided.

DesDite the specificitv of the provisions. one would. not

readilv infer. particularlv

the liuht of

the

legislative

10.

riuht of appeal which had previouslv existed

in cases such as the

present. There is no reason apparent to us whv that should

have

I	been the legislature's intention.

Notwithstandinu

these

considerations

there

are problems

raised

the

appellant's

submissions

which

do provide

.__..

difficulties €or the respondent. These derlve from the lanuuaue

of the provision. In the submission of the appellant the effect

of the use of the words in sub-sec.

9 2 ( 1 )

of the Ordinance, "to

hear

and

determine

the

charue

the

manner

hereinafter

provided". was to import into Part VI the procedures set forth

Part VI1 so far as thev were applicable.

But. in the submission

of the appellant,. such an

importation did not make the offence

one which was "dealt with ... under Part VIZ" within the meaninu

of para.

208(l)(a). The words. "in the manner

. . . orovided for

. . . " , must

be criven

effect to.

It was submitted that such

phrase was appropriate to brinu into Part

the provisions

dealinu

with

proceedinus

cases

of offences

punishable

summarilv. but not appropriate to describe

a proceedinu in which

a person was charaed with an indictable offence, but dealt with

summarilv. as beinu dealt with under Part VII. In short it was

1	the appellant's	submission that the ordinarv	meanincr of the
i

lanauaue used

in sub-sec. 92(l) was that the procedure proriided

€or in Part VI1 was picked 1up and incorporated In Part

VI.

followed, accordinu to the submission. that the offence

was not

. dealt wlth under Part VI1

but under Part VI.

Accordinulv. the

i	.appeal was an appeal auainst a conviction under Part, VI and

11.

therefore incompetent.

I L

The respondent

approached

the

matter

from

a different

direction. According to his submisslon. once the conditions of

sub-S.

92(1) were met, the Court of Pettv Sessions' function

lmder the section was at an end and its further adjudication on

the case

was pursuant to Part

VII.

There was no

provision in

Part VI providlnu for the procedures	t o be adopted on the further	I
i . .

hearinu except those

which

indicated the application of the

appropriate provisions of Part

VII.

The respondent referred to

the fact

that he

had uiven evidence before the Court, of

Pettv

Sessions. There was no provision in Part

VI enablinu hlm to take

that course. Clearly, accordinu to the respondenc's submission,

he was exercisinu the riuht conferred on him in Part 1711 bv S.

114. In summarv

the

respondent

submitted

that

once

the

conditions of S. 92 were met. the further hearmcr took place, and

could onlv take place. pursuant to Part VII.

The learned primarv

8Judmre preferred the respondent's submissions savinu.

"It seems to

me ta be normal

in ordinarv lanuuaue to refer

tn such a person as

havinu been dealt

with under Part VII".

In our opinion the competinu submissions of the parties on

the lanauaue which is used demonstrate that the lanuuaue in

question is ambiuuous. The Lanquaue is capable of sustaininu

either construction. althouuh. if the matter were to be decided

by considerinu che lanuuaae alone, we would be inclined to adopt

the construction contended for bv the appellant. But there beinu

' .

12.

an ambiuuitv. one needs to

look at matters such as the historv of

the leulslation, the purpose and intendment of the Ordinance and.

most importantlv, to

the question of whether one construction

the other will have an arbitrary or capricious effect.

Fle have

earlier

alluded

the

fact

that

the

sustaininu

the

appellant's aruument, would have some curious results. FirstlTr.

person charued with

an offence under

S . 59

of the Crimes Act

would have had an appeal auainst conviction if the offence were

tried on indictment but would not

have had

an appeal if the

nffmce

had been dealt with summarily. Furthermore.

he would

have had

an appeal auainst sentence if

he had. pleaded uuiltv to

bhe nffence, but no .appeal arrainst sentence

had been

convlcted after

entermu a plea of

not nuiltv. And

a person

charaed wlth

an offence which miuht

onlv have been

dealt with

summarily would have had

an appeal because the matter had clearlv

arisen under Part

VI1

of the Ordinance. Yet

person charued

wlth a

more serious offence such as assault occasioninu actual

bodilv harm under

S . 59

of the Crimes Act would not.

There

appears to u s to

be no legislative purpose or reason discernible

I n such

a result which would

hiuhlv capricious.

For those

reasons we prefer

the

construction

contended

for

the

respondent and adopted

bv his Honour.

Before

conclude.

should

mention

that

his

Honour

considered that the

respondent, was entitled to succeed on

around separate and independent of that relied upon before

us.

That uround was not the subject of arcrument before

1-15.

We have

, .

13.

not	therefore.	consid	,ered it and do not express	anv view upon
it.

Tn the

result, the appeal is dismissed. The appellant is

pay the respondent's costs thereof.

I cert l fy that thlb ana ttlr

preceG:.btg

pages are a true copy of the reasons for

judgment hereln

of the Courc

LW--	#&cAiee

/Y&&e./L/

/ seL

[1986] FCA 98

3 Dec 1986