Mellifont v Attorney-General of Queensland

[1991] HCATrans 107

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B36 of 1990

B e t w e e n -

TERRENCE JOSEPH MELLIFONT

Applicant

and

ATTORNEY-GENERAL OF QUEENSLAND

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 APRIL 1991, AT 10.18 AM

(Continued from 7/3/91)

Copyright in the High Court of Australia

Mellifont(2) 82 30/4/91

MASON CJ: Yes, Mr Davies.

MR DAVIES:  Your Honours, I think we have some who wish to intervene at this stage in this matter.

MASON CJ: Yes, there seem to be more people on the list

than were present on the last occasion.

MR DAVIES:  I think that is so, Your Honour.

MASON CJ: Yes, well, do they wish to announce their

appearances?

MR DAVIES:  I think so.

MR J.J.DOYLE, OC, Solicitor-General for South Australia: If

the Court pleases, I appear for the

Attorney-General for the State of South Australia.

(instructed by the Crown Solicitor for

South Australia).

We ask the Court's indulgence to permit us to it was a notice which gave us very little time and at that time the decision was taken in light of intervene	at this late stage in the proceedings.
that not to intervene. We seek to make a short submission in this matter, solely on the question
of whether an appeal is competent, having regard to the provisions of the Constitution, and in fact we have prepared it in the form of a written
submission and I just seek to elaborate on one
paragraph of it in due course.

MASON CJ: Yes, very well.

MR T.I.PAULING, QC, Solicitor-General for the Northern

Territory:  May it please the Court, I appear on

behalf of the Attorney-General for the Northern

Territory to support the arguments of the

respondent and we are happy to adopt the

submissions by counsel for the State of

South Australia and have nothing to add.

(instructed by the Crown Solicitor for the Northern

Territory)

MASON CJ: Yes, Mr Solicitor. Yes, Mr Davies.

MR DAVIES:  May it please the Court, the points which we

were making prior to the adjournment with respect to section 73 were first, that the opinion of the

Court of Criminal Appeal was not a judicial

decision; and alternatively, that it was not in a

matter.

Mellifont(2) 83 30/4/91

It was not a judicial decision, in our

respectful submission, in form because Your Honours

will recall the phrases in section 669A - - -

MASON CJ:  Mr Solicitor, would it be more convenient from

your point of view if the Solicitor for South

Australia preceded you in his argument, or are you

happy to continue with your argument?

MR DAVIES:  It is immaterial to our purpose. I have seen

his argument and it does not matter, Your Honour.

MASON CJ: Yes.

MR DAVIES: It was not a judicial decision in form, we say,

first, because of the words in section 669A:

refer ..... to the Court for its consideration

and opinion -

and the phrase -

consider ..... and furnish to the

Attorney-General its opinion thereon.

We contrast those phrases with the requirements in

In re Judiciary and Navigation Act which were to

hear and determine and that the determination

should be final and conclusive and not subject to

any appeal. They were the phrases which were

considered to be determinative of the exercise of

judicial power in that case.

Could I just refer Your Honours without taking

Your Honours to it to the argument of page 264 and the judgment of Justice Higgins at

pages 269 and 270.

Your Honours, we also contrast with the

phrases in this case the phrase "hear and

determine" which appears in both the legislation

considered in the Federated Engine Drivers case and

the Merchant Service Guild case in the passages

from O'Toole to which we took Your Honours on the

previous occasion.

Secondly, we submit as a question of form that

though the person acquitted or discharged is

entitled to be heard before the opinion is

furnished, that that is not necessary, and we refer

to the phrase "if he so desires" which indicates,

in our submission, a right to be heard rather than

the constitution of a lis inter partes.

We then submit that it is not, in substance, a

judicial decision because it does not have a

Mellifont(2) 30/4/91

binding effect on parties. There is no lis inter

partes in existence and the opinion which is

furnished can have no effect on the person

acquitted or discharged unless, in the case of

acquittal, he happens to be charged with another

offence in which the same point arises or, in the
case of discharge, he is either reindicted for the

same offence or one in which a similar question

arises, and in either of those cases it has

precisely the same effect on any person then or
subsequently charged with any offence in which that

point arises.

Your Honours, in our respectful submission, to

be a judicial decision, though it need not finally

determine rights or obligations, it must be

directed to the determination as between specific

parties of rights or obligations which must be

affected by the determination. And there is a line

of cases to which I will not take you, but can I

mention them, commencing with Huddart, Parker

v Moorehead, 8 CLR 330, particularly at page 337 to

at least the decision of this Court in Love

v Attorney-General (N.S.W.), 169 CLR 307 at 319 to

321 which supports, in our respectful submission,

that proposition.

Our alternative submission is that it is not

in a matter, and we take Your Honours again, but
without taking you to it specifically, the passage
in the Judiciary and Navigation Act judgment in
which the majority said that the term "matter" is

used with the same general meaning throughout

Chapter III and, in particular, with the same

meaning as sections 73 on the one hand and 75 and

76 on the other. That is the passage at page 266.

DEANE J:  If you were going to fit the function of the Court

into the separation of powers doctrine, what

category would you put it in, Mr Solicitor?

MR DAVIES: Executive, Your Honour.

DEANE J: Executive?

MR DAVIES: Yes, Your Honour.

DEANE J:  You do not see it as in any way a binding

declaration of law of what the law is, which in the

Amarican cases say is outside the - - -

MR DAVIES:  In the sense that it creates a precedent only,

Your Honour, but not binding inter partes, in

that - - -

Mellifont(2) 85 30/4/91

DEANE J:  No, I did not mean binding in terms of estoppel,

but is not the whole point of it to have a binding

declaration of what the law is?

MR DAVIES:  Your Honour, we cannot escape the fact - and we

do not attempt to do so - that because it is an

opinion given by the Court of Criminal Appeal, that

it must have the effect on people that any opinion

by the Court of Criminal Appeal would have.	As
indeed, so would - - -

DEANE J: Not if you be right, though. If you be right,

under the separation of powers, a judge exercising

judicial power should say, "I will not be

influenced by that executive declaration", which

all principle says is not to be treated as having

authority in a court of law.

MR DAVIES: Perhaps that is so, Your Honour, but can I just

take the analogy of the legislation in In re

Judiciary and Navigation Act. We would say it is

the same as what was sought to be done there,

however that is categorized.

Your Honours, a similar point to that made in

Judiciary and Navigation Act about the meaning of

matter in Chapter III was made more recently in

Crouch v Commissioner for Railways. Again, I will

not take Your Honours to that case, but can I give

you the reference: 159 CLR 22, the passage being at

page 37. Now, Your Honours, that view was

contested by the applicant here, but in our

respectful submission it has been the consistent

view of this Court, and there is no compelling

reason to question it now.

Your Honours, in our respectful submission, the judgment, decree, order or sentence must be in

a justiciable controversy, and that there was none

in existence here. In our respectful submission,

the reference to the Court of Appeal is, in no

relevant sense, a remnant, as Your Honour

Justice Deane put it, of the former criminal proceeding. It is not related to it in time, as an

appeal is. It need not have the former accused

involved in it in any way. He had a choice. And

it can have no greater effect upon him than the one

which we have already outlined. Nor can it, we

submit, be said that it is in a proceeding which

has not commenced and, indeed, might never

commence. And Your Honours will recall that the

applicant's argument really focussed on that,

rather than its relationship to the former

proceeding.

Your Honours, we would submit even that the advice of the Court of Criminal Appeal in this

Mellifont(2) 86 30/4/91

matter has less relationship to the earlier

terminated trial in this case than when there has

been an acquittal. If a trial terminates following

an acquittal, turning on a point of law or even in

the case of an acquittal following a direction on a
point of law, then the subsequent finding by the

Court of Criminal Appeal that the point of law was incorrectly determined might be seen as adversely

reflecting upon that acquittal.

Now, even in such a case, we would submit that

the advice of the Court of Criminal Appeal has no

legal effect upon the acquittal but there would at

least be some grounds for the applicant to argue

that although it is not an appeal that the advice
of the Court of Criminal Appeal on the reference

had the effect on the applicant of undermining his

fundamental right to rely upon his acquittal as

affirming his innocence. By contrast, we say, in

this case the trial was terminated by nolle
prosequi, the jury was discharged without any

verdict taken and the accused was left in the same

position as he was before the trial, namely, that

he is presumed innocent of the offence until he is

proved guilty.

We say that, therefore, in this case there is

even greater reason to argue that the point of law

is determined as an abstract point of law by the

Court of Criminal Appeal, that the proceedings

involved no determination of the innocence or guilt

either directly or by reflection on any prior

verdict.

There is even less relevance, in our

respectful submission, to a future trial.

Attempting to relate it to that highlights the

hypothetical nature of the opinion. It is even

hypothetical whether a future trial will take place

because, in this case, for example, the letter

which was written indicated that Mr Mellifont would	be reindicted if there was a successful outcome, if
the opinion was given in a certain way. Of course
any future trial would be determined on the evidence which was adduced then which might not be
the same as the evidence which was adduced in the past trial and, of course, the only effect of the decision is the one which we have already
indicated.

Your Honours, finally on the question of

section 73, in our respectful submission, the

effect of giving the Court jurisdiction to hear an

appeal from the opinion of the Court of Criminal

Appeal is to give it a wider jurisdiction under

section 73 than it has under sections 75 and 76.

Mellifont(2) 87 30/4/91

In the joint judgment of Your Honours

Justices Deane, Gaudron and McHugh in O'Toole, at

page 637, column 2G, Your Honours said, correctly

in our submission, that it has long been settled

that the Court cannot furnish an advisory opinion

to a body other than a court. And Your Honour

the Chief Justice said something to similar effect,

in our respectful submission, at page 620,

column 2E. But, in our respectful submission, on

the proper construction of the legislation and on the plain meaning of the legislation that is what the Court of Criminal Appeal is doing here.

Your Honours, can I just say, finally, with

respect to section 73, that we do not wish to make

the submission which appears in paragraph 5 of our

outline, that is the alternative submission which

appears in paragraph 5.

Can I then go to the substance, Your Honours,

of the appeal and like our learned friend can I

commence with section 123 of the Code, the perjury

section? Can I ask Your Honours to look at our

outline with respect to that, that is question (C),

the relevant paragraphs being paragraphs 2, 3

and 4. In paragraph 4 we make the point that the

phrase "which is material" cannot be read as

qualifying testimony except by depriving the phrase

"touching any matter" of meaning.

Your Honours will recall that the argument of the applicant was that that phrase "touching any

matter" is emphatic and indicates that the subject

of the false testimony may go to credit or to

explaining the absence of a party or a witness or

to evidence on a voir dire as to evidence. That

appears from our learned friend's outline,
paragraph 2, page 5, and also to his oral argument
which appears in the transcript of argument at

pages 43 to 51. That submission of the applicants

assumes that if that phrase "touching any matter"

were omitted that the section would not touch those

collateral matters; it would not reach them.

Now, if we make that assumption, the addition

of the phrase "touching any matter", in our

respectful submission, does not extend the meaning

of the section if it is the testimony which must

remain the item material to the question.

Construed in that way, in our respectful

submission, the addition of the phrase "touching

any matter" adds no further meaning because, as I

think Your Honour Justice Dawson said on the

previous occasion, testimony must always touch some

matter.

Mellifont(2) 88 30/4/91

On the other hand, if "matter" includes

collateral issues such as credit, then the

inclusion of the phrase "touching any matter" does
extend the reach of the section, for example, if

the false testimony touches the credit of a witness

and that is the matter, and that credit, the

matter, is material to a question in the

proceeding, and it follows from that, in our

submission, that the applicant's argument that the

phrase "touching any matter" extends the reach of

section 123 to issues such as credit and other

collateral matters, supports our submission that

the natural meaning of the section is the correct

one, that is, that the false testimony must touch a

matter, for example, credit, and that the matter

must be material to a question.

Your Honours, there is just one other matter

on section 123 to which perhaps we should refer and

that is that our learned friend quoted a passage

from The Queen v Davies, (1973) 7 SASR 375. The

passage which he quoted is a passage from the

judgment of His Honour Mr Justice Wells in that

case, which commences about the middle of page 391.

Our learned friend quoted this passage at pages 50

to 51 of the transcript and what we want to submit

is that, if it matters, that passage supports the

view that section 123, read in the way we have

suggested, does not differ from the common law

because, if Your Honours look at that passage, the

one commencing in the paragraph, "But, in my

opinion", but more importantly the passage

commencing about the middle of that paragraph and

going towards the end, what His Honour is there

doing is expressing the view that a fact was

material when it was capable in its context of:

affecting the decision of the appropriate

tribunal of fact on the factual issue or

issues -

and it was material, he thought -

not only when it was a fact in issue or a fact

relevant to a fact in issue -

but also when it was fairly capable of affecting
the defendant's credit or the credit of some other
witness.

However, we make the point in paragraph 5 of our outline that there is no ambiguity in the

section and consequently the previous law is of no

relevance to its construction.

Can I go then to the final question,

Your Honours, which is the construction of the

Mellifont(2) 89 30/4/91

second Order in Council and can I then take
Your Honours back to our outline of submissions?

concluding date is omitted and the new phrase is

The most important difference between the Orders in

inserted:

Whether during the period since

1 January 1977 -

And, Your Honours, we make the points in

paragraph 1 of our outline that that omission is

made and we also contrast, in the second Order in

Council, paragraphs 1 and 3 on the one hand with

paragraph 2 on the other, paragraph 2 including a

concluding - - -

DEANE J:  Mr Solicitor, I have forgotten where we find the

Orders in Council.

MR DAVIES:  They are not in the appeal book. I handed them

up to Your Honours, I thought. Perhaps that is why Your Honour is having difficulty but I do have some

spare copies if Your Honours cannot find them.

Perhaps I should take Your Honours to them. The

first Order in Council, Your Honours, which is the

one of 26 May 1987, authorizes Mr Fitzgerald:

to make full and careful inquiry with respect

to the following matters:-

1. Whether during the period 1st June, 1982

to 26th May, 1987 -

The second Order in Council retains those opening

words but substitutes as the opening words of

paragraph 1 the words:

Whether during the period since

1 January 1977 -

but retains, in paragraph 2, a concluding date:

between 1st July and 31st December 1983.

So, paragraph 1 has no termination date,

paragraph 3 is in general terms, but paragraph 2

has a commencing and concluding date.

What we submit is the sense of the second Order in Council in those circumstances - and this

is what we really say in paragraph l(c) of our

outline - is that the matters to be inquired into

are those which arose since 1 January 1977 and that the ordinary sense of those words is that those are

the matters which are to be looked at by the

inquirer, Mr Fitzgerald, at the time at which he

Mellifont(2) 90 30/4/91

inquires. And, therefore "during the period since

1 January 1977" means just that; means during the

period commencing on that date and ending at the

time when the inquiry is made.

And Your Honours, we also submit that

otherwise paragraph 3 would either be nonsensical

in whole or in part, in the sense that it would not

fulfil its proper purpose, in the sense that the

purpose of examining the adequacy of legislation

and procedures ought to be in the light of conduct

which existed at least as well at the time that the

inquiry takes place - up to the time when the

inquiry takes place.

Your Honours, the only other point we want to

make about the Orders in Council is a point, I

think, which was raised by Your Honour the

Chief Justice on the previous occasion, and that is
the second paragraph under paragraph 4, the

definition of "member of the police force", but in

our respectful submission, at the most that is

neutral. If the assessment is being made at the

time of the inquiry, then obviously it was

important not to confine members of the police
force to be current members of the police force at
the time the inquiry takes place, but to include
members of the police force who were at any time

during the period since 1 January 1977 a member of

the police force.	They are our submissions, may it
please the Court.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for South

Australia.

MR DOYLE: If the Court pleases, I have prepared a written

submission. Do Your Honours have that?

MASON CJ: Yes, we have that.

MR DOYLE:  Your Honours, I would merely seek to make one or

two preliminary points, explain one paragraph, and

then make a short point in conclusion. First of

all, generally, if the Court pleases, we would

support the remarks made by members of this Court

in O'Toole v Charles David in so far as they would

support taking a more liberal approach to the

question of what is an appealable judgment.

Secondly, in our submission, it is appropriate

to reyiew the previous decisions of this Court on
the matter, and we would simply put in support of
that, the considerable practical importance in the

administration of justice.

The one point I just wanted to clarify in the

written submission is paragraph 4, and of course an

Mellifont 91 30/4/91

argument from inconvenience has limited valUf but

it is interesting to note, when one looks at· the

history of the proceedings in the Moor Line case,

the Moor Line (No 1) which we have referred to

there was actually the second case, and the Moor

Line (No 2) was the proceedings in which the court

said that the case stated by the arbitrator in the

course of the proceedings, or the answer on that, was not an appealable judgment and so the attempt to take the answers on the case stated to the High

Court failed. But when one looks closely at the

Moor Line (No 1) one finds that in any event what

happened was that the arbitrator proceeded in the

arbitration on the basis of the answers given by
the Victorian Full Court and then there was an

appeal from that decision or it challenged the

arbitrator's decision. The Victorian Full Court

simply followed what it had said before when

dealing with the matter in the proceedings which

were held to be not appealable. So the net result

was that in the Moor Line (No 1), the High Court

finished up looking at the very same legal issues

which it had decided it could not look at in the

Moor Line (No 2) and yet the arbitrator had, in the arbitration, acted on the judgments which were held not to be appealable in the Moor Line (No 2).

That appears in particular, Your Honours, if I

could just give you a reference to Moor Line (No 1), at pages 201 to 202 where one of the

members of the court very briefly states the

history of the matter and it shows that in the Moor

Line (No 1) they were in fact dealing with the very same issues which they held they lacked the competence to deal with in the Moor Line (No 2). Your Honours, could I just go then to paragraph 13

DAWSON J: Why is that inconvenient. Is it not better that

the other case is gone on with without

interlocutory matters being raised and taking all

the way along the line of appeals and then,

finally, when the award is made, if it is not in

accordance with the law that is determined?

MR DOYLE:  Yes. Your Honour, I might have put the

proposition too universally and I would have to

acknowledge that there may be cases where it would

appear, in retrospect, that the taking of

proceedings in the court in fact had not assisted,

but when one looks at the judgments in the

Moor Line, in my submission, it appears that the

matters that the court was dealing with were, as it

were, fundamental to the conduct of the arbitration

and if they could be resolved, in a binding

fashion, in the course of the arbitration would

enable the arbitrator to proceed more expeditiously

Mellifont(2) 92 30/4/91

and more efficiently with his task. But I do

acknowledge that in putting it as if it were always

and inevitably the case, that there would be

inconvenience through the inability to do this,

that I have put the matter too widely.

Your Honours, going to paragraph 13 and if I

can just say what has preceded it. Paragraph 13 is

really an argument that the Court should take a

more liberal approach and then bringing that

argument to apply it in this case. First of all,

in our submission, if it is necessary under

section 73 of the Constitution that there be a

matter in the constitutional sense, as Your Honour

Justice Dawson said was necessary in O'Toole

v Charles David, in our submission there is such a

matter here, that is the proceedings which affected

the rights of the accused - the original

prosecution - and we would submit the matter can be

looked at in the way we have put in paragraphs 14

and 15, that the reference is merely a new

procedure for resolving an issue which did arise in
those proceedings and those proceedings being in

the constitutional sense were involving a matter.

And so in paragraph 15 which is really our

concluding submission, we submit that a reference
in a case like this is a vehicle by which the court

of a State does authoritatively determine whether

the law was correctly applied and it is a question

of whether the law was correctly applied in

proceedings which, in that broader sense, were a

matter. But again I have to make just one caveat.

Where, as in some States, there can be a reference

only after an acquittal, in our submission that

proposition applies, the court is authoritatively

determining whether in those proceedings which

resulted in an acquittal the law was correctly

applied.

Equally, where the Attorney-General has

entered a nolle prosequi consequent upon a ruling

of a trial judge, in our respectful submission,

again the court is determining whether the law was
correctly applied. It is conceivable, and I only

say conceivable on the terms of the Queensland

section, that a nolle prosequi might be entered for

really on the basis saying, "Well, we entered a

reasons completely unrelated to a ruling and the

nolle because we were a little unsure how the law

stood on this point and that no rulings had been made, but we would now like the court to tell us

what the law is so we can decide whether to go on".

A separate question might arise in that

situation, whether it could even be said the court

Mellifont(2) 93 30/4/91

was being asked to determine whether the law had

been correctly applied in that situation but, in

our respectful submission, that is the only

qualification we would make and we would submit

that, subject to that, the Court should hold that a

reference in such matters does give rise to a

judgment in respect of which an appeal can lie to

this Court.

And could I just, in conclusion, provide to

the Court copies of the relevant South Australian

section which is in a slightly different form and

just illustrates a slightly different type of

reference, one consequent only upon an acquittal.

And they are our submissions, if the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Jackson?

MR JACKSON:  I thought there was another intervener,

but - - -

MASON CJ:  I think the other intervener stated his position

earlier, Mr Jackson.

MR JACKSON:  Your Honour, except that when stating it I

think he referred to the respondent, but meant the

appellant.

Your Honours, may I deal with a couple of matters by way of reply.	The first area with which
I wish to deal concerns section 73.	Your Honours,

the nature of the proceedings in the Court of

Criminal Appeal is a proceeding which in a sense is

sui generis, but it .does have its analogies not

complete, of course, to an appeal. By that I mean

an appeal, if one were permitted against, for

example, an acquittal.

Your Honours, in that regard, if I could take

Your Honours to the section for a moment, the point

must arise at the trial for there to be a

reference, that is, in terms of section 669A(2) it

must be a point of law that has arisen at the trial upon indictment of the person, and it is that point

which is referred to the Court of Criminal Appeal

for, as the section puts it -

for its consideration and opinion thereon.

Now, Your Honours, the questions in the particular case appear at page 56 at the record. I shall not take Your Honours to them, but they mirror, in

effect, the words of the section in that they

relate in particular terms to the particular

decisions of the trial judge, Your Honours, so that

one sees that the nature of the proceedings is such

that what is under consideration by the Court of

Mellifont(2) 94 30/4/91

Criminal Appeal is the correctness in a sense of

the decision of the trial judge upon a point of

law.

Now, Your Honours, it may be, of course, that

the question of law which arises is the correctness of a decision by the trial judge, in effect, not to

make a decision but, in any event, it must be a

point of law that has arisen at the trial.

Your Honours, it is true to say that in the case of an accused where the case has not proceeded

to a verdict, the trial cannot proceed if there is

to be a reference, that is, a nolle prosequi must

first have been presented. Your Honours, however,

that is not something which is just for the benefit

of the accused. In the ordinary case, the
circumstances will be that a jury will have been

sworn in, and it is unlikely that the Court of

Criminal Appeal will be able to hear the reference

immediately, and one has to take account of the

fact that the jury would otherwise be in a

situation where they would have to be called back

at some time in the future.

So it is not quite right to say that the only

purpose of requiring that the Court had been

informed that the Crown will not proceed further on

the charge have been indicated, but that is not

just for the benefit of the accused. It is also

for the benefit of the jury.

Your Honours, one should also bear in mind, of

course, that the situation which may obtain in
terms of the section might well be that whilst the

Crown has informed the court that the Crown will

not proceed further on that indictment, and thus a
circumstance arise which would entitle the
reference of a matter by the Attorney to the Court

of Criminal Appeal there is nothing, of course, to

prevent the presentation of a further indictment at

any time thereafter, including immediately

thereafter.

Your Honours, finally, it does not matter, of

course, that there may never be a second trial.
That would be the case even if the Crown were given

a right of appeal against acquittal in the strict

sense. There would be no obligation on the Crown

to conduct a second trial.

Your Honours, so far as the terms of

section 669A are concerned, may I deal with a

second point raised by our learned friends and that

concerns the quality, in legal terms, of the

opinion which is given by the Court of Criminal

Appeal.

Mellifont(2) 95 30/4/91

Your Honours, the first thing is that there is

nothing in the terms of section 669A to suggest

that the opinion of the Court is to be kept private

or limited only to communication to the

Attorney-General and perhaps to his officers.

There would seem to be little point in doing that

if that were the case because one would assume that

if it were to be limited to advice to the

Attorney-General it would not have any precedent value in relation to a later case, whether in the

Court of Criminal Appeal or in a case below.

Your Honours, the term "opinion" used in

subsections (2) and (4) is not a term which is

entirely remote from the conduct in which judges

engage; judges frequently give opinions on various

topics, in a judicial sense, of course. If one

looks at the provisions of the section which lead

to that one sees that they have all the hallmarks

of proceedings which are judicial in character.

Could I refer Your Honours very briefly to the

subject-matters, that is a point of law; secondly,

to the nature of the task upon which the Court is

engaged, that is consideration and opinion thereon;

thirdly, to the requirement of notice to a party;

fourthly, to the fact that the section provides

specifically that there is a right to be heard and,

although our learned friend's argument might hint

otherwise, it is the question of the right to be

heard not whether it is exercised that is

important. And the requirement in subsection (4) that the Court consider the point referred to and furnish to the Attorney-General its opinion

thereon.

Your Honours, whilst there is not an exact

analogy, if I could use that expression again,

between the task imposed on the Court under

section 669A and that which was sought to be

imposed on the supreme court and on the Judicial

Committee by the Appeals and Special Reference Act

of Queensland which was held to be invalid in the

Commonwealth and Queensland. Could I give

Your Honours a reference to that. It is

(1975) 134 CLR 298. There are some observations as

to the function of the Judicial Committee under

that Act which may be germane.

Your Honours, in that regard, what had

occurred had been that the provisions of the

Appeals and Special Reference Act which are set out

relevantly at page 305 had in section 3(1)

purported to empower the Sovereign:

to refer to the Judicial Committee for hearing

and consideration any question or matter to

Mellifont(2) 96 30/4/91

which this section relates, and the Judicial same and advise Her Majesty thereon.

Your Honours will see a broad similarity in terms

between those used there and the terms used in

section 669A.

DEANE J: But does not this to some extent not really

address the critical question? I mean, Mr Davies

says that the function is purely executive; you

are saying it is a judicial function. What if one

is of the view that the function is the sort of

amalgam between judicial and executive which the

strict doctrine of separation of powers would

preclude? One then has to address the question,

well, since the separation of powers does not exist

in that form in the States, when you have what

takes the form of a judicial proceeding but

incorporates executive functions and leads to a

judgment, is there any reason why section 73 does

not embrace that?

MR JACKSON:	Yes.
DEANE J:	And, in so far as what judicial power is

concerned, the essential question must be whether

the appeal to this Court is judicial power,

otherwise it is simply a matter of construction of

section 73 that does not mention the word "matter".

MR JACKSON:  Yes, Your Honour. Your Honour, may I say what

I was going to do was to take Your Honours to one

more passage in this case and then to go on to

say - could I just take Your Honours to the passage

first? It is at page 310 - at the end of the long

paragraph on that page. What was said by

Justice Gibbs with which the other members of the

Court agreed was that:

The question remains whether legislation

having this effect is valid, but that question

is not answered by describing s. 3 as a

provision by which the State is -

empowered -

to obtain legal advice: such a description is

incomplete and misleading.

And, Your Honours, that had been the argument that had been advanced, as appears at page 309.

Now, Your Honours, the final thing I would say

before going on to what Your Honour Justice Deane

has just put to me is that the subject-matters that

might have been the subject of the advice appeared

Mellifont(2) 97 30/4/91

at the bottom of page 305 in section 3(2) of that

Act. So it is possible to say, correctly in one

sense, that the function to be performed by the

Court of Criminal Appeal under section 669A is one

which has more than one side to it. In one sense

it is clear, we would submit, that the court is

exercising a power which is judicial.

The purpose to which the power may be put, or the purpose to which the exercise of the power may

be put, may perhaps have more functions than one.

It may be that the exercise of the power by the court is simply so that it will have a precedent value in respect of a particular case and later, of course, particular classes of case. It may be,

however, that the effect or the purpose for which

the decision is used is to decide whether to charge

other persons. But, in any event, Your Honours,

whilst the purpose for which the decision, as well

as any other decision of the court may be used may

be both judicial and executive, one has to look, we

submit, ultimately at the essential character of

the decision which is made and that is that it is a

decision by the court on a question which is

required to be a question of law.

Now, Your Honours, we would submit - and I

shall not go over the argument that I advanced

before again - that there is no reason why a

decision of that kind is not a decision which falls

within what we would submit is the compendious

statement of a judgment or a decree or an order, if

I could simply select those three expression, in

section 73.

TOOHEY J:  Mr Jackson, I do not know whether any assistance

is to be gained by comparing the procedure under

section 669A with the reservation of points of law

under section 668B. I suspect there is none

because of the difference in language.

Section 668B speaks of reserving a question of law

"for the consideration of the Court" and, of
course, does not use the word "opinion" and indeed,

towards the end of the section provides that:

Any question so reserved is to be heard and

determined as an appeal by the Court.

MR JACKSON:  Yes. Your Honour there is a different

historical base for the provision of section 668,

in the sense that - and, Your Honours, I am sorry,

I do not have it just in front of me at the moment.

Your Honour, provisions of that kind, as I recall it, were the provisions that existed, despite the

way in which the particular one is numbered, prior

to there being a right to a general right to appeal

by an accused person and what was required was that

Mellifont(2) 98 30/4/91

there be, before the conclusion of the trial, a

request for the reservation of points of law by the

judge and that then went to a court, in bank, as it

were, in one way of another, and I use the term

probably inaccurately, Your Honour. The points of

law having been reserved, that court decided them

and the result was, to put it shortlyand again

perhaps slightly inaccurately, that the conviction

either survived or it did not. Of course, if there

were no conviction, although the points had been

reserved, the issue went away.

TTOHEY J: Well that seems to be supported by the fact that

the court must reserve the question on the

application of counsel for the accused, otherwise

there is a discretion.

MR JACKSON:  Yes. The utility of the provision is somewhat

doubtful, Your Honour, in the light of the right to

appeal that now exists, because the right to appeal

is an appeal as of right from conviction, although

there is a discretion, it is by leave, in the case

of sentence, penalty. Your Honours, those are the

submissions I wanted to make in relation to

section 73.

Your Honours, so far as the terms of the

Orders in Council are concerned, our learned

friend's argument is that the words are used in

their ordinary sense but, of course, the ordinary

sense of the term "since" supports our contentions

and not our learned friend's and, on the other

hand, one sees the various indicia contained in the

particular subparagraphs of the Order in Council.

One sees the constant use of the past tense and one

sees the second-last paragraph under paragraph 4.

The concluding date in the revamped paragraph 2

appears clearly enough to have been for a

particular purpose, that is, to investigate

particular conduct. Your Honours, those are our

submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in this matter.

AT 11.10 AM THE MATTER WAS ADJOURNED SINE DIE

Mellifont(2) 99 30/4/91