Harlovich v Sebbens

[2023] ACTSCFC 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

FULL COURT

Case Title:	Harlovich v Sebbens
Citation:	[2023] ACTSCFC 3
Hearing Date:	18 May 2023
Decision Date:	27 October 2023
Before:	Baker, McWilliam and Abraham JJ
Decision:	The questions referred should be answered as follows:

Question 1: In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?

Answer: Yes

Question 2: If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?

Answer: The residual discretion is not limited by s 219F(5) of the

Magistrates Court Act.

Catchwords: 

FULL COURT – CRIMINAL LAW – Whether residual discretion

applies to prosecution appeals from sentences imposed in the

Magistrates Court – whether s 219F(5) of the Magistrates Court Act 1930 (ACT) limits the residual discretion – application of the principle of legality – history of prosecution appeals against

sentences imposed in the Magistrates Court – no clear

indication of legislative intent to limit residual discretion.

Legislation Cited: 

Court of Petty Sessions (Civil Jurisdiction) (Amendment)

Ordinance 1984 (ACT)
Court of Petty Sessions Ordinance 1930 (Cth) Divs 2, 3
Court of Petty Sessions Ordinance 1972 (Cth) ss 4 and 10
Court of Petty Sessions Ordinance 1974 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW) s 68A
Crimes (Sentence Administration) Act 2005 (ACT) Pt 6
Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Crimes Act 1914 (Cth) ss 16A, 208(1)(e), 374, 375
Crimes Legislation Amendment Act 2008 (ACT)
Criminal Appeal Act 1912 (NSW) s 5D
Criminal Code Act 1924 (TAS)
Criminal Procedure Act 2009 (Vic) s 289(1)
Federal Court of Australia Act 1976 (Cth) ss 24, 28
Magistrates Court (Amendment) Act 1990 (ACT)

Magistrates Court (Appeals against Sentence) Ordinance 1990

(Cth)
Magistrates Court (Civil Jurisdiction) Ordinance 1982 (ACT)
Magistrates Court Act 1930 (ACT) Divs 2, 3; Pt 3; ss 219B(1),
219D, 219F, 219F(5)

Sentencing Legislation Amendment Act 2006 (ACT)

Supreme Court Act 1933 (ACT) ss 13, 37O
Supreme Court Amendment Act 2001 (No 2) (ACT)

Cases Cited: 

Adams v Navaratnam [2021] ACTSC 256
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244
CLR 638
Chapman v Cottle [2022] ACTSC 330
Police v Cadd (1997) 69 SASR 150
Gordon v Reddin [2013] ACTSC 87
CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
Courtney v Narjic [2021] NTSC 61
Cowie v Bacopak Pty Ltd [2022] WASC 14
Croatto v Banks [2015] ACTSC 398
Director of Public Prosecutions v Chatters [2011] TASCCA 8; 21
Tas R 26
Director of Public Prosecutions v JSP [2020] TASCCA 3; 282 A
Crim R 28
DK v Director of Public Prosecutions [2021] NSWCA 134; 105
NSWLR 66
DPP v Karazisis [2010] VSCA 350; 31 VR 634
Everett v The Queen [1994] HCA 49; 181 CLR 295
Fall v Vuolo [2022] ACTSC 249
Green v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Harlovich v Sebbens [2022] ACTSC 331
Harris v Leaman [2022] TASSC 28; 100 MVR 22
Harvey v Bofilios [2017] NTSC 68
Kaye v Siddiq [2013] ACTSC 62
Kirby v Ali [2021] ACTSC 95; 358 FLR 288
Knight v Birch (1992) 106 ACTR 27; 106 FLR 109
Lacey v Attorney-General of Queensland [2011] HCA 10; 242
CLR 573
Lyons v Bakes [2015] TASSC 37
Malvaso v The Queen [1989] HCA 58; 168 CLR 227
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Munda v Western Australia [2013] HCA 38; 249 CLR 600
Munday v Gill [1930] HCA 20; 44 CLR 38
Peel v The Queen [1971] HCA 59; 125 CLR 447
R v Chatfield [2012] ACTCA 32; 19 ACTLR 65
R v Faber [2020] SASCFC 49; 283 A Crim R 219
R v Flowers [2014] ACTCA 13
R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Nicholas [2019] ACTCA 36
R v Ralston [2020] ACTCA 47; 285 A Crim R 159
R v Tait [1979] FCA 32; 24 ALR 473
Rigby v Kotis [2018] NTSC 48; 273 A Crim R 485
The State of Western Australia v THN [2023] WASCA 18
Toop v Smart [2022] WASC 237
Weiss v The Queen [2005] HCA 81; 224 CLR 300
Young v White [2016] QDC 159

Texts Cited: 

Explanatory Memorandum to the Court of Petty Sessions
Ordinance 1972 (Cth)
Explanatory Memorandum to the Court of Petty Sessions

Ordinance 1974 (Cth)

Explanatory Statement to the Magistrates Court (Appeals
against Sentence) Ordinance 1990 (Cth)
Explanatory Statement to the Sentencing Legislation
Amendment Bill 2006 (ACT)

Parties: 

Gregory Harlovich (First Appellant)

Naomi Chapman (Second Appellant)
Carla Lee Sebbens (First Respondent)
Damien Cottle (Second Respondent)

Representation: 

Counsel

A Williamson SC (First and Second Appellant)

K J Edwards and J Cooper (First Respondent)
J Nottle (Second Respondent)

Solicitors

ACT Director of Public Prosecutions (First and Second
Appellants)

Aboriginal Legal Service NSW/ACT (First Respondent)
SCB Legal (Second Respondent)

File Numbers: 

SCA 10 of 2022

SCA 11 of 2022

Decisions referred: 

Court:	ACT Magistrates Court
Before:	Special Magistrate Hopkins
Date of Decision:	31 March 2022
Case Title:	Harlovich v Sebbens
Court File Number(s):	CC 6685/2021
Court:	ACT Magistrates Court
Before:	Magistrate Stewart
Date of Decision:	5 April 2022
Case Title:	Chapman v Cottle
Court File Number(s):	CC 2020/12887, CC 2020/12888, CC2020/12889, CC20201/3074, CC2021/5742, CC2021/8263

THE COURT 

Introduction 

1․ 

The issue before the Full Court concerns the existence and extent of the residual

discretion applying to appeals brought by the prosecution from the Magistrates Court in

the Territory.

2․ 

In the context of a prosecution appeal against sentence, the ‘residual discretion’ refers

to the discretion of an appellate court to refuse to intervene and re-sentence an offender,

notwithstanding that the prosecution has demonstrated error in the sentence imposed at

first instance: Green v The Queen [2011] HCA 49; 244 CLR 462 at 465-6 [1] and 471

[24] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General (NSW) [2015] HCA 9;

256 CLR 346 at 365-6 [54] (Kiefel, Bell and Keane JJ). For example, even where error

is established in the original sentence imposed, an appellate court may decline to allow

a prosecution appeal and resentence an offender where:

(i)  The prosecution contributed to the error in the court below, such as where the

prosecution resiles on appeal from a concession made at first instance (including

where the prosecution consented to a non-custodial outcome at first instance, yet

submits on appeal that a sentence of imprisonment should have been imposed),

or where the prosecution otherwise changes its case on appeal, or where the

prosecution did not assist the court below in avoiding error;

(ii)         The allowing of a prosecution appeal would occasion an unfair additional burden

upon the offender, such as where the allowing of the prosecution appeal would

undermine an offender’s progress towards rehabilitation, or where the offender

has been released (either unconditionally or on parole), or such release is

imminent;

(iii)        There has been a delay in the commencement, hearing or determination of the

prosecution appeal; and

(iv)        The prosecution’s selective invocation of appellate jurisdiction could cause

disparity between co-offenders.

See Green at 480 [43] – [44]; Munda v Western Australia [2013] HCA 38; 249 CLR 600

at 623-4 [72]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [80].

3․	The “limiting purpose” of a Crown appeal is “to lay down principles for the governance
and guidance of courts having the duty of sentencing convicted persons”: Green at 477-
8 [36]. This purpose provides a framework in which the residual discretion is to be
exercised, and may, of itself, provide a basis for the court to decline to intervene: Ralston at [100]. Accordingly, a court may decline to resentence where any guidance to
sentencing judges that would be occasioned by allowing the Crown appeal would be
limited, such as where the case is unlikely to arise again in the future, or where there is
little difference between the sentence that the appellate court would have imposed and
the sentence that was in fact imposed at first instance.
4․	The exercise of the residual discretion is concerned with issues of fairness and justice,
both to the individual offender and with respect to the administration of justice more
generally: Green at 480 [43]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24 [92]; DK v
Director of Public Prosecutions (NSW) [2021] NSWCA 134; 105 NSWLR 66 at 75 [38].
As Street CJ held in R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375 at 255, the
residual discretion “enables the court to keep an ultimate control by protecting a
convicted person against unfairness or injustice if that would flow from an adverse
appellate decision”. For this reason, the considerations which are relevant to the exercise
of the residual discretion are not confined to those outlined at [2] above: Ralston at [80];
JW at 23 [85].
5․	The onus is on the prosecution to satisfy the Court that this discretion should not be
exercised in favour of the respondent: CMB at 370 [66]. This, too, flows from a
recognition that the concern of the residual discretion is with issues of justice and
fairness. It is understandable that the prosecution, who seeks to invoke the jurisdiction
of an appellate court to increase a sentence, should be required to satisfy the appellate
court that the deployment of that jurisdiction will not occasion injustice or unfairness.
6․	It is well established that the residual discretion applies to prosecution appeals to the
Court of Appeal against sentences imposed by the ACT Supreme Court under s 37O of
the Supreme Court Act 1933 (ACT): R v Flowers [2014] ACTCA 13; R v Nicholas [2019]
ACTCA 36 at [115] – [118]; and Ralston at [41].
7․	Until relatively recently, it was also well accepted that the residual discretion applied to
prosecution appeals against sentences imposed by the Magistrates Court: see Knight v
Birch (1992) 106 ACTR 27; 106 FLR 109 at 115; Kaye v Siddiq [2013] ACTSC 62 at [35]
– [38]; Gordon v Reddin [2013] ACTSC 87 at [13]; Hall v CL [2015] ASTSC 286 at [129];
Croatto v Banks [2015] ACTSC 398 at [19]. However, in Kirby v Ali [2021] ACTSC 95;
358 FLR 288, Robinson AJ expressed doubt about that line of authority. Although both
the prosecution and the respondent in Kirby accepted that the residual discretion applied
to the appeal, his Honour stated that he was “not convinced” that the relevant Division of
the Magistrates Court Act 1930 (ACT) “adopts this body of law”: Kirby at [3] – [4].
8․	Since the decision in Kirby v Ali, different views have been expressed as to whether the
residual discretion applies to a prosecution appeal against a sentence imposed by the
Magistrates Court. For example, in Adams v Navaratnam [2021] ACTSC 256 at [39],
Loukas-Karlsson J declined to follow Kirby v Ali and held that the prosecution was
required to negate the residual discretion. Conversely, in Fall v Vuolo [2022] ACTSC 249
at [36], Kennett J indicated that he was “inclined to conclude” that the decision in Kirby v
Ali was correct.
9․	These competing lines of authority came to a head in the two proceedings which have
given rise to the present referral (Harlovich v Sebbens and Chapman v Cottle). In both
proceedings, the Director of Public Prosecutions (“the Director”), representing the
prosecutor in each case, appealed against sentences imposed in the Magistrates Court
on the ground that the sentences imposed by the Magistrates Court were manifestly
inadequate. (In Chapman v Cottle, the Director also alleged specific error in the
sentencing decision.)
10․	In the sentencing proceedings in Chapman v Cottle, counsel for the Director submitted
that the residual discretion had been excluded by s 219F(5) of the Magistrates Court Act.
Relying on the decisions in Kirby v Ali and Fall v Vuolo, counsel for the Director submitted
that “when considering a prosecution appeal against sentence where satisfied that there
was an error”, the Supreme Court “would be required to allow an appeal and re-sentence
an offender unless satisfied that ‘no different sentence was warranted’”. In contrast, in
Harlovich v Sebbens, counsel for the Director conceded that the residual discretion
applied.

11․ Both appeals were listed before Loukas-Karlsson J for hearing. Noting the

inconsistencies in the approach taken by the Director in each proceeding, on

1 December 2022, with the consent of all parties, Loukas-Karlsson J referred the

following questions to this Court for determination pursuant to s 13 of the Supreme Court

Act:

(i)      In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?

(ii) If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?

See Chapman v Cottle [2022] ACTSC 330 at [41]; Harlovich v Sebbens [2022] ACTSC

331 at [11].

12․	As will be discussed further below, in their oral and written submissions on the referred
proceedings in this Court, there was ultimately relatively little difference between the
parties’ positions. All parties agreed that the first question (whether there is a residual
discretion to intervene) should be answered ‘yes’.
13․	The only dispute between the parties concerned the answer to the second question
(whether the residual discretion is affected by s 219F(5) of the Magistrates Court Act).
The respondents both submitted that the answer to the second question should be that
the residual discretion is unaffected by s 219F(5) of the Magistrates Court Act. In
contrast, the Director contended that the second question should also be answered ‘yes’.
Given that the second question asks “to what extent” the residual discretion is affected
by s 219F(5), the answer proposed by the Director was somewhat non-responsive. As
discussed further below, the Director’s oral and written submissions did not clearly
articulate what aspects of the residual discretion were said to be affected by s 219F(5).
14․	For the reasons outlined below, we conclude that the two questions referred should be
answered as follows:

In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?

Answer: Yes

If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the

Magistrates Court Act 1930 (ACT)?

Answer: The residual discretion is not limited by s 219F(5) of the Magistrates Court Act.

Section 219F of the Magistrates Court Act

15․	Before turning to the parties’ submissions on the referral, it is convenient to first set out
s 219F of the Magistrates Court Act, which provides as follows (emphasis added):

219F	Powers of Supreme Court
(1)	On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the
Supreme Court—
(a) dismiss the appeal if satisfied that the decision of the Magistrates Court

should be confirmed; or

(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.

(2) If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme

Court may—

(a)	for a decision mentioned in section 219B (1) (d)—order that the
Magistrates Court commit the person to whom the decision relates to the Supreme Court for sentence under section 92A; or
(b)	for a decision mentioned in section 219B (1) (e)—order that the

Magistrates Court continue the committal hearing of the person to whom the decision relates in accordance with part 3.5; or

(c)

for a decision mentioned in section 219B (1) (f)—

(i)	impose the sentence or penalty the Supreme Court considers appropriate; or
(ii)	by order, exercise any power that the Magistrates Court might have exercised; or

(d)

in any other case—

(i)	remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or
(ii)	make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.

(3)

For the purpose of—

(a)	correcting any defect or error in the proceeding before the Magistrates Court; or
(b)	enabling the matter to be decided on the merits;

the Supreme Court may make the amendments of the proceeding in the
Magistrates Court it considers appropriate.

(4)

For subsections (1) (b) and (2) (c), the Supreme Court must not—

(a)	vary a sentence or penalty such that the sentence or penalty as varied could not have been imposed by the Magistrates Court; or
(b)	impose a sentence or penalty that could not have been imposed by the Magistrates Court.

(5)

The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court

considers that no substantial miscarriage of justice has happened.

(6)

On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted.

(7) If, in relation to a sentence or penalty mentioned in section 219B(1)(f), the Supreme Court—

(a) varies a sentence or penalty under subsection (1)(b); or

(b) imposes a sentence or penalty or makes an order under subsection (2)(b); the sentence or penalty as varied or imposed or the order made has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.

(8) On an appeal under this division from an order, decision, sentence or penalty mentioned in section 219B (1) (a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant.

(9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.

The parties’ submissions

16․	The written submissions of the parties helpfully summarised the history of the residual
discretion, including the legislative history of s 219F of the Magistrates Court Act and
previous decisions concerning the application of the residual discretion under ACT
legislation and legislation in other States and Territories. Without repeating the detail of
those submissions, the material that the parties provided was of great assistance in
construing s 219F and has been assimilated into our consideration of the proper
construction of s 219F below.
17․	Before turning to that analysis, it is convenient to briefly summarise the parties’ ultimate
submissions concerning the proper construction of s 219F.

The Director’s submissions

18․	As noted above, the Director accepted that s 219F(5) preserves the residual discretion
“in the general sense of a discretion on the part of the Supreme Court to decline to
intervene despite a ground in s 219D having been established.” He submitted that this
was “plain from the discretionary language of the provision” and its statutory context. The
Director unequivocally accepted that Kirby v Ali was wrongly decided.
19․	However, the Director stressed that the statutory text of s 219F(5) is more specific than
s 37O of the Supreme Court Act (which governs appeals from the ACT Supreme Court
to the Court of Appeal) or interstate legislation such as s 5D of the Criminal Appeal Act
1912 (NSW) (which governs appeals from the NSW District and Supreme Courts to the
NSW Court of Criminal Appeal). In particular, the Director placed emphasis on the text
of the proviso expressed in s 219F(5) of the Magistrates Court Act, which states that,
despite any finding of error, the Supreme Court may “dismiss the appeal if the court
considers that no substantial miscarriage of justice has happened”. The Director
submitted that this language is “concerned with the nature and effect of first instance
error”, and that the residual discretion should be seen as confined by this specific
language.
20․	In written submissions and in his initial oral submissions, Mr Williamson SC, Acting
Director of Public Prosecutions, argued that the “use of the present perfect tense” in
s 219F(5) temporally limits the relevant miscarriages of justice which may be considered
within the discretion to those occurring “at or around the time of the original sentence
being imposed”. If accepted, this submission would appear to exclude considerations
traditionally falling within the residual discretion, such as rehabilitation which has been
engaged in after the initial sentence but prior to the appeal, or prosecutorial delay in
commencing an appeal. However, in his subsequent oral submissions,
Mr Williamson SC appeared to accept that these kinds of considerations could be taken
into account by the Supreme Court when determining whether to exercise the residual
discretion.
21․	During the course of oral submissions, Mr Williamson SC also appeared to contend that
the language of s 219F(5) places the burden of negating the existence of a substantial
miscarriage of justice on the respondent to a prosecution appeal. The Court granted the
Director leave to provide further written submissions on this issue.
22․	In a short email provided on 19 May 2023, Mr Williamson SC indicated that he relied on
his written submissions, and that it was accepted that residual discretion principles
continue to “justify the obligation on the prosecution to negate the exercise of the
discretion”.
23․	In view of this email, we understand the Director’s final position to be as set out in his
written submissions. In particular, we understand the Director to submit that:

(i) Kirby v Ali was wrongly decided, and s 219F(5) of the Magistrates Court

Act does not exclude consideration of matters that are relevant to the

exercise of the residual discretion;

(ii)      Residual discretion considerations may be taken into account by the

Supreme Court in Div 3.10.3 review, but only as a part of the court’s

determination of whether “no substantial miscarriage of justice has

happened” in s 219F(5); and

(iii)     Many considerations that are traditionally relevant to the exercise of the

residual discretion may be taken into account by the Supreme Court in

determining whether s 219F(5) applies. These considerations will

include whether the prosecution caused or contributed to the error in the

court below, and whether the error identified had a “limited or immaterial”

impact on the sentence imposed.

24․	However, it remains unclear whether the Director contended that there are any traditional
residual discretion considerations which cannot be taken into account in the court’s
determination of whether there has been no substantial miscarriage of justice under s
219(5). In particular, it is not entirely clear whether the Director contended that
rehabilitation that has been engaged in after the initial sentence but before the appeal,
or prosecutorial delay in commencing the appeal, cannot be taken into account in making
a determination under s 219F(5).

Respondents’ submissions

25․	The respondents’ position was clear and may be briefly stated.
26․	The respondents submitted that the principle of legality requires that the residual
discretion be “read into any prosecution appeal statute unless it is excluded by clear
language”. They drew upon a comprehensive analysis of High Court, ACT and other
interstate authorities in support of their contention that nothing in the text, history or
purpose of s 219F evinces a clear intent to modify the residual discretion, as it has been
traditionally understood in cases such as CMB and Green.
27․	The respondents’ primary submission was that the residual discretion is located in
s 219F(1) and that s 219F(5) provides an additional materiality consideration. In
particular, the respondents submitted that locating the residual discretion in s 219F(1):

(a)	Accords with the text of the provisions;
(b)	Aligns the internal order of s 219F with established authority on the “order of the

appellate exercise for Crown appeals”;

(c)	Promotes the coherence of the Magistrates Court Act; and
(d)	Accords with interstate authority.

28․	In the alternative, the respondents submitted that if the residual discretion is located
within s 219F(5), that section has completely retained all of the principles of the residual
discretion as traditionally understood.

The proper construction of s 219F(5) of the Magistrates Court Act

History of principles relating to the residual discretion

29․	The history of principles relating to the residual discretion cannot be understood without
an understanding of the history of the right of the Crown to appeal a sentence.
30․	It is trite to commence with the recognition that an appeal is a creature of statute and not
a common law remedy: Lacey v Attorney-General of Queensland [2011] HCA 10; 242
CLR 573 at 578 [8]. No Australian statute provided for a right of the Crown to appeal
against a sentence until 1924, when New South Wales and Tasmania each enacted
provisions permitting an appeal against sentence: s 5D of the Criminal Appeal Act 1912
(NSW) and s 401(2)(c) of the Criminal Code (Tasmania), as introduced by the Criminal
Code Act 1924 (Tas); Lacey at 579 [10].
31․	The enactment of these provisions was met with some concern by the courts. In Peel v
The Queen [1971] HCA 59; 125 CLR 447 at 452, Barwick CJ observed that prosecution
appeals “cut across time-honoured concepts of criminal administration”. In Griffiths v The
Queen [1977] HCA 44; 137 CLR 293 at 310, Barwick CJ held that a prosecution appeal
“should be a rarity, brought only to establish some matter of principle and to afford an
opportunity for the Court of Criminal Appeal… to lay down principles for the governance
and guidance of courts”. These statements were affirmed in Malvaso v The Queen [1989]
HCA 58; 168 CLR 227 at 234 and Everett v The Queen [1994] HCA 49; 181 CLR 295 at
300.
32․	As the High Court observed in Lacey (at 582 [17]), these expressions stemmed from:

… a judicial concern that criminal statutes should not be construed so as to facilitate the

erosion of common law protection against double jeopardy. This was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms.

33․	In Lacey, the concern about eroding the protections of an accused in respect of
prosecution appeals against sentence found expression in the principle that, in the
absence of clear language to the contrary, legislation providing for a Crown appeal
against sentence must interpreted to require that the prosecution demonstrate error in
the sentence imposed by the primary judge: Lacey at 583 [20] and 598 [62].
34․	This concern with the protection of an accused against potential unfairness resulting from
a prosecution appeal against sentence also found expression in the recognition that an
appellate court has a residual discretion to refuse to allow a prosecution appeal against
sentence, even where error is shown.
35․	As expressed in Lacey, the concern was particularly associated with the erosion of the
common law protection against ‘double jeopardy’. Similarly, other early decisions
concerning the residual discretion referred to, inter alia, the injustice of exposing a
defendant to “double jeopardy because of an error affecting his sentence”: R v Tait [1979]
FCA 32; 24 ALR 473 at 388 – 389; see also Ralston at [30] – [31] and the cases cited
therein.
36․	In New South Wales and Victoria, the protection against double jeopardy was removed
by legislation: see s 68A of the Crimes (Appeal and Review) Act 2001 (NSW)
(considered in JW) and s 289(1) of the Criminal Procedure Act 2009 (Vic) (considered in
DPP v Karazisis [2010] VSCA 350; 31 VR 634). In some other jurisdictions, particular
provisions of sentencing legislation have been held to be inconsistent with double
jeopardy principles. In particular, double jeopardy principles do not apply in federal
prosecutions by reason of s 16A of the Crimes Act 1914 (Cth), which requires the court
to impose a sentence “that is of a severity appropriate in all of the circumstances”: see
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 at 651, [19] [20],
653 [25], 654 [29]”. Similarly, in the ACT, it has been held that double jeopardy principles
are inconsistent with ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT), which
respectively prescribe the purposes and considerations to be taken into account by a
court in imposing a sentence: R v Chatfield [2012] ACTCA 32; 19 ACTLR 65 at [72] and
Ralston at [37] – [40].
37․	However, the legislative denial of double jeopardy principles did not extinguish the
residual discretion: Munda at 628 [89] (Bell J), 622 [64] – [73] (French CJ, Hayne,
Crennan, Kiefel, Gageler and Keane JJ); Green at 472 [26]; JW at 25 [95]; Karazisis at
657 [99] – [100]; Flowers at [79] and Ralston at [41]. As outlined above, the residual
discretion is concerned with the avoidance of unfairness or injustice that may be
occasioned by the Court allowing a prosecution appeal against sentence. These
concerns extend beyond the narrow double jeopardy principles that were expressly or
impliedly removed by the legislation referred to at [36] above.
38․	It has been held that the residual discretion is an aspect of the principle of legality – that
is, “the presumption that Parliament does not intend to interfere with common law rights
and freedoms except by clear and unequivocal language for which Parliament may be
accountable to the electorate”: Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at
45 [43]; see Karazisis at [65] – [67]; Ralston at [83]. As counsel for Ms Sebbens
submitted, residual discretion principles are fundamental legal principles which are read
into generally worded appellate statutes unless displaced by clear and unmistakeable
language.
39․	For this reason, the residual discretion has been held to apply to legislation providing for
Crown appeals against sentence in all Australian States and Territories, despite
considerable differences in the texts of those statutes. In particular, the residual
discretion has been found to apply even where the legislation in question does not
textually distinguish between offender and prosecution appeals: Director of Public
Prosecutions v JSP [2020] TASCCA 3; 282 A Crim R 28 at [12] - [13]; Courtney v Narjic
[2021] NTSC 61 at [22]; Munda at 622 [64] – [73]; The State of Western Australia v THN
[2023] WASCA 18 at [52]; Police v Cadd at 157 – 158; Young v White [2016] QDC 159
at [12] – [13].
40․	The residual discretion also applies “with equal force” both in jurisdictions that impose a
leave requirement for prosecution appeals, and jurisdictions that do not impose such a
requirement: CMB at 368 [63]; R v Faber [2020] SASCFC 49; 283 A Crim R 219 at [77].
Indeed, in Karazisis, the residual discretion was found to apply even where the statute
in question (s 289(1) of the Criminal Procedure Act 2009 (Vic)) did not provide any
discretion for the court to refuse to intervene once error was shown. In particular, the
residual discretion was held to inhere in the requirement that the Director of Prosecutions
“satisfy” the Court that “a different sentence should be imposed”: Karazisis at 652 [73].
41․	In the ACT, Crown appeals against sentences imposed by the Supreme Court were first
introduced by ss 24 and 28 of the Federal Court of Australia Act 1976 (Cth) (“FCAA”),
which conferred broad appellate jurisdiction on the Full Court of the Federal Court of
Australia to “affirm, reverse, or vary” a judgment appealed from the ACT Supreme Court
or to “give such judgment, or make such order, as, in all the circumstances, it thinks fit,
or refuse to make an order”. Since the enactment of the Supreme Court Amendment Act 2001 (No 2) (ACT) in 2002, the ACT Court of Appeal has been the court to which appeals
from the Supreme Court lie by right. Like s 24 of the Federal Court Act, s 37O of the
Supreme Court Act provides a broad discretion to the Court of Appeal to “give any order
it considers appropriate or to refuse to give an order applied for”. These provisions did
not differentiate between Crown appeals and sentence appeals of an offender.
Nonetheless, in view of the broad discretion conferred, it is unsurprising that the residual
discretion was held to apply to the exercise of appellate jurisdiction under s 24 of the
FCAA (Tait at 475 – 477), and has been held to apply to the exercise of appellate
jurisdiction under s 37O of the Supreme Court Act: see Flowers at [78] – [79]; Nicholas
at [115] – [118] and Ralston at [41].

The application of the residual discretion to appeals against sentences imposed by courts of summary jurisdiction

42․	There are significant historical differences between proceedings on indictment and
proceedings in Courts of summary jurisdiction. As Dixon J observed in Munday v Gill
[1930] HCA 20; 44 CLR 38 at 86:

There is, however, a great distinction in history, in substance and in present practice, between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information, are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society.

43․	Despite these differences, it has been accepted that the residual discretion extends to
prosecution appeals against sentence from courts of summary jurisdiction: DK at 76 [44];
Rigby v Kotis [2018] NTSC 48; 273 A Crim R 485 at [6] – [13] and [54] – [71]; Police v
Cadd (1997) 69 SASR 150 at 157 – 158; Harris v Leaman [2022] TASSC 28; 100 MVR
22 at [4] and [17]; R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131 at [48].
44․	Some caution must be applied when considering these interstate decisions, which relate
to statutory provisions that are in different terms to s 219F(5) of the Magistrates Court
Act. For present purposes, it is sufficient to note that none of those decisions have
suggested that there is any feature of prosecution appeals against sentences imposed
in the summary jurisdiction, as contrasted with proceedings on indictment, that would
render the residual discretion inappropriate. Rather, the considerations of fairness which
impel the residual discretion apply equally to appeals from the summary jurisdiction as
to appeals against sentences imposed on indictment: see similarly DK at 75 [39], per
McCallum JA (as her Honour then was). As Issacs CJ (dissenting) observed in Munday v Gill (at 52), the entrusting of jurisdiction in summary matters to a single tribunal
determining both law and fact is “in no way destructive of the inherent principles of the
common law safeguarding the liberty and property of the individual when the Crown
seeks to punish him for an alleged breach of the criminal law”.

Text, structure and history of s 219F of the Magistrates Court Act

Text and structure

45․	Part 3.10 of the Magistrates Court Act confers jurisdiction on the Supreme Court to hear
criminal appeals from the Magistrates Court. The Act creates three different types of
criminal appeal: appeals in criminal matters (Div 3.10.2), reference appeals (Div 3.10.2A)
and review appeals (Div 3.10.3).
46․	Reference appeals concern proceedings on indictment, which are not relevant to the
present proceedings. There is, however, considerable overlap between appeals in
criminal matters under Div 3.10.2 and review appeals under Div 3.10.3: see Hall v CL
[2015] ACTSC 286 at [8] – [16]. Both Divisions provide for appeals to be brought against
convictions and sentences imposed in the Magistrates Court.
47․	The appeals which are the subject of the present proceedings are review appeals, within
Div 3.10.3 of the Act. Section 219B(1) of the Magistrates Court Act provides that an
“appeal by way of review” (defined as a “review appeal”) may be made in respect of
specified decisions, which at the relevant time, relevantly included:

(f) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375.

48․	Subsection 219B(2) defines a “sentence or penalty” as referred to in s 219B(1)(f) to
include a sentence or penalty imposed by an order of the Magistrates Court under Parts
3.2 – 3.6 of the Crimes (Sentencing) Act and Part 6.6 of the Crimes (Sentence
Administration) Act 2005 (ACT) (which deal respectively with sentences of imprisonment,
non-custodial sentences, non-association and place restriction orders, deferred
sentence orders, combination sentences and the amendment and discharge of good
behaviour orders).
49․	The grounds upon which a decision of the Magistrates Court may be reviewed are set
out in s 219D of the Magistrates Court Act. Those grounds relevantly include where there
is “a prima facie case of error or mistake on the part of the Magistrates Court” (s 219D(a));
the Magistrates Court lacked jurisdiction or authority to make the decision (s 219D(b));
the decision “should not in law have been made” (s 219D(c)) and, in respect of an appeal against sentence, where “the sentence or penalty was manifestly inadequate or
otherwise in error” (s 219D(e)).
50․	The orders which may be made by the Supreme Court on a review hearing are set out
in s 219F, which is extracted at [15] above. In summary, s 219F provides that the
Supreme Court may, “after considering the evidence before the Magistrates Court and
any further evidence called by leave of the Supreme Court”,:

(a) dismiss the appeal if satisfied that the decision of the Magistrates Court should

be confirmed; or

(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision

of the Magistrates Court.

51․ Further, s 219F(5) provides that:

The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.

52․	Section 219F(8) requires the Court to award costs against an appellant, whether or not
the Court allows or dismisses the appeal.
53․	It is important to observe that the powers conferred by s 219F apply to sentence appeals
bought by the offender as well as by the prosecution. Section 219F also applies to
appeals against conviction and appeals against orders dismissing an information:
s 219B(1)(a) and 219B(1)(b) of the Magistrates Court Act.
History
54․	As noted above, there is considerable overlap between criminal appeals and review
appeals under the Magistrates Court Act. Consideration of the proper interpretation of
s 219F must take account of the legislative history of both forms of appeal.
55․	As the Director’s written submissions helpfully summarised, the origin of the distinction
between criminal appeals under Div 3.10.2 of the Magistrates Court Act and review
appeals under Div 3.10.3 is found in amendments that were made to the Court of Petty
Sessions Ordinance 1930 (Cth) by ss 4 and 10 of the Court of Petty Sessions Ordinance
1972 (Cth) (“the 1972 Ordinance”).
56․	The existing Div 2 of Part XI (ss 208 – 219), had, since the establishment of the Court of
Petty Sessions (now the Magistrates Court) in 1930, provided for appeals from rulings,
orders, convictions, and determinations of that Court (originally to the High Court, and
later to the ACT Supreme Court). The 1972 Ordinance updated Div 2 by removing the
requirement for leave in criminal appeals and limiting appeals by way of rehearing in civil
appeals; and inserted the new Div 3 (ss 219A – 219F) which created a procedure for
appeals by way of orders nisi to review. In other words, Div 2, which by 1986 provided
for statutory criminal appeals, was the predecessor of Div 3.10.2, whilst Div 3, which
provided for appeals by way of orders nisi, was the predecessor of Div 3.10.3.

57․ In 1984, separate appeal procedures for civil actions were introduced into the

Magistrates Court (Civil Jurisdiction) Ordinance 1982 (ACT) by the Court of Petty

Sessions (Civil Jurisdiction) (Amendment) Ordinance 1984 (ACT), and in 1986, Division

2 of the Magistrates Court Act was amended by the Magistrates Court (Amendment) Act

1990 (ACT) to provide exclusively for criminal appeals against convictions, sentence,

bail and other orders.

58․	As originally enacted in the 1972 Ordinance, s 219C provided that the available grounds
of review included prima facie error, lack of jurisdiction, or where the decision should not
in law have been made. Section 219F provided for the powers to be exercised by the
Supreme Court in terms that are similar to the powers contained in the present s 219F.
Subsection 219F(1) provided:

(1)

On the return of an order nisi to review a decision of the Court of Petty Sessions, the Supreme Court, on consideration of the evidence before the Court of Petty

Sessions and any further evidence called by leave of the Supreme Court –

(a)	may, if satisfied that the decision of the Court of Petty Sessions should be confirmed, discharge the order nisi; or
(b)	may set aside or quash, in whole or in part, or otherwise vary or amend,

the decision of the Court of Petty Sessions and –

(i)      may remit the matter to the Court of Petty Sessions for rehearing or for further hearing with or without directions of law; or

(ii)     may make such further order, including an order granting any relief that the Supreme Court is empowered to grant on certiorari, mandamus, prohibition or habeas corpus, as the Supreme Court thinks necessary to determine finally the matter.

59․ As originally enacted, s 219F(3) was in similar terms to the present s 219F(5).

Section 219F(3) provided:

(3) The Supreme Court may, notwithstanding the ground or any of the grounds on which the order nisi to review a decision of the Court of Petty Sessions was granted has been established, discharge the order nisi if the Supreme Court is of the opinion that no substantial miscarriage of justice has occurred.

60․	It is apparent both from the nature of the available grounds of review specified in s 219C
and from the remedies specified in s 219F that review appeals were intended to expand
remedies that were previously available at common law on an application for judicial
review.
61․	For most of their history, appeals against conviction or sentence under Div 2 (and its
successor Div 3.10.2) could only be brought by a defendant. However, upon their
enactment in 1972, reviews under Div 3 extended to the bringing of an appeal by a prosecutor against an order for the dismissal of an information. The Explanatory
Memorandum to the 1972 Ordinance records that these amendments constituted the
first time in the Territory that an appeal statute had provided the prosecution with a right
of appeal against the dismissal of an information.
62․	This right of the prosecution to appeal against the dismissal of an information was short
lived. Two years later, the right was removed by the Court of Petty Sessions Ordinance
1974 (Cth) (“the 1974 Ordinance”). The Explanatory Memorandum to the 1974
Ordinance explained that the right could be seen as “contraven[ing] the double jeopardy
rule”.
63․	In 1990, Div 3 was again amended by the Magistrates Court (Appeals against Sentence)
Ordinance 1990 (Cth), this time to introduce s 219B(1)(g), which conferred a right to seek
review of “a sentence or penalty imposed by the Magistrates Court”. This right to appeal
against a sentence extended to prosecutors as well as defendants. The legislature’s
intent that s 219B(1)(g) extend to permit prosecution appeals against sentence was
made clear by the insertion of s 219C(1)(g) to include a ground of review that the
“sentence imposed was manifestly inadequate or otherwise in error” (a ground which
would, of course, only be relied on by the prosecution).
64․	The Explanatory Statement to the 1990 Ordinance explained that:

The purpose of the Ordinance is to introduce a right of appeal by the prosecution against a

sentencing decision by the ACT Magistrates Court for an offence punishable summarily…

Since the introduction in 1989 of a right of appeal by the prosecution against a sentence imposed for a summary offence in the Local Court of New South Wales, the Australian Capital Territory has been the only jurisdiction in Australia where the prosecution does not have a right of appeal against a sentence imposed at the summary level.

65․	As the Explanatory Statement makes clear, the 1990 Ordinance was the first time that
the prosecution was conferred with power to seek a review of a sentence imposed by a
court exercising summary jurisdiction in the Australian Capital Territory. (At this point in
time, s 208(1)(c) continued to limit the right of appeal against sentence conferred by
Div 2 to persons convicted of an offence.)
66․	Despite these significant amendments to the availability of review appeals under Div 3,
Div 2 (and its successor, Div 3.10.2) was not the subject of similar amendment until 2006,
when the Sentencing Legislation Amendment Act 2006 (ACT) (“the 2006 Amending Act”)
amended s 208(1)(e) and s 208(1)(f) of the Magistrates Court Act.
67․	The previous ss 208(1)(e) and (f) had provided for appeals “by the person charged” and
“by a person who has given a recognisance” from specified decisions of the court under
the Crimes Act. In contrast, the new provisions provided more generally for “an appeal
from an order of the court” under specified provisions of the Crimes (Sentencing) Act and
the Crimes (Sentence Administration) Act, including both custodial and non-custodial
sentences.
68․	Unlike their predecessors, the new s 208 did not differentiate between appeals by an
offender and appeals by the prosecution. Textually, the new s 208(1)(e) appears capable
of conferring a right on the prosecution to appeal against a sentence imposed by the
Magistrates Court. However, the extrinsic materials to the 2006 Amending Act suggest
that the legislature may not have intended that the amendments occasion such a
significant change: the Explanatory Statement described the amendments as simply
“[u]pdating the references to adult sentencing options in s 208(1)(e) and (f) to those
available in the new sentencing scheme”. It may be noted that in Hall, Refshauge J
accepted that the terms of s 208(1)(e) are broad enough to encompass a prosecution
appeal against sentence, but did not finally determine whether the proper construction
of the provisions was to require that a prosecution appeal be brought under Div 3.10.3:
Hall at [16].
69․	The final amendments that are relevant to the present referral came into effect in 2009,
when the Crimes Legislation Amendment Act 2008 (ACT) (“the 2008 Amending Act”)
removed the two-step process for seeking a review appeal under Div 3.10.3, requiring
only the lodging of a notice of appeal. Apart from some renumbering, the relevant
provisions remained substantially the same. Section 219D(e) continued to provide the
prosecution with a right of appeal on a ground alleging that the sentence imposed was
manifestly inadequate.
70․	Section 219F(5) (which had, in earlier iterations of the provision, been numbered
s 219F(3) as noted above) was amended to read:

The Supreme Court may, despite the ground or any of the grounds for review mentioned in s 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.

71․	In his written submissions in reply, the Director appeared to contend that the substitution
of the words “despite the ground or any grounds for review mentioned in section 219D
being established” constituted a “substantial amendment” to the provision. We do not
agree. Those words replaced the previous reference to the discretion of the Supreme
Court to “discharge” an order nisi “notwithstanding the ground or any of the grounds on
which the order nisi to review a decision of the Court of Petty Sessions was granted has
been established”. In other words, the amendment to s 219F did not occasion a
substantive change to the operation of the discretion; rather, it simply reflected the procedural change, by which the two stage order nisi process was compressed into a
single procedure which required only the lodging of an appeal.

Determination

The first question: Whether the residual discretion applies to a prosecution appeal against sentence from the Magistrates Court

72․	The Director’s concession that Kirby v Ali was wrongly decided should be accepted.
73․	For the reasons outlined above, residual discretion principles are concerned with the
protection of a convicted person against the unfairness or injustice that may arise from
allowing a prosecution appeal against sentence. These principles will be read into a
generally worded statute that confers such a right of appeal unless displaced by clear
and unmistakeable language.
74․	Accordingly, the question to be asked is not whether the Magistrates Court Act indicates
a textual intention to positively “adopt” the residual discretion; cf Kirby v Ali at [4]. Rather,
the proper question to be asked is whether, in conferring jurisdiction on the Supreme
Court to hear a prosecution appeal against sentence, the legislature clearly indicated an
intention to oust the exercise of the residual discretion.
75․	As the Director properly conceded, there is no support for the proposition that the
legislation intended to oust the residual discretion in respect of prosecution appeals
against sentences imposed by the Magistrates Court. Section 219F(1) provides that the
Supreme Court “may… if satisfied” dismiss an appeal. Section 219F(5) further provides
for the Court to dismiss an appeal where no substantial miscarriage of justice has
occurred. The relationship between these two provisions is discussed further in answer
to question 2 below. For present purposes, it is sufficient to note that there is no textual
or purposive reason to conclude that the legislature intended the court to disregard the
considerations of fairness and justice which underlie the residual discretion when
determining whether to allow a prosecution appeal against a sentence imposed by the
Magistrates Court.
76․	Nor is there any historical basis to infer that the legislature intended to oust the residual
discretion. As summarised above, Div 3.10.3 of the Magistrates Court Act, and its
predecessor, Div 3 of the Court of Petty Sessions Ordinance, have been the subject of
somewhat piecemeal amendments over the past five decades. The provision for a right
of the prosecution to appeal against a sentence imposed in the summary jurisdiction in
the 1990 Ordinance was intended to do no more than to bring the Territory into line with
other Australian States and Territories. The residual discretion of an appellate court to
decline to resentence following a finding of error was well-established by this time: see Tait. There is no indication in the legislative history, much less a clear indication, that the
legislature at any time intended that the residual discretion would not apply to these
appeals.
77․	Accordingly, the first question should be answered in the affirmative.

The second question: Whether the content of the residual discretion is affected by s 219F(5) of the Magistrates Court Act

78․	We have carefully considered whether the second question should be answered by this
Court. On the current referrals, the application of the second question could arguably be
seen as somewhat hypothetical. We do not have any information about precisely what
residual discretion factors are said to be enlivened in the referred cases, nor, ultimately,
was there a clear controversy between the parties as to how any such factors should be
taken into account. Whilst the Director submitted that the second question should also
be answered in the affirmative (that is, that s 215F(5) does affect the residual discretion),
the Director did not ultimately identify the specific respects in which he said that
s 215F(5) affected the residual discretion.
79․	However, as counsel for Ms Sebbens submitted, the divergence in the Director’s
submissions as to the effect of s 219F(5) provides a compelling reason for this Court to
provide guidance as to the content of the residual discretion. As noted above, in the
proceedings before this Court, the Director made contradictory submissions about
whether, in exercising its residual discretion to dismiss an appeal against a sentence
imposed by the Magistrates Court, the Supreme Court may consider events that
occurred post-sentence; and whether the onus of negating the residual discretion lies on
the prosecution or the offender. These issues will be critical to the application of the
residual discretion in both of the cases which are the subject of the present referral, and
in the determination of prosecution appeals against sentences imposed in the
Magistrates Court more generally. Accordingly, we consider that it is appropriate to
address the competing approaches to the construction of s 219F proposed by the
Director and the respondents.
80․	As noted above, the Director contended that the residual discretion should be located in
s 219F(5), and that the discretion is accordingly limited by the text of this subsection. In
contrast, the respondents contended that the residual discretion is located in the broad
discretion conferred by the use of the word “may” in s 219F(1).

81․ We do not consider that the residual discretion should be construed as located

exclusively within either subsection.

82․	As noted at [4] above, the residual discretion is concerned with questions of fairness and
justice, both to the offender and with respect to the administration of justice generally.
Some aspects of the discretion may be best addressed by application of the s 219F(5)
discretion to dismiss an appeal “if the court considers that no substantial miscarriage of
justice has happened”. For example, where the prosecution contributed to an error in
the sentence imposed at first instance, or where there is little substantive difference
between the sentence that was imposed at first instance and that which should have
been imposed, it may be appropriate for a court to conclude that “no substantial
miscarriage of justice has happened”.
83․	However, where, for example, there has been unexplained delay in the prosecution’s
commencement of an appeal, or where the offender has made progress towards
rehabilitation in the period after the sentence was imposed, the court may conclude that
although a substantial miscarriage of justice was occasioned by the sentence imposed
at first instance, the allowing of an appeal would occasion unjustified unfairness. In such
a case, it may be more appropriate for the court to dismiss the appeal and confirm the
sentence imposed under the broad discretion conferred by s 219F(1).
84․	In other words, contrary to the respondents’ primary submission, we do not consider that
s 219F(5) should be construed as being solely concerned with materiality considerations,
nor that the discretion in s 219F(5) should only be addressed if the prosecution has first
satisfied the Court that there is no basis to exercise the residual discretion. In our view,
the discretions in s 219F(1) and s 219F(5) are broad and complementary discretions
which should both be considered by the Supreme Court after any conclusion that error
is established, and prior to engaging in the process of resentencing under s 219F(2)(c)(i):
Green at 477 [35]; CMB at 366 [57] and 370 [66].
85․	We do not accept the Director’s submission that the inclusion of s 219F(5) restricts the
operation of the residual discretion.
86․	The principle of legality applies not only to the abolition of common law rights, but also
to their limitation. The principle of legality “requires that statutes be construed, where
constructional choices are open, to avoid or minimise their encroachment upon rights
and freedoms at common law”: Momcilovic at 45 [43] (emphasis added). Issues such as
the onus of proof and the relevance of temporality (that is, whether events occurring after
the imposition of the sentence at first instance can be taken into account) have the
capacity to significantly circumscribe the operation of the residual discretion. Clear
language is required before a construction is adopted that could have the effect of
curtailing the court’s discretion to dismiss a prosecution appeal for reasons of fairness.
87․	The creation of a separate discretion to refuse relief in s 219F(1) is clear from the use of
the word “may”, which “is generally understood to authorise the court in which the
relevant power is reposed not to grant the relief sought although it is enlivened”: DK at
74 [36]. The creation of the discretion is further confirmed by the provision in s 219F(1)(a)
for an appeal to be dismissed if the Supreme Court is “satisfied” that the decision of the
Magistrates Court should be confirmed. As counsel for Ms Sebbens observed, the
matters that may “satisfy” the Supreme Court that a decision of the Magistrates Court
should be confirmed are not defined or limited. They are apt to include the fairness
considerations that are at the heart of the residual discretion. Indeed, as noted at [40]
above, in Karazisis (at [73]), the Victorian Court of Appeal held that the residual discretion
was expressly preserved by similar statutory language in s 289(1) of the Criminal
Procedure Act 2009 (Vic).
88․	Nor is there any textual basis to infer that the discretion in s 219F(5) is intended to limit
the broad discretion conferred by s 219F(1). The two provisions are largely concerned
with different considerations. As the Director noted, s 219F(5) focuses attention on the
past: the prosecution’s appeal against sentence may be dismissed if the Supreme Court
considers that “no substantial miscarriage of justice has happened” (emphasis added);
whereas s 219F(1) confers a discretion that permits the Supreme Court to take into
account not only the evidence that was adduced at first instance, but also “any further
evidence called by leave of the Supreme Court”. The express reference in s 219(1) to
“further evidence”, which may include evidence of delay in the commencement of the
appeal and evidence of rehabilitation, is entirely apt to include considerations of the
fairness of allowing a prosecution appeal that may have otherwise been excluded by a
strict construction of s 219F(5).
89․	There is overlap between the two subsections. The specific miscarriage considerations
that are referred to in s 219F(5) could, in the absence of that subsection, have been
considered under the broad discretion conferred by s 219F(1). However, this overlap
does not constitute a reason to read down the generality of the discretion conferred by
s 219F(1).
90․	The principle of statutory construction that all words of a statute are to have meaning
and effect does not require a construction that each word in the provision have meaning
and effect in each and every case. In this respect, it is also to be borne in mind that, as
originally enacted, s 219F did not apply to prosecution appeals against sentence. Whilst
the 1972 Ordinance (briefly) permitted a prosecution appeal, this was only with respect
to appeals against the dismissal of an information, and did not extend to an appeal
against sentence. For much of its early history, s 219F(5) primarily applied to appeals against conviction brought by defendants. In this context, the conferral of a discretion to
dismiss an appeal where “no substantial miscarriage of justice has occurred” may have
reflected the proviso which commonly applies in appeals against conviction: see Weiss
v The Queen [2005] HCA 81; 224 CLR 300.
91․	When the 1990 Ordinance first conferred upon the prosecution a right to appeal against
a sentence imposed in the Magistrates Court, it did so in a statutory context which
provided two sources of a discretion to dismiss such appeals, both the proviso in
s 219F(3) (now s 219F(5)), and the discretion conferred by the permissive language of
s 219F(1)(a). In these circumstances, there is no purposive reason to infer that the
legislature intended s 219F(5) to operate to the exclusion of the broad discretion then
conferred in s 219F(1).
92․	For completeness, we also observe that an interpretation of s 219F which does not limit
the residual discretion is consistent with the construction that has been adopted of
similarly worded statutes by most courts in other Australian jurisdictions. For example, in
the Northern Territory, whilst the issue has not been finally determined, it has been
suggested that the residual discretion is not limited by a legislative proviso to dismiss an
appeal where “no substantial miscarriage of justice has actually occurred”: Harvey v
Bofilios [2017] NTSC 68 at [32] and Rigby v Kotis. Similarly, in Tasmania, the residual
discretion was found to derive from the words “warranted in law”, rather than in a similarly
worded proviso: Chatters at [51].
93․	The only interstate authorities which have held that a similarly worded proviso has the
effect of limiting the residual discretion are two decisions of Curthoys J in the Western
Australian Supreme Court, in which his Honour held that the residual discretion “arises
from, and is accordingly limited by, the proviso”: Toop v Smart [2022] WASC 237 at [22]
and Cowie v Bacopak Pty Ltd [2022] WASC 14 at [21]. It does not appear from the
judgments that his Honour was assisted by submissions on this question of construction
in either case. Neither decision referred to the principle of legality, and as first instance
decisions, do not alter the conclusions above as to the proper construction of s 219F of
the Magistrates Court Act.
94․	Accordingly, s 219F(1) and s 219F(5) should be construed as providing separate,
overlapping, discretions to dismiss a prosecution appeal against sentence. Some
residual discretion considerations will be best addressed under s 219F(5). Other residual
discretion considerations will be best addressed under the discretion conferred by s
219F(1).
95․	Where the Supreme Court, when hearing a prosecution appeal against sentence, finds
a ground of review established under s 219D, the Court should then consider whether a
prosecution appeal against sentence should be dismissed under either s 219F(1) or
s 219F(5) before engaging in any resentencing task. As some aspects of the residual
discretion may be best dealt with under s 219F(5), it is not appropriate to declare that
the residual discretion is “unaffected” by s 219F(5), as proposed by the respondents.
However, we are of the view that the second question can, and should, be answered by
stating that the residual discretion is not limited by s 219F(5) of the Magistrates Court
Act.

Orders

96․ For the above reasons, the questions referred should be answered as follows:

Question 1: In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?

Answer: Yes

Question 2: If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?

Answer: The residual discretion is not limited by s 219F(5) of the Magistrates Court Act.

I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of the Full Court

Associate: A McCook

Date: 27 October 2023