May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia

The Supreme Court of the Australian Capital Territory considered two appeals brought by the appellant, Christopher May, against Helicopter Resources Pty Ltd and the Commonwealth of Australia. These appeals concerned the competency of the appellant's appeals to the Court of Appeal, following decisions of the Supreme Court which had, in effect, resulted in acquittals for both respondents. The respondents argued that the general appeal provision in s 37E of the Supreme Court Act 1933 (ACT) did not permit appeals in these circumstances, relying on the principle established in *Thompson v Mastertouch TV Service Pty Ltd (No 3)*.

The court was required to determine whether the appeals to the Court of Appeal were competent, specifically whether s 37E of the Supreme Court Act 1933 (ACT) allowed for appeals against the Supreme Court's decisions in the context of the specific procedural history of each case. This involved considering the application of the *Mastertouch* principle, which generally precludes appeals from acquittals following a hearing on the merits, to situations where the initial proceedings involved acquittals in the Magistrates Court, subsequent appeals to the Supreme Court, and then further appeals to the Court of Appeal.

The court reasoned that the *Mastertouch* principle was not applicable to either appeal. In the case of Helicopter Resources, the *Magistrates Court Act 1930* (ACT) expressly provided for prosecution appeals against acquittals to the Supreme Court, and the *Mastertouch* principle did not operate to limit this statutory right. Furthermore, the principle did not apply to appeals arising from the exercise of such an express right. In the case of the Commonwealth, its initial appeal to the Supreme Court was from convictions, and the subsequent acquittal by the Supreme Court was an order made on appeal, not an acquittal after a hearing on the merits by a court of competent jurisdiction. Therefore, the general right of appeal under s 37E of the Supreme Court Act was not to be read down, and both appeals were competent.