Mellifont v Attorney-General of Queensland

[1991] HCATrans 60

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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 THURSDAY, 7 MARCH 1991, AT 10.18 AM

Copyright in the High Court of Australia

Mellifont(2) 1 7/3/91

MR D.F. JACKSON, QC:  May it please the Court, I appear

with my learned friend, MR P. NASE, for the

applicant. (instructed by the Public Defender)

MR G.L. DAVIES, OC, Solicitor-General for the State of

Queensland:  May it please the Court, I appear with

my learned friend, MR H.B. FRASER, for the

respondent. (instructed by the Crown Solicitor

for Queensland)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friend, MRS S.C. KENNY, for the Attorney-General of the Commonwealth, intervening in the interests of the applicant on the section 73 point only.

(instructed by the Australian Government Solicitor)

MASON CJ:	Yes, Mr Jackson.
MR JACKSON:	Your Honours, may I say something about the

course of proceedings before entering upon our
complication by what is in effect an objection to jurisdiction contained in the Queensland Attorney's section 78B notice. It gives rise to the question should the Court deal with the jurisdiction issue before turning to the substance of the application for special leave, or vice versa?

substantive argument on the application.

Your Honours, there is no easy answer, in our submission, bearing in mind that the merits on one issue may affect the Court's preparedness to enter

upon the other but, Your Honours, as we would see

it, they are both issues with which we have to deal

and so may I indicate the order in which we would

propose to deal with the issues, bearing in mind,

if I may say so, that we are happy to deal with the
case in whatever order the Court regards as

appropriate.

We would propose to go first to the question

of jurisdiction - not fully, I hasten to say - but
go first to the question of jurisdiction and then
to the substantive issues meriting special leave,

in each case initially to the point apposite on the

special leave application.	Your Honours, may I
proceed to do that?

So far as the question of jurisdiction is

concerned - - -

MASON CJ: 

Mr Jackson, before I make an announcement for

the convenience of counsel in the next case, at one
stage I think the Court received some intimation

that there might be an application for an

adjournment in relation to this case .. That was

Mellifont(2) 2 7/3/91

because there is another case raising similar

jurisdictional issues which I understand to have

been tentatively fixed for hearing on 30 April.

Now, is it clear at this stage of this case that it is going to proceed today, that there is no

question of adjournment of it?

MR JACKSON:  I must say that I was not personally aware that

the possibility of the case being adjourned, to use

that expression, had been raised. So far,

Your Honour, as our position is, if the matter were

to be listed with the other matter, we are

perfectly content with that course.

MASON CJ:  I am not suggesting that that should be done, but

I wanted to ensure at this stage that we knew this

case was proceeding before I sent counsel away on

the other case to a later time in the day.

MR JACKSON:  Our position, Your Honour, is that we propose

to proceed with the application. What I had

thought might be the position is that the Court

itself might take the view that at some point the

case, if it thought there was something in it,

should perhaps be heard or heard further at the

same time as the other matter. If the Court took

that view we are content. If, on the other hand,
the Court took the view now that that should

happen, again we are content.

MASON CJ: Well, perhaps I should ask the other counsel in

the case whether they are content to proceed today.

Mr Solicitor for Queensland?

MR DAVIES: Yes, Your Honour,· we are content to proceed

today.

MASON CJ:	Mr Solicitor for the Commonwealth?
MR GRIFFITH:	Your Honour, we did get very late notice, but

we are content to proceed today.

MASON CJ: Very well, the case will proceed today, and I

think I can say in the circumstances, Mr Jackson -

and you correct me if you think I am wrong - that

we will not proceed beyond this case before the

adjournment at lunch.

MR JACKSON:	Your Honour.
MASON CJ: yES.
MR JACKSON:	Your Honours, may I commence then by dealing with the question of the Court's jurisdiction?
Your Honours, may I say in that regard one or two
matters dealing with the precise way in which the case gets to the Court in the first place, or is

Mellifont(2) 3 7/3/91

sought to come before the Court. Your Honours, the

applicant has been charged with perjury, an offence

which is constituted under section 123 of the

Criminal Code. Perhaps I omitted to say

Your Honours have, I think, a copy of our outline

of submissions and I think I did not refer the

Court specifically to that.

MASON CJ: Yes, we have.

MR JACKSON:	Your Honours, the terms of the count of perjury are set out at page 24 of the record and
Your Honours will see that the charge is that the
applicant at a commission of inquiry constituted by
two orders in council:

knowingly gave false testimony to the effect

that he ..... had not in the last ten years

operated a bank account in a name other than
his own or -

another pseudonym. Now, Your Honours, as appears

at page 25, lines 20-40, the trial judge at the

close of the Crown case made rulings which, if

correct:

were fatal to the Crown case. The prosecutor

asked for the return of the indictment ..... and

a nolle prosequi was entered -

and that, of course, brought the proceedings before

the trial judge to an end. However, that was not

the end of the matter, if I could use the
expression "inexactly".

Your Honours, the procedure of section 669A of the Criminal Code was invoked by the

Attorney-General and I wonder if I could take

Your Honours to that provision now.

Your Honours, it is at page 8065 of Carter's

Criminal Law of Queensland. Now, Your Honours will

see first, that subsection (1) deals with a matter

not presently germane and that is, an appeal by the

Attorney-General against sentence. The provisions,

however, which are germane commence with
subsection (2) and Your Honours will see that

subsection (2) empowers the Attorney-General to: refer any point of law that has arisen at the

trial upon indictment of a person in relation

to any charge contained -

in the indictment -

to the Court -

Melli font 4 7/3/91

Your Honours, the court meaning the :ourt of

Criminal Appeal -

for its consideration and opinion thereon if -

and then two circumstances are mentioned. The

first of them is if there has been an acquittal,
the second if there has been a discharge in respect

of the charge in the indictment -

after counsel for the Crown, as a result of a

determination of the court of trial on that

point of law -

Your Honours, if I could pause at that point, that

point of law seeming to refer back to the point of

law mentioned in the opening words of

subsection (2) -

has duly informed the court that the Crown

will not further proceed upon the indictment

in relation to that charge.

Now, Your Honours will see also that subsection (3)

provides that:

Notice of the reference shall be given to the

person acquitted or ..... discharged.

The court, subsection (4) hears argument, by or on

behalf of -

the Attorney-General -

and by or on behalf of -

the person acquitted or ..... discharged -

if that person so desires, and having done so the

court considers the point and refers to the

Attorney-General its opinion on it.	Your Honours,
subsection (5) says that if there has been an

acquittal "the reference" and presumably it means

the result of the reference -

shall not affect the trial of nor the

acquittal of the person.

Now, Your Honours, could I also say that there is

provision contained in the Appeal Costs Fund Act

for the costs of the accused person, if I can call

it that, occasioned by representation on such a

hearing to be paid out of government funds or out

of the appeal cost fund, I should say.

Your Honours, could I also mention in passing

that in the present case the Court of Criminal

Mellifont(2) 7/3/91

Appeal's decision is not academic because the

applicant is to be proceeded again once more. That

appears at page 63, paragraph (p). I would also

mention in passing, and I shall return to it a little later, the next trial will be the third

occasion on which the indictment has been presented

and the trial proceeded.

Your Honours, what I have said so far brings

me to the Court's decision in Saffron v Reg,

(1953) 88 CLR 523. It brings me to that case

because it was there held that the provisions of

section 5A(2) of the New South Wales Criminal

Appeal Act did not give rise to a decree, judgment, order or sentence which could be the subject of appeal to the Court under section 73 of the Constitution.

DEANE J:  Mr Jackson, was the accused entitled to object to

the Crown withdrawing the indictment and to insist

on a verdict by direction or a verdict?

MR JACKSON:  Your Honour, he was entitled to object and did

object. It appears at page 25 between lines 30

and 40. His counsel objected, the matter was

argued but, in the end, the judge permitted the

return of the indictment.

DAWSON J:	Has the judge any discretion in the matter?
MR JACKSON:	Your Honour, the answer, one might have said

some years ago, was no; the answer today appears

to be yes. There is a decision of the Court of

Criminal Appeal to the effect that the judge has a

discretion and that in appropriate cases the judge

might decline the request for the return of the

indictment, require the matter to go to the jury

and a verdict taken. Could I give Your Honour the

reference to that case in just a moment. I think

it is Reg v Jell, one of the cases referred to in

our list of cases.

Your Honours, if I could go then to Saffron's

case. I wonder if I might take Your Honours first

to the headnote to indicate the nature of the

provision in question. Your Honours will see that

it empowered the judge, in effect:

before whom a person is tried and acquitted
shall, if requested by counsel for the Crown
upon or after the conclusion of the trial,

reserve for decision by the Court of Criminal

Appeal any question of law arising at or in

connection with the trial.

And the question was to go to the Court of Criminal

Appeal for decision and that court had power to

Mellifont(2) 6 7/3/91

determine the question reserved. And Your Honours,

the last paragraph of it, similar to the last

subsection of section 669A, that:

The determination by -

that court would not -

affect or invalidate any verdict or decision

given at the trial.

The applicant had been acquitted although it is

correct to say - he was charged with perjury and

although it was correct to say, Your Honours, that

the possibility of being on a further charge of

perjury arising out of other evidence was also

mooted.

Now, Your Honour, if I could go from that to

page 527 in the judgment of Chief Justice Dixon

with which Justices Kitto and Taylor agreed,

His Honour said at the bottom of the page that the: jurisdiction to entertain appeals is one

conferred bys. 73 of the Constitution, and it

is a jurisdiction to hear and determine

appeals -

and so on. He referred to the proposition that:

When a court was authorized by legislation to

give an advisory opinion, no matter what

language is used, its opinion is not a

judgment, decree, order or sentence from which

an appeal lies.

His Honour goes on to say at about a quarter of the

way down the page that the present section was

quite definite in providing that the determination

by the Court of Criminal Appeal did not affect any

verdict, the acquittal remained undisturbed.	He
referred to the fact that the use of the expression

"determine" was not determinative, if I could put

it that way, Your Honours, and said at the end of

the first paragraph on that page:

The rights and liabilities involved in the

charge have already been determined. The

acquittal of that person has determined that

he is not guilty, and that determination is to
remain entirely unaffected.

I think that there can be no question that the decision of the Court of Criminal

Appeal cannot affect the rights of the person

who has been acquitted, or his liabilities.

It can operate only as a judicial precedent,

Mellifont(2) 7 7/3/91

having at best the effect which in English

jurisprudence is afforded to the decisions of

a court as precedents. That is an entirely

different thing from binding a right or

creating a liability, or precluding a person

who asserts a right or denies a liability.

Your Honours will see the particular reference in

the next and last paragraph was placed on the fact

that he was:

not affected in respect of his rights or

liabilities by the determination.

Now, the first question which arises is whether

that case applies to the present case. If it does,

Your Honours - and I will come to that question in

just a moment - we would then seek leave to

re-argue its correctness and the correctness of the

line of decisions of which it forms part, and could

I say - and again I will come to this in more

detail - - -

MASON CJ:	Mr Jackson, I do not think one need worry about the formalities. In the circumstances you may put such argument as you wish to in connection with the
old authorities on section 73.
MR JACKSON:	Your Honours, I wonder if I might first just

say one more thing about Saffron's case and in

relation to the present case.

In that case the applicant, of course, had been acquitted and in relation to those charges the

decision was academic. I should also say,

Your Honours, in this case the applicant is to be

retried in the same court. The court of trial must

apply the decision of the Court of Criminal Appeal

as a matter of precedent. The only differences

between that circumstance and the circumstances

where there have been an estoppel are that the

decision of the Court of Criminal Appeal is not
binding in two circumstances.	One is it is not

binding if there were, and it seems a fairly

academic proposition if there were some other

proceedings. The second circumstance is that if

the law changes the judge at the trial can apply
the law as so changed which would not be the case

if there were an estoppel binding between the

parties.

Your Honours, in that regard could I just say

that the difference between an estoppel on the one
hand and the binding effect of the precedent on the
other hand whilst it exists as a legal difference,

in fact, as a practical difference matters little.

Mellifont(2) 8 7/3/91

Having said that could I turn then to the

terms of section 73 of the Constitution which is

the starting point for a discussion of the Court's

jurisdiction. Your Honours, one sees in

Chapter III that section 71 has conferred the

juridical power of the Commonwealth on the Court,

and on such other courts as are invested and so on.

When one comes to the jurisdiction of the

Court, the jurisdiction of the Court is expressed,

of course, in two ways: one, as to appellate

jurisdiction, the other as to original

jurisdiction. The wording used in the two classes

of provisions differs. It differs in this way:

first, if one goes to the question of original

jurisdiction what Your Honours will see is that

both sections 75 and 76 fasten upon the term

"matters" or "matter" as the case may be, and that

there is a significance contained in the term

"matters" is to be seen in a sense, or has some

light cast upon it by section 77 because

section 77, the provision which empowers the

investment of jurisdiction in State courts or

conferral of jurisdiction on federal courts, says

that the laws may be made -

with respect to any of the matters -

referred to in the preceding provisions.

Now, Your Honours, could I just say one more

thing about those provisions. It is obvious, of

course, and Your Honours I shall not labour the

point, that some term such as "matters" was

necessary to do a number of things.

One was to be a compendious description which would cover the different types of cases, the

different structures of cases to be found both in

sections 75 and 76, some depending on

subject-matter, some depending on parties and so

on.

Your Honours, the second thing is that the

term "matters" appears to have been used to convey

some notion about subject-matter - and I use that

term loosely for the moment. What I mean to convey

by it is that when the term "matters" is used and

conveys that notion, the notion which it is

conveying, is the one which derives substance from

the opening words of section 71 and that is that

the power to which it relates is judicial power and

not some other power to be exercised in some other

way.

Your Honours, I am sorry to have taken a

moment saying that but I have done so in order to

Mellifont(2) 9 7/3/91

contrast the provisions there in original

jurisdiction which turn upon matters - I am sorry,

Your Honours, I will start again. I have done that

to contrast sections 75 and 76 with the way in

which section 73 is expressed.

Your Honours, section 73 says that:

The High Court shall have jurisdiction ..... to

hear and determine appeals from all judgments,

decrees, orders, and sentences -

then defines the courts from which appeals may be

brought.	One sees then three qualifications to
that principle.	One is that contained in the

opening words of section 73, namely:

with such exceptions and subject to such

regulations as the Parliament prescribes -

and, Your Honours, the legislative power there

conferred has been exercised in such a way that

today matters come before the Court by way of

appeal subject to the grant of special leave.

Your Honours, the second and, if any question arose of a floodgates argument or floodgates

situation being one which would result from the

acceptance of the propositions which we are seeking

to advance, we would urge that first there is now

the provision for special leave. It is unlikely,

one would think, that a provision of that kind

would not continue to exist or, alternatively, that

some other filtering mechanism would not replace it
if it were to be removed. Your Honours, one cannot

predict the future, of course, but the growth of
the population, the increase in the size of the

intermediate appellate courts and the development

of the nation as a whole, in our submission, makes

it unlikely, although one cannot be certain, that

that situation would change.

Your Honours, the next feature is this, of

course, and it does cast some light upon the ambit
of the terms contained in the opening words of

section 73. It is the presence of the second

paragraph and that is that:

no exception or regulation prescribed by the

Parliament shall prevent the High Court from

hearing and determining any appeal from the

Supreme Court of a State in any matter in

which at the establishment of the Commonwealth

an appeal lies from such Supreme Court to the

Queen in Council.

Mellifont(2) 10 7/3/91

Now, Your Honours, what that provision seems

to do is to day that the Court has jurisdiction to

entertain the appeals contemplated in the opening

words of the section. Those appeals include at

least, so far as the supreme courts of States are

concerned, appeals in matters where at the

establishment of the Commonwealth an appeal would

lie from the supreme court to the Queen in Council.

Now, Your Honours, what that tends to indicate

is that the jurisdiction of the court is not

lesser, if I could put it that way, than was the

jurisdiction of the Judicial Committee.

Your Honours, the other feature is that one might

doubt, we would submit with respect, that the

expression "matter" is being used in any especially

technical sense in that paragraph of section 73.

Your Honours, I am conscience in saying that in

some of the earlier cases in the court there has

been a general statement, or the general statement

is to be found that said the term "matter" is used

throughout the chapter as having the same meaning
wherever it appears.

Your Honours, certainly it has some aspects of

the same notion and that is that the proceedings
are to be an exercise of judicial power but, at the

same time, we would submit, the term "matter" is

not used in any particularly exact way in that
paragraph of section 73 other than to convey the

notion that where there was an appeal to the Privy

Council there is an appeal to the court.

Now, Your Honours, one comes then to the third

aspect of section 73 and that is contained in the

last paragraph, Your Honours, now of historical

interest and of former application, but what it

seems to say is that:

the conditions of and restrictions on appeals
to the Queen in Council from the Supreme

Courts of the several States shall be

applicable to appeals from them to the High

Court.

Now, Your Honours, it does not say very much, of course, but what it does do is, in our submission,

to re-enforce the view that one derives, we would

submit, from the preceding paragraph and that is

that whatever might have gone to the Privy Council

comes to the Court, or can come to the Court.

Now, Your Honours, having said that could I

go, in a sense, in two directions, not I trust at

the same time. What I wanted to do first was to

indicate the classes of cases that one might have

regarded as not being within the juri~diction of

Mellifont(2) 11 7/3/91

the Judicial Committee and, on the other hand, some

of the cases which were. The second thing I would

like to do then is to move to the cases which have

dealt with the operation of section 73, the cases

in the Court.

Your Honours, I can do the first of those things relatively shortly. Might I start by

referring the Court to Australian Consolidated

Press v Uren, (1967) 117 CLR 221. I should also

have said one further thing before moving to it and

that is perhaps to state the obvious and that is
that the words "judgments, decrees, orders and

sentences", of course, are very wide and I refer

particularly to the expression "orders".

In Australian Consolidated Press Limited v

Uren, (1967) 117 CLR 221, the Privy Council held

that it had jurisdiction on appeal by a successful

party below to review a question of law which would

arise in the future conduct of the proceedings.	I
have to go to a number of pages.	May I start at
page 226.

The issue of substantive law was the

principles apposite in the assessment of exemplary

damages, either in defamation or perhaps more

generally. At page 226, after reciting what had

occurred, Lord Morris said, about a third of the

way down the page:

In the present case the appellant's appeal -

that is the appellant to the Judicial Committee

was by a majority allowed.	A new trial on all
issues was directed.

So that, Your Honours, what is apparent is that the

appellant to the Privy Council succeeded entirely

below. His Lordship goes on to refer, in the next
paragraph, to the fact that there had been a

division of opinion on exemplary damages and, in

effect, although the appellant had succeeded in the

case in obtaining a new trial as to damages, it had

lost the argument on the question of whether

exemplary damages might be awarded.

At the bottom of page 226, His Lordship

referred to the fact that:

The appellant then presented a petition

by which it sought special leave to appeal

"from so much of the" -

Court's -

Mellifont(2) 12 7/3/91

"decision ..... as held that Rookes v Barnard

was wrongly decided."

At the top of the next page, he refers to the

fact that:

counsel for the appellant stated that there

was nothing contained in the -

Court's -

order ..... that he wished to have altered.	He
had succeeded in obtaining an order for a
general new trial.

But had lost, as I said before.

Your Honours, from there one goes to page 228

where, in the first new paragraph on the page, the

objection which was taken was that the Judicial

Committee had no jurisdiction to entertain the

appeal under section 3 of the Judicial Committee

Act because there had been a new trial on all

issues ordered and, Your Honours, could I refer

Your Honours to the passage going down to about

two-thirds of the way down the page where the point

which was sought to be advanced was that because it
was not sought to vary any order of the court

below, as it were, the appeal was not competent.

Now, Your Honours, from there one goes to

page 229 where, in the first new paragraph on the

page His Lordship says:

In the view of their Lordships, leave to

appeal was granted in the present case under

the ample powers of the prerogative. Within

those powers the grant of leave to appeal

endowed their Lordships with jurisdiction.

Their Lordships so ruled. The question as to

the extent to which any ruling as to principle

Your Honours, I should say just in passing that one should be given became a matter of discretion.

might think from those words that His Lordship was

saying this is not a matter where there is a right

to appeal, albeit requiring leave or special leave,
but was rather saying instead this is a matter
where the Sovereign may permit a matter to go to
the Privy Council even though it is not a matter

where there is an appeal, albeit with some

requirement for leave. Your Honours, the later

parts of the case indicate that is not the case.

Your Honours, in the next paragraph there is a

reference to Hull v McKenna, and then in the last

paragraph on page 229:

Mellifont(2) 13 7/3/91

While their Lordships will adhere to

their practice of declining to give

speculative opinions on hypothetical
questions, their Lordships cannot think that
the questions now raised are to be regarded as

hypothetical.

His Lordship referred to Ontario v Hamilton Street

Railway Co., and then said in the first last line

on the page:

The present appeal relates to the decision of the High Court as to the law to be applied in

an actual case which is shortly to be retried.

Your Honours, might I pause to say so is this case.

DAWSON J: Is that right?

MR JACKSON:  Yes, Your Honour. I am sorry, Your Honour, the

only difference - - -

DAWSON J: There are no proceedings on foot at the moment.

MR JACKSON:  Your Honour, I am quite conscious of that.

Proceedings do not start until the indictment is

presented, Your Honour, I accept that entirely.

But the observation which His Lordship made, and

which I was seeking to say was apposite for present

purposes, was that the observation was that the

appeal relates to a decision -

as to the law to be applied in an actual

case -

Now, it is only those words, with respect Your

Honour, with which one might cavil -

which is shortly to be retried.

Now, the retrial does not start, of course, until

the presentation of the indictment. That is

because of a provision of the Criminal Code that

says it is the ttime when the trial starts.

Having said that, Your Honour, one is in a

position where the applicant has been informed that

a new indictment is to be presented against him.

Now, it is right to say, of course, Your Honour,

the trial has not started. It is right to say
there are no proceedings in being today. But,

Your Honour, it is equally right to say that there are proceedings to be brought against him in which the same issues will arise.

His Lordship went on to say:

Mellifont(2) 14 7/3/91

The circumstances differ from those in R v

Lauw where it was sought to have determination

of "an abstract point of law which did not

arise in the case".

Your Honours, if I could go then to the next page, Lord Morris says:

The contention advanced on behalf of the

respondent that "the appeal herein is not

within the jurisdiction of the Judicial

Committee under section 3 ..... " is not valid.

He sets out the provisions of the section and,

Your Honours, if I could just extract some of the

words of that rather lengthy provision:

"All appeals or complaints in the nature

of appeals whatsoever ..... from or in respect
of the determination, sentence, rule or order

of any Court, judge or judicial officer, and

all such appeals as are now pending and

unheard, shall from and after the passing of

this Act be referred ..... to the said Judicial

Committee of the Privy Council -

and be heard by it.

McHUGH J: That is the essential difference between that

section and section 73, is it not, that all that

section 3 of the Judicial Committee Act did was to

direct who should hear appeals and the appeals lay

under the prerogative? This section does not lay

down the conditions of an appeal to the Privy

Council.

MR JACKSON: Section 3, Your Honour?

MCHUGH J: Yes.

MR JACKSON:	Yes, that is right, Your Honour.
McHUGH J: At the moment, I am not following how this helps

you.

MR JACKSON:  I am sorry, Your Honour, what I am seeking to

say is this: that it is clear, we would submit,

that under section 73, whatever might be the outer

limits, if I can put it that way, or perhaps

whatever might be in the absence of the second

paragraph of section 73, the inner limits of it,

one does see that the second paragraph of

section 73 indicates that the ambit of the Court's

jurisdiction to entertain appeals is not to be less

than that which the Privy Council had to entertain appeals. It may be that the two are the same. It

may be that the Court's jurisdiction, if the second

Mellifont(2) 15 7/3/91

paragraph of section 73 were not there, would not

be as wide as that which the Privy Council had.	It
may be that if one reads the two paragraphs

together, the Court's jurisdiction is wider than it

would be if that paragraph were not there because

of the influence of the second paragraph on the

ambit of the first paragraph.

What I am seeking to Your Honours is that if

one looks at the particular case, Uren's case,

whilst it is true to say it is decided years after

Federation, at the same time - and Your Honours I

have not quite come to the most relevant passage of

it yet - what it does demonstrate, in our

submission, is that proceedings of the kind

presently in question are proceedings which, in our

submission, would fall within the jurisdiction of

the Privy Council.

McHUGH J:  You have to read the second paragraph not as a

true proviso as the first paragraph 73 but as an

extension of it, in effect.

MR JACKSON:  That is one approach to it, Your Honour. What

we would submit is - the first submission, if I can

put it this way, is that the terms of section 73

confer on the Court a jurisdiction at least as wide

as that of the Privy Council. We would say that so

far as that jurisdiction is concerned, that the the

expression "judgment" is sufficiently wide to cover

a decision of the supreme court of the nature in

question in this case. Your Honour, I will need to

come to the reasons for that a little more but that

is the first proposition we would put.

Secondly - and we really put it as an

alternative - if it be the case that the

jurisdiction under the first paragraph would not be

wide enough to cover a case like this, the presence

of the second paragraph has the effect that the

jurisdiction is somewhat wider and a case of this

kind, in our submission, would have been one

capable of being entertained by the Privy Council

and, therefore, the Court has jurisdiction.

Dealing with section 3 at page 230 in the

paragraph starting half-way down the page

Their Lordships deal with section 3 and refer

particularly to the fact the words of the section

covered appeals and:

"complaints in the nature of

appeals ..... "from" or "in respect of" the

determination, sentence, rule or order of any

court.

Mellifont(2) 16 7/3/91

Then at the bottom of that page and particularly at

the top of the next page, page 231, Their Lordships

say:

On a retrial of the respondent's action

against the appellant a learned judge would

follow the guidance given by the High Court.

I would hope, Your Honours, that anyone would:

If there were a decision adverse to the appellant it would wish by appropriate appeal procedure to seek to obtain a judgment of the Privy Council that the directions of the learned judge were incorrect. It cannot

therefore be said that the issue which the

appellant has raised is merely academic.

Your Honours will see about half-way down the same

paragraph:

counsel for the appellant made it clear that what he sought was a ruling as to whether it

would be competent to award punitive damages

in the future course (i.e. the rehearing) of

this case. The matter in issue would seem

therefore to be within the scope of what was

referred to in Bertrand's case where the
prerogative was described as "the inherent
prerogative right and on all proper occasions,
the duty, of the Queen in Council to exercise

an appellate jurisdiction, with a view not

only to ensure, as far as may be, the due
administration of justice in the individual

case, but also to preserve the due course of

procedure generally".

In circumstances which are somewhat

special and are not often likely to arise

their Lordships held therefore that they had

jurisdiction to hear the limited matter

referred to them.

I should also mention a further decision of the

Judicial Committee in Oteri v Reg, (1977)

51 ALJR 122. I mention that really for

completeness, first because it deals with

provisions rather similar to those in Saffron's

case, and whilst it does not decide any point

relevantly, it simply refers to an argument which

had been put to the Western Australian court to the

effect that the matter could not go to the Privy

Council because the Privy Council had no

jurisdiction. That is at page 123 in the right

column between letters F and G where Your Honours

will see:

Mellifont(2) 17 7/3/91

It was resisted -

the "it" being an application to the Full Court for

leave to appeal -

on the ground that the Order ..... was not a

decision of the Court within the meaning of

the Order in Council but was a mere advisory

opinion from which no appeal would lie. This

contention was rightly rejected by the Full

Court. They granted leave to appeal.

Their Lordships then go on to refer to the fact

that in fact the case was not one that would have

come under the order in any event because it was a

criminal case and the Order in Council did not deal

with criminal cases, but I simply mention it

because it does deal with the same topic.

Now, Your Honours, as to the range of cases

which might or might not fall within the

jurisdiction of the Privy Council, it is clear, in

our submission, that the Privy Council did pay

regard to the question of the nature of the

proceedings and by that I mean, paid regard to the
subject-matter of the proceedings in terms of the
nature of the questions involved and, secondly, to
the nature of the approach to be taken which had

been taken or was required to be taken by the court

from which the appeal was sought to be brought.

Now, Your Honours, may I do two things in that

regard? The first, I refer Your Honours to a

summary of the leading cases which indicate the

cases where the Judicial Committee would not

entertain an appeal and secondly, to take

Your Honours to one of the leading cases on the

point. Your Honours will see a summary of them in

the digest as it is now called. It is,

Your Honours, in volume 8, subvolume (2), the

relevant pages being pages 463 through to page 466,

appeals entertained" - now, Your Honours, I do not	and under the heading on page 2, "From what courts
want to go to all these cases but what they do tend
to show is that the Privy Council regarded some
cases as not being matters which might properly be the subject of an appeal because of the subject-matter, some because of, perhaps, the subject-matter and also the way in which they were
to be dealt with by the body in question although it was, in fact, a court.
Could I in that regard, Your Honours, refer to the cases listed under that heading and
Your Honours will see the various classes of cases there referred to. Election cases seem to be
popular, seem to be unpopular, I suppose I should

Mellifont(2) 18 7/3/91

say, but a statement of general principle - and, Your Honours, perhaps I should also say one other

thing:  Your Honours will see under the case

numbered 3787 that various other cases are there

referred to. They seem to be applications of the

general proposition stated in the case to which

there are annotations without developing the

principle very much one way or the other. But I

wanted to take Your Honours to the case which is No
Moses v Parker Ex parte Moses, was a - if I might just say something about it

3791 which is (1896)

first. The case dealt with Crown lands and there

was a provision, initially, for disputes concerning

ungranted Crown land to be dealt with by certain

commissioners, and Your Honours will see that

referred to at the bottom of page 246.	What the
commissioners had to do:

was to report to the governor who -

of the disputants -

was "in equity and good conscience" entitled

to a grant.

and as Their Lordships say -

They were expressly relieved from all rules of law, and all technicalities and legal forms -

and also -

The governor was not bound by such reports.

Now, Your Honours, Their Lordship said at the end

of the first paragraph on page 247:

It is obvious that his decision could not

possibly be open to a judicial appeal.

Those days, perhaps, were more primitive days in

terms of administrative law than one has today and,

perhaps, various aspects of it might have been

subject to challenge but what happened then,

Your Honours, there was a change in the

legislation. That appears in the next paragraph on

page 247. The law was changed to refer the

question to the supreme court and in deciding upon
such questions, once again, and the statutory

provision is in the middle of page 247, the court

was to:

be guided by equity and good conscience only,

and by the best evidence -

Mellifont(2) 19 7/3/91

whether admissible in ordinary cases or not and

not -

bound by the strict rules of law or equity in
any case, or by any technicalities or legal
forms whatever.

At the bottom of page 247, Their Lordships said:

they were led to the further question of
whether the subject-matter is one to which the
prerogative of granting appeals from courts of

justice can apply.

And they went on to say, in the first new paragraph

on the next page that they thought the:

doubt is well founded. They cannot look upon

the decision of the Supreme Court as a

judicial decision admitting of appeal.	The
Court has been substituted for the commissioners to report to the governor.

And, Your Honours, they elaborate upon that

proposition throughout the whole of that paragraph. The point that Their Lordship seek to make, whether

one looks at it from the point of view of the

subject-matter of the matter with which they were
dealing, namely what in the end was something that
might or might not result in the exercise of an
administrative discretion in favour of the
successful party, to put it loosely, or whether one

looks at it from the point of the view of the

procedure involved; namely the degree of looseness

involved was such that the decision could not be

one that was to be regarded as having to be made

judicially, but, whichever approach be taken, it
seems apparent that Their Lordships took the view
that there could not be an appeal because there was

not a judicial decision or the exercise of judicial

power of any kind in that case. They refer, at the

bottom of the page and through the remainder of the

decision, to the earlier decision in Theberge v

Laudry to the same effect.

Your Honours, from there we would seek to go

to the Court's decisions dealing with the question

whether an advisory decision, to put it loosely for

the moment, is one which may be capable of being

the subject of an appeal. And, Your Honours, the

starting point is In re the Judiciary and

Navigation Acts, (1921) 29 CLR 257.

Your Honours, In re the Judiciary and

Navigation Act was concerned with original

jurisdiction but it seems to provide. that the

starting point for any consideration of the ambit

Mellifont(2) 20 7/3/91

of the Court's power to entertain appeals under

section 73. And it seems to do so, with respect,

Your Honours, because - and I say so, of course,

with respect - there was a simple moving over of

the restrictions imposed by the nature of matter in

original jurisdiction to the provisions of

section 73 when one sees the only reference to

matter in 73 is that contained in the second

paragraph of it. The word "matter" does not appear, of course, in the first paragraph of

section 73, the one which confers jurisdiction on

the Court.

Now, Your Honours, could I go to the joint

judgment of Chief Justice Knox and Justices Gavan, Duffy, Powers, Rich and Starke, which commences at

page 263. At page 264 Their Honours set out the

various sections of Chapter III and commence

relevantly about three-quarters of the way down the

page. They paraphrase section 71. They say then

six lines from the bottom of the page:

Secs. 73 and 74 deal with the appellate powers

of the High Court, and we need make no further

reference to those sections as it is not

suggested that the duty ..... is within the

appellate jurisdiction of this Court. Sec. 75

confers original jurisdiction -

and they refer also to section 76. Now, one sees

at the bottom of the next page, page 265, the

familiar reference to the nature of "matter" in

sections 75 and 76 and, Your Honours, that

commences about three-quarters of the way down the

page, and it is apparent if one looks at the

preceding parts of page 265 that the Court was

there dealing with original jurisdiction. At page

266 Their Honours say in about the sixth line on

the page:

The word "matter" is used several times in

Chapter III of the Constitution and always, we

think, with the same meaning.

Your Honours, there is not, with respect, any

particular reason, in our submission, why that

should be so. It is clear, of course, if one is

dealing with sections 75 and 76 that in so far as

they speak of "matters" it would seem apparent that

the term "matters" is used as a compendious phrase

to describe litigation on the one hand, to describe
controversies on the other hand, and to describe
matters requiring legal resolution in respect of
the various matters, if I can use the word again,

in the several subsections of the sections.

Mellifont(2) 21 7/3/91

But, Your Honours, the way in which the term

"matter" is used in section 73 is that it is not

really used to describe what is the jurisdiction of

the Court, but is used in a way to describe the

fact that there shall not be provisions which

prevent an appeal in "matters" which one might

think, with respect, in the context means "cases"

where there might have been an appeal to the Privy

Council.

Your Honours, the expression one sees at

page 266 -

The word "matter" is used several times in

Chapter III of the Constitution and always, we

think, with the same meaning -

in a sense provides one of the bases for the view

that the Court does not have an appellate

jurisdiction in any matter which - and the word, of

course, can be used in many contexts - does not

have an appellate jurisdiction where the decision

of the court from which the appeal is sought to be

brought is one which does not have an immediately binding effect on the parties otherwise than as a

matter of precedent. But, in our submission, it is

not the correct basis for adopting that view.

Your Honours, could I go on to the bottom of

page 266. In the last five lines of the page

Their Honours say:

All of these opinions indicate that a matter

under the judicature provisions of the

Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act

inhibited by law. The adjudication of the

Court may be sought in proceedings inter

partes or ex parte, or if Courts had the

requisite jurisdiction, even in those

administrative proceedings with reference to	the custody, residence and management of the
affairs of infants and lunatics.

But the qualification they impose upon it is seen

in the next sentence, at the top of page 267:

But we can find nothing in Chapter III ..... to

lend colour to the view that Parliament can
confer power or jurisdiction ..... to determine

abstract questions of law without the right or

duty of any body or person being involved.

Now, Your Honours will see that that expression -

and I am sorry to be seeking to construe it a bit

Mellifont(2) 22 7/3/91

like a statute - has two elements.	One is that
there is nothing:

to lend colour to the view that Parliament can

confer power or jurisdiction ..... to determine

abstract questions of law -

the other is -

without the right or duty of any body or

person being involved.

Now, Your Honours, it might well be correct to say,

if one was saying about original jurisdiction, that

a view could be taken that Parliament might not:

confer power or jurisdiction upon the High

Court to determine abstract questions of law -

if one meant by that that the determination of

questions could have no operation upon anyone other

than the public as a whole. But, Your Honours, if

one is talking about the determination of questions

of law which relate to the rights and liabilities,

or potential liabilities of particular identifiable

people and in circumstances where the decision of

the court on those rights and liabilities is one

which must be followed by courts which have to deal

with those rights and liabilities then it is

difficult, in our submission, to describe the point

involved as being a point of law which is - a

question of law, which is a question which is

abstract.

It may be, of course, that the proceedings to which it relates prospectively never go ahead. It may be whether the proceedings are in being or are

merely contemplated, that in the end nothing comes

of them but there is no degree of abstraction, in

our submission, sufficient to require one to treat

the case as being one where the no exercise of

judicial power is involved.

DAWSON J:  You could say the same of any advisory opinion,

could you not, if this Court was asked to determine

which, if any, sections of the Trade Practices Act

are beyond power? No doubt there are cases which

are on foot in relation to various sections of the

Trade Practices Act;	no doubt there are cases in
contemplation;	no doubt there are parties which
would be affected by the Court's determination.	It
remains an advisory opinion.

MR JACKSON:  What Your Honour says is no doubt right in the

sense that if one is not focusing attention upon

particular circumstances, or the circumstances of particular cases, well then it might be said that

Mellifont(2) 23 7/3/91

all you have is a circumstance where the decision

is one which would declare the general law as

declaring something which would apply to particular

cases. Now, I am conscious of the fact,

Your Honour, that one can reduce the class and still have a class but having said that there must

be an element of degree involved.

The point I am seeking to make is that one is

not talking about something that is original

jurisdiction and saying, "Is that a matter for the

purpose of section 75 or jurisdiction conferred

under section 76?". What one is asking is whether

under section 73 there is something which is a

judgment, decree, order or sentence to be the

subject of appeal.

Now, there is not any especially compelling

reason, in our submission, why one takes what has

been determined in, say, the Judiciary and

Navigation Act, why one takes that, all of which is

based upon the concept of "matter'' in section 75

and section 76 and then the tail of that dog, as it

were, wags the head of the dog, in section 73.

BRENNAN J:  Mr Jackson, what would have been the situation

had there not been an intimation of a proposal to

reindict?

MR JACKSON:  Your Honour, it would depend a little on the

facts, if I could put it that way. If the position

were that there was an intimation that there was no

intention to reindict or, indeed, there was an
intention not to reindict, then the position would

seem to be not very different, I suppose, from that

in Saffron's case, because one could not say that

the applicant was in a position where he might be

in any way affected by it, and perhaps one would

then have something that would not be a

determination by the Court for the purposes of an

appeal.

Can I just say two things about that: one is

that one would then be coming close to a situation

where the nature of the function being performed by

the court, and by that I mean the Court of Criminal

Appeal, would be a function similar to that in some

of the cases which I referred to in the extracts

from the digest that I gave Your Honour; but if,

on the other hand, the proceedings before the Court of Criminal Appeal were proceeding where one of the purposes of them was to declare the law applicable

to the future prosecution of the applicant then,

Your Honour, one has the situation where the

proceedings have two characters.

Mellifont(2) 7/3/91

Now, I am conscious in saying that that the

consequence of what I put is that the character of

the proceedings in the Court of Criminal Appeal

might change if, for example, in the course of

proceedings the Court of Criminal Appeal were to

say, "It is monstrous that this man should be tried

a third, or a fourth, or a fifth time, whatever it

might be, even if there have been mistakes on the

way" and if, at that stage, the intimation were

made that it was not intended to take it further.

So I accept that that means that the function being

performed by the Court of Criminal Appeal may

change but what it does do is to change by way of

reducing the functions from two, in effect, to one.

BRENNAN J:	That seems to suggest, does it not, that the relevant words of limitation in section 73 as they
have thus far been seen to be, namely not the word
"appeals" but "judgments, decrees, orders and
sentences", take their character from facts which may be extrinsic to the exercise of the power of the court below?

MR JACKSON:  They may, Your Honour. Of course, that is not

necessarily a very surprising thing. Could I just

say in that regard, first: cases that may give

rise to judgments, decrees, orders and sentences

cover a wide variety of cases, of course, a wide

variety of circumstances, and many of the

judgments, decrees, orders and sentences that are

the subject of appeal first may be based on facts

which are assumed or facts or facts which are

agreed, and they are, of course, facts within a
case.

Again, one has circumstances where orders such as injunctions, interim injunctions and other such

orders are made based on facts which do not go to

the heart of the case, do not go to the substantive

law involved.

Your Honours, it is right to say that in

relation to the particular order they form part of

the material before the Court and part of the

matter within the case, as it were. If one goes to

section 669A, what one sees there is that the

section has a number of potential operations - it

has three really. It has an operation in

circumstances where there has been an acquittal; it has an operation in circumstances where there

has been a nolle prosequi presented and there is no

intention to proceed further; it also has an

operation in circumstances where the indictment has

been returned and, on the other hand, there has

been an intimation there will be further

proceedings which are to come about.

Mellifont(2) 25 7/3/91

Your Honours, it is right to say, of course,

that that means that the application of the term

"judgment, decree, order or sentence" may take some

meaning from which of the categories into which it

falls. That, with respect, does not affect the

question whether the order is something which is

capable of appeal.	I do not know that I can take
that point further.

Your Honours, I do not propose to go to all

the cases which have dealt with this issue but may

I go to one or two more and I will come finally to

the recent decision of the Court in O'Toole.

Before doing so, may I take Your Honours to one of

the leading cases on the way and that is the

Minister for Works for Western Australia v Civil

and Civic, (1967) 116 CLR 273.

Your Honours, that case is the case which seems to be the more modern commencement or

recommencement, as it were, of the application of

the broader notion of there being a restriction on

appeals. It was a case where an arbitrator was

empowered to state a special case for the opinion

of the Supreme Court of Western Australia on a

question of law which had arisen. The relevant

provisions are at the start of the headnote:

The question was answered in favour of the appellant.

There was an appeal to the Full Court which took a

different view and then there was the endeavour to

appeal to the Court. There was an objection to

competency of the appeal. And Your Honours will

see, in the judgment of the Chief Justice at

page 277, half-way down the page, he referred to

the question whether there was a:

judgment, order decree or sentence -

and said - It is of the essence of a judgment within

the meaning of the Constitution that it is

binding upon parties and definitive of legal

rights. It is not enough that the judge or

Court exercises a jurisdiction of the Supreme

Court in a matter judicial in its substance.

The judge or Court must authorizedly give a binding judgment which determines or settles

rights.

Your Honours, that approach - if I could just pause

at that point - seems to be quite different, with

respect, from that which was adopted by the

Judicial Committee in Uren's case because the

Mellifont(2) 26 7/3/91

determination in Uren's case could not have

affected the judgment or order - in fact there was

no appeal from the judgment or order.

Now, Your Honours, it one moves on from that -

perhaps I should say the remainder majority

judgments are to the same effect as that in that

case and the approach taken there has been

followed, it is right to say, in a number of

decisions all of which are referred to in O'Toole

v Charles David Pty Ltd, (1990) 64 ALJR 618.

Now, Your Honours, may I start from the

reasons for judgment of Your Honour the

Chief Justice at page 619, and one commences, as it

were, at page 620 at the bottom in the right

column, where Your Honour, having made some

observations to which I will return, said:

I acknowledge that what I have said is

not consistent with existing authority in this Court, authority to which I have been a party.

And Your Honour said:

it would ..... not be right to disregard -

those, but Your Honour noted that -

a majority of the Court considers that their

soundness is questionable -

and expressed a similar view. What Your Honour

said, going back to an earlier part of page 620 was

to summarize in the left column, between letters E

and F, the effect of the existing cases, that is:

that no appeal lies to this Court .... from

answers given to questions in a stated or

special case unless the answers finally

determine the rights of the parties in suit.

And Your Honour referred to Fisher v Fisher and

then at the bottom of the left column said:

In that case -

namely, Swiss Aluminium -

the Court pointed to the distinction

"between answers given to questions in a

stated or special case which determine the

rights of the parties and answers to a stated

or special case which are advisory or

consultative only.

Mellifont(2 )27 7/3/91

If I could pause at that point. Your Honour then

proceeds immediately after that quotation to refer

to the distinction between the two classes of case,

that is, between an "advisory or consultative", on
the one hand, and those which are determinations on

the other. Your Honour referred to the fact,

between letters Band C, that the "advisory" class
of case were:

For the most part ..... cases stated to a court which lacks jurisdiction to ..... determine the basic proceeding -

and exemplified that by a reference to:

Cases stated by arbitrators during the

course -

of the proceeding. And Your Honour then said,

towards the end of letter C:

So it is natural to speak of the answers to

such questions as being. "advisory or

consultative only". But this is not to say

that the answers to such questions constitute

an advisory opinion of the kind prescribed by

this Court in In re Judiciary and Navigation

Acts.

Your Honour, went on to say:

In that case the Court held that the function

of giving an academic advisory opinion to the

executive government, dissociated from

litigation actually in train, lies outside the

exercise of judicial power. An advisory or

consultative opinion given by a court in the

context of proceedings actually in train

before a court ..... is an exercise of judicial

power.

Now, Your Honours, no doubt it is correct to say

that the current proceedings to which the applicant

is or has been a party are proceedings which as a

matter of form exist only in the Court of Criminal

Appeal, but it is clear that the course of

proceedings has been that he has been put on his

trial; the indictment has been returned; the

return of the indictment, in consequence of the

decision upon questions of law, was the event which triggered the jurisdiction of the Court of Criminal Appeal, or enabled the jurisdiction of the Court of

Criminal Appeal to be triggered, I should have

said, in relation to those questions of law. The

next stage in the proceedings will be that he is

put on his trial again on the same charges.

Mellifont(2) 28 7/3/91

Your Honours, in those circumstances, whilst

one can say that as a matter of exactitude there is

no current proceeding, the fact of the matter is

that the order of events to which I have referred

is part of the way in which the structure of courts

works in Queensland to enable questions which arise

in or in relation to trials to be determined. No

doubt it did not exist relevantly in that way in

earlier days when the trial came to an end upon the

return of the indictment. But another structure

has been inserted in the legal system in Queensland

and in other places which allows that course to be

followed.

Now, Your Honours, if I could return to what

was said by Your Honour the Chief Justice at

page 620.	Your Honour said, between letters E
and F:

It would seem to follow that such an advisory

or consultative opinion amounts to an order

within the meaning of s 73 of the Constitution

even if it does not bind the court, tribunal

or arbitrator who states the case. After all,
the expectation is that the opinion will be

applied and acted upon by those who seek it;

that is what the relevant statute invariably

contemplates, even if the statute does not

require it by means of explicit direction or

provision. The hierarchy of courts and the

doctrine of precedent make it an imperative,

despite the absence of any direct means of

enforcement short of challenge to a final
determination that fails to incorporate or

proceed in accordance with the opinion.

Your Honours, we would adopt that as part of our submissions.

BRENNAN J:  If you should succeed not only in obtaining

special leave but in the appeal, what would be the

proceeding that would thereby be affected by it?

MR JACKSON:  Your Honour, the proceeding that would be

affected by it would be one of two things: one

would be that the existing proposal to reindict the

applicant would be stillborn, the other would be

that if the view were taken that the applicant

should be reindicted, then the relevant proceeding

would be the proceeding commencing on his trial on

the presentation of the indictment against him, and

on that occasion as a matter of precedent the court

hearing the trial, before the trial is conducted,

would be obliged to apply the decisions of the

Court of Criminal Appeal and the court.

Mellifont(2) 29 7/3/91

What Your Honour has put to me, of course,

involves the underlying assumption, if I may say so

with respect, that there has to be in being some

proceeding, and we would submit that is not a

requirement that one should insist upon by way of a

principle if what is apparent is that there is a

decision being given by a court which is being

dealt with on legal principles to declare the law

applicable in the event that there is another

trial.

DAWSON J: But your answer to the question, "What

proceeding?" is the trial of the applicant which
may or may not take place according to the decision

of the court.

MR JACKSON:  Yes, my answer is two-fold, with respect,

Your Honour.	One is to give that answer, albeit
more lengthily.	The other is to take leave, with

respect, to question the need for there to be such

a proceeding in being.

DAWSON J: Well, I understand that.

MR JACKSON:  Your Honour, I wonder if I might move from what

was said by Your Honour the Chief Justice in that

case to what was said by Your Honour

Justice Brennan. Your Honour was careful, in

effect, not to express any concluded view - or if I

might say so, with respect, formed view - on the

matter other than to seek to apply the existing

decisions of the Court.

Could I take Your Honours first to page 626F

in the right column where Your Honour examined a

number of possible scenarios, if I could use that

word, describing:

The purpose of a power to reserve a question.

Noting:

The answer itself may not conclude an issue in

the proceedings, or a cause of action in the

proceedings or the proceedings as a whole; it

may amount to no more than a consultative

opinion ..... There are significant distinctions

between an answer which concludes an

issue ..... and an answer which does not.

Your Honour noted that the answer, if consultative,

might provide cogent guidance in the making of an

order but not not itself affect the rights and

obligations of parties. In the left column of

page 627 Your Honour noted the difference between

the precedent effect of such a decision on the one

hand and the fact that it was not an· estoppel on

Mellifont(2) 30 7/3/91

the other, and that goes down, I think, to about

the end of letter E, and Your Honour noted in the

paragraph commencing between letters F and Gin the

left column on page 627 the precedent effect of

such a decision. Then in the passage which

commences the last paragraph in that column and

going then down the right column on page 627

Your Honour summarized the position in the first

new paragraph on page 627:

The question whether an appeal may lie

from an answer given by an intermediate court

thus corresponds with the question whether the

answer concludes the parties' rights and

obligations.

If I could pause at that point: assuming the

principle remained as Your Honour has there stated
it, that would of course, subject to the submission

I made earlier in relation to whether Saffron's

case was or was not distinguishable, be the end of

the matter for us.

Your Honour referred to the statement of

principle in Swiss Aluminium and then to a variety

of circumstances where there might be a binding

decision, albeit on a reference, but Your Honour

referred in the top of the left column on page 631

to the standing of the decisions of the Court on

this question and Your Honour said, between

letters Band C, that you did not propose to

express a view, in effect.

Then in the right column of page 631

Your Honour expressed a doubt about the desirability of expressing doubts or perhaps

expressing doubts too vigorously and concluded by

saying on page 632 in the first new paragraph on

that page that Your Honour would adhere to the

settled law.

In the joint judgment of Your Honours

Justices Deane, Gaudron and McHugh at page 635 one

sees the question dealt with first at page 636F in

the right column. One sees first a reference to

the fact that in some cases:

the answers to specific questions reserved by
a special case will ..... operate as an

estoppel by judgment.

At the bottom of the page the fact that the answers

in the particular case:

did no more than deal with certain questions

of law which could be expected to arise for

Mellifont(2) 31 7/3/91

consideration in the course of the final

hearing of the pending proceedings -

and, of course, that is the position so far as this

case is concerned. Your Honours referred to the

fact on page 637 left column between letters C

and D that:

That being so, they do not give rise to an

estoppel by judgment in relation to the
questions of law which they determine ..... and

they remain susceptible of challenge on an

appeal to this Court.

Your Honours then refer in the paragraph commencing

between letters D and E to the fact that:

in a case such as the present where a judge of
a court reserves for the consideration of a

full court of that court question of law which will, or are likely to, arise in the course of the subsequent hearing of the action, the

prima facie position is that, notwithstanding

statutory provisions to the effect that the

relevant full court will "determine" the

questions, the answers given by that full

court are, as a matter of strict law,

"advisory" in their nature ..... There is

nothing in the Federal Court of Australia Act

which reverses that prima facie position.

Then, at Fin the left column:

the primary judge would -

not -

have been free to disregard the Full Court's

answers to the questions reserved. The

doctrine of stare decisis and the hierarchical
system of courts ..... would, in the absence of
some intervening event, plainly have required that he accept and apply them. What it means

for practical purposes is that the primary

judge would not have been required to

disregard the doctrine of stare decisis if

intervening events had brought about a

situation where observance of that doctrine

required a departure from the answers given by

the Full Court -

and Your Honours indicated at the bottom of that

column and the top of the next column a

circumstance indicating the difference between an

estoppel, in effect, and the precedent effect of

the decision.

Mellifont(2) 32 7/3/91

But Your Honours then proceeded at the top of

page 637, in the first new paragraph, to say:

It follows from what has been said above

that neither this Court nor the parties are

bound ..... by the answers given by the Full

Court -

Your Honours then proceeded to deal, at the bottom of page 637 with In re Judiciary and Navigation

Acts and referred to the fact that the reasoning

behind that decision was based on the nature of a

matter for the purposes of Chapter III and

Your Honours refer, in particular at the top of

page 638, to the provisions of the Constitution

relating to original jurisdiction.

Your Honours go on to say, towards the bottom

of page 638, in the last paragraph of the left

column:

The position is, however, different in

the case of an appeal from the decision of the
full court of a court on questions reserved
for its consideration in the course of

proceedings in a "matter" pending in that

court. In those circumstances, there is no question of the blurring of the distinction

between executive and judicial functions and

powers.

Your Honours go on to discuss that at the top of

the right column and then say, about C:

In that genera~ context, it is difficult to

see any persuasive reason in law or policy why

the answers to such questions, or the formal

"orders" embodying them, should fall outside

the reach of the words "all judgments,

decrees, orders" ..... In that regard, it is

important to bear in mind thats 73 is

directed towards defining the outer limits of

this Court's appellate jurisdiction -

and there is a power to restrict, regulate or

provide for exceptions.	And Your Honours said,
between D and E:

Plainly, it is at least arguable that a narrow

and legalistic construction of the general

words of s 73, which excludes from the direct

appellate jurisdiction of this Court any

decision, judgment or order which does not of

itself "finally determine the rights of the

parties" as a matter of strict legal theory,

has the effect of establishing and entrenching

an undesirable and illogical defect in the

Mellifont(2) 33 7/3/91

ability of this Court to discharge its
function as the final appellate court of the

nation. Moreover, such a -

Your Honours refer to the -

settled approach to the construction of

general constitutional grants of power.

May I, before going on, say this:  we would submit

that the present is a case of the general nature

falling within the observations to which I have

just referred in the sense that with the passage of time the view has changed in the legislature of the

State. By that I mean that in the past the

situation was, of course, that there could not be

an appeal from an acquittal. The result of that

was that there might be cases where a judge made an

incorrect ruling on a question of law arising in

the course of the trial and the effect of the

ruling was that there was a verdict of not guilty

where the view might have been taken that the case

should have been put to the jury on a different

legal basis and one which was less favourable to

the accused.

Your Honours, that gives rise to, so far as

legislators are concerned, a question of the course

which should be adopted. Should there be an

ability to appeal from an acquittal. There is,

Your Honours, I think - although the precise ambit

of it, I am not sure - in Tasmania, at least, on

points on law. Should there, on the other hand, be

some procedure adopted which has some kind of

palliative effect, at least, for the future? That

leaves open the possibility that one might, as in

section 699A, treat an instant case as one which

was historical but provide for the law to be
declared by the Court of Criminal Appeal for the

future.

Another course which might be adopted and

which was, in fact, adopted, again, in

section 669A, was to say that whilst there may be a

decision of the question by the Court of Criminal

Appeal, it cannot be done while a trial is in

progress but it may be done in relation to a

question which has arisen at a trial and which may

arise at the next trial.

Your Honours, in those circumstances one would

think that the nature of the questions sought to be

agitated before the Court of Criminal Appeal on

occasions of that kind is that they are, ex

hypothesi, because of the terms of the statute
questions of law. They may well be questions of

general application. They may well be questions

Mellifont(2) 7/3/91

which merit the attention of the Court and they may
well be questions which could not be resolved by

the court except by the Court's admitting an appeal

on such questions coming from the Court of Criminal

Appeal in proceedings such as this. Your Honours,

I am sorry, that partook to some extent, I suspect, of the elements of the speech but it relates to

that passage at page 638 in the right column to

which I was referring.

Your Honours, if one goes then to the bottom

of that page, Your Honours will see that

Your Honours said:

In a context where appeals to this Court are

ordinarily by leave only, it is difficult to

see any real reason in policy why the

advantages of new and developing procedures

for the administration of justice should be

partly negatived by the approach that the
determination of legal questions by such

procedures in the context of an actual matter

must, even though a grant of leave to appeal

would otherwise be fully justified in the

circumstances, be removed from the reach of
the appellate jurisdiction of this Court as a
matter of jurisdiction unless the

determination of itself finally determines the

rights of the parties as a matter of legal

theory as distinct from practical effect.

Your Honours, lest one seize too much upon the

words in the third last line of page 638:

in the context of an actual matter -

Your Honours, one sees in the paragraph which goes

over from the bottom of page 638 and continues into

page 639, a reference to Saffron v Reg and between

letters Band C:

Moreover, there are other developments in

legal procedures which represent important

areas of the ordinary administration of law in

this country and which would be

constitutionally removed from the reach of the
appellate jurisdiction of this Court if a

narrow and legalistic construction of

section 73 of the Constitution were

maintained.

Your Honours, I shall not read it out but I would
refer Your Honours to the remainder of that

paragraph.

Could I move from the joint judgment of

Your Honours then to the reasons for judgment of

Mellifont(2) 35 7/3/91

Your Honour Justice Dawson at page 643 and before

going to it could I refer Your Honours also to

page 650 where Your Honour Justice Toohey expressed

agreement with the reservations expressed by

Your Honour Justice Dawson:

as to the current state of the authorities

which hold answers to questions of law arising

from a case stated or special case to be

outside the operation of section 73 of the
Constitution.

Your Honour Justice Dawson dealt with the

issue in a passage which commences at page 644 in
the first new paragraph in the right column on the

page. Your Honour recited the reasons why the

matter came before the Court in that way, and then

said what had been held in Fisher v Fisher.

Your Honour referred to Fisher v Fisher and Swiss

Aluminium between letters C and D, and other cases

dealing with the topic, and then said at letter E:

Of course, that view does not explain why,

under s 73, a decision that determines no

rights, but may yet be in the form of an

order, is not appealable to the High Court.

I hope Your Honour has not thought of an answer to

that since that case, but we would adopt that as

our submission, with respect. ·

I use the term "order" because the answers

upon a case stated are ordinarily in the form
of an order which, unlike a final judgment,
does not dispose of a matter. However, the

difference between a judgment and an order is

far from precise.	The two terms overlap
considerably.

The authorities which are said to lead to the result that a decision which does not

determine rights cannot be an order within the

meaning of s 73 are for the most part

concerned with appeals from the decision of a

court upon a case stated by an arbitrator.

Your Honour discussed the cases and then at page 645 between letters C and D said that -

a more fundamental consideration seems to have

been that the arbitrator had merely sought

guidance as to the course which he should

pursue in the arbitration.

And, Your Honour, that follows down to the end of

letter E, and then at letter F:

Mellifont(2) 36 7/3/91

But it seems that the opinion expressed by a

court upon a case stated in arbitration

proceedings has been regarded as not being a

judgment or order, more because it would usurp

the authority of the arbitrator and take the
matter outside the reference to arbitration to
regard it otherwise, rather than because an
order must of its very nature determine

rights. Of course, the fact that a decision determines no rights may indicate that it is

by way of guidance only, but it by no means

follows that a decision which does not

determine rights can never form the basis of

an order of a court.

Your Honours, one sees, of course, advice that can

be given under trustee Acts and so on, something

which is clearly something that can be done by a

court and has been done traditionally and derives from the ancient, if I could use that expression, jurisdiction of the Courts in Chancery.

Your Honour dealt with the cases at page 646,

and could I refer Your Honours particularly to page 646 in the right column between letters D and E where Your Honour said:

But that does not mean that there are not

cases in which a court may be authorised to

determine a question of law referred to it by

an inferior tribunal in such a way as to bind

that tribunal and the parties, notwithstanding that no rights are immediately affected by the

determination.

Now, Your Honours, the reference in the case such

as the present, of course, is a reference by the determination of the reference by the Court of
Criminal Appeal is a determination which does not

immediately affect rights in the sense in which I

suspect Your Honour was using the term there.

However, Your Honour, the Court of Criminal Appeal

is determining a question which of its very nature

has to be a question of law, and in so doing, the

decision of it binds the judge who has to decide -

binds, as a matter of precedent, of course - the

same issue at trial.

Your Honour goes on to say, between letters E

and G that:

the determination of a question of law may be

expressed in an abstract way ..... nevertheless,
it is ultimately binding upon the parties in
those situations to which it applies. It is

not to the point that the determination itself

Mellifont(2) 37 7/3/91

does not immediately affect rights, and it is

appropriate that the determination should be

embodied in an order.

And Your Honour said:

that it is not immediately apparent to me why

such an order should not be an order within

the meaning of section 73.

Now, Your Honour then drew a contrast and said:

if the determination of a court amounts to no
more than guidance, not only is an order
inappropriate but it may fall outside the

scope of section 73 for another reason.

And Your Honour then picked up, in effect, what was

said in Judiciary and Navigation Act about the term

"matter" and so on.

Your Honour then said, at the end of page 647,

the paragraph commencing between D and Eon the

left column:

There would seem, however, to be no

reason why, if there is a matter on foot, the
binding determination of a question of law

arising within that matter should not amount

to an order -

And, Your Honour, we would submit that is correct, and Your Honour went on to elaborate upon that and

then at page 647 noted the fact that the issue had

not really been raised in the case. Your Honour,

once one adopts the view, in our submission, as one

should, in our submission, correctly that the fact

that the decisions the subject of the appeal does

, not ~.self determine the rights of the parties to

it then there must, we would submit, be an element

of degree involved.

fatal to there being an appeal from that decision We would submit, it is not

that there is at the moment when it is given no

further proceeding in being in which it has to be

immediately applied.

DAWSON J:  What is meant when you say, "determines the

rights of the parties", Mr Jackson, because I have

in mind an interlocutory order? It determines

something and in a sense it determines rights -

maybe they are procedural rights only. But equally

a determination on the question of law determines

something?

MR JACKSON:  Your Honour, of course it does, yes.

Mellifont(2)	38	7/3/91
DAWSON J:	Which is a step on the way to determination ultimately view of the rights which matter.	It has
always puzzled me.

MR JACKSON:  Your Honour, one cannot, of course -

interlocutory orders fall into a number of

categories.

DAWSON J: Yes.

MR JACKSON:  I take it what Your Honour has in mind is an

interlocutory order dealing with the course of

procedure. I am not entirely certain but if one

looked at the types of procedure that would be

appropriate, types of orders relating to procedure,

there would be appropriate in the ordinary civil

case, if I can call it that, where one might have

orders for pleadings to be delivered at certain

times, discovery, interrogatories and so on.

Now, what those orders do is to require a

party to comply with them and give the other party

a right to have those orders complied with subject

to a number of matters. One would be the ability

of those orders to be set aside on appeal.

Sometime, of course, there is no appeal from orders

of those kinds. Another feature, Your Honour,
would be that in respect of some of those orders

there is an ability, on the part of either party,

to apply for them to be varied but subject to those

features they do affect the party's procedural

rights in the sense that a non-compliance with them

may be the occasion of some sanction. That would usually be the situation, Your Honour. So, there

is some effect on rights but it might be a

potential effect rather than anything else.

DAWSON J: Well, I mean, one could say the same thing about

determination of question of law, that determines

the right to have that question decided in a

particular way.

MR JACKSON:  Yes. Your Honour, one certainly can. The real

difference between - if I can call it the precedent

effect and the estoppel effect - and, Your Honour,

I know I am putting the estoppel effect, at least,

perhaps, inexactly - is this: if I could go first
to where there is no difference. At the start of

the third trial, as it were, of the accused, the

judge will have to decide on questions of law and

such questions of fact as he has to resolve. Now,

in deciding the questions of law, assuming that the

question of law which arises is the same as that

which was decided by the Court of Criminal Appeal,

it would be, Your Honour, as mischievous for a

judge to depart from the decision of the Court of

Mellifont(2) 39 7/3/91

Criminal Appeal on that point in a case such as the

present as it would be in a case where the decision

of the Court of Criminal Appeal was one which was

binding on the parties because it was a

determination giving rise to an estoppel.	So there
is no difference, really, Your Honour.

The differences seem to be the two points I

mentioned earlier, namely that if there is a change

in the law - and Your Honours could I give an

instance: if it be said in relation to the offence

of perjury that - Your Honours, perhaps I should

say: if we failed on getting special leave and
succeeding in overruling the Court of Criminal

Appeal's decision on the relevant element of perjury but if, in the interim, there had been another case, either from Queensland or, I think, from Western Australia where the same point might

arise, which had come to the Court and the Court

had heard it and decided differently from the way

the Court of Criminal Appeal had decided the case

in this case then the result would be the trial

judge should apply the Court's decision. That is

the difference between estoppel.

But subject to that, Your Honour, his rights

have been determined. I mean, it is possible that

the issue for the exercise of the rights by either

side - - -

DAWSON J:  ..... an interlocutory order if the law changed

retrospectively in relation to some interlocutory

order ..... it would not hold.

MR JACKSON: 

Your Honour, the point I seek to avoid is the

hole, if there be one, or the manhole in the street
without the cover of the need for there to be a

proceeding in being.  Our submission is that there

is not.  Your Honours, I do not know that I can

take that further.

Your Honours, I do not propose to go to the

detail of the earlier cases really further than

that except to recognize that they do establish the

broad proposition which is, in a sense, contrary to the submission we are advancing. However, we would

submit that those decisions should be reviewed for

the reasons we have set out in our outline of

submissions.

DEANE J:  Mr Jackson, why do you keep looking to the future

proceeding? Why is this not seen as a remnant of

the existing or of the previous proceeding? It is

obviously more difficult here than in Saffron where

the judge referred, the parties were entitled to

representation and the Attorney-General would

appoint somebody to argue on the part of the

Mellifont(2) 40 7/3/91

accused; but in one sense it is a remnant of the

proceeding in which the Crown almost seeks

declaratory relief that the acquittal was wrong in

the case of an acquittal.

MR JACKSON:  Your Honour, could I say two things in response

to that? The first is that the emphasis on what

might happen in the future is, if I might say so

with respect, something that, in a sense, is

responsive. The question has been raised by some

of Your Honours what is the proceeding to which it

relates and if one has to look to a proceeding

which is, in effect, alive and has a future to it,

in effect, inevitably one goes one way or another

to what might happen in the future.

But, Your Honour, what Your Honour put to me

is something which relates to the proposition I was

seeking to put before and that is that what one has

is a situation where whatever might have been the

structure of the courts administering criminal
jurisdiction in days prior to section 669A(2), the

situation which now obtains is that one can obtain

the opinion of the Court of Criminal Appeal by a

procedure which starts at a trial. To get to the

Court of Criminal Appeal relevantly there is a

slight down side and that is that the trial cannot

proceed.

However, the plus, as it were, is that by

using the trial on the ruling of the judge on the
question of law at the trial as the occasion, or
the springboard to put it in exactly, one can then

move from that to the Court of Criminal Appeal to

obtain - if I can use Your Honour's expression -

its declaration about the state of the law on that

point. So, Your Honour, I think I accept what
Your Honour puts to me and that is the second point

I wanted to make about it. It is a remnant of the trial - to use that expression, Your Honour - in

the sense that it involves a decision on what was

the issue of law arising between the parties at the

trial and it is a decision which may have future

relevance of two kinds: one, generally; one,

particularly.

Your Honours, what we would submit -

Your Honours, I do not think I want to take the

submissions on the issues on reopening beyond those

that are set out in the outline of submissions and our submissions on the substantive point, I think, are those that I have put.

Your Honours, could I move then from that to

the other aspects involved in the case and they are

two. One concerns section 123 of the Criminal Code

and the other concerns the terms of t~e Orders in

Mellifont(2) 41 7/3/91

Council which conferred power upon the

commissioner.

Your Honours, I wonder if I might go

immediately to section 123 of the Code which is at

page 3465. Your Honours will see that it provides

that:

Any person who in any judicial

proceeding -

a term defined, Your Honours, and I will come to

the definitions a little later -

or for the purpose of instituting any judicial

proceeding, knowingly gives false testimony

touching any matter which is material to any

question then depending in that proceeding, or

intended to be raised in that proceeding, is

guilty of a crime, which is called perjury.

The crime is a serious crime because it provides a

maximum penalty provided for by section 124 of

14 years.

Your Honours, the critical question which

arises in relation to section 123 concerns the

words:

false testimony touching any matter -

and the question which arises is whether the words:

false testimony touching any matter -

convey one notion or two notions. We say,

Your Honours, that it conveys one notion, that is,

false testimony concerning any matter.

Your Honour, I will explain what I mean by that in

just a moment, if I may.	We go on to say from that
that the words:

which is material -

mean which false testimony is material

to any question then depending in that

proceeding.

Your Honours, that is what we would say and I will

expand upon that, if I may, in a moment. The

respondent - as we understand the position - would

say that the expression:

false testimony touching any matter -

Mellifont(2) 42 7/3/91

conveys, not one, but two notions. The first, that

there is testimony which is false and the second,

that that false testimony is:

false testimony touching any matter.

That matter - the other side's contention - goes on to say, must relate to a question:

then depending in that proceeding.

Your Honours, the essential difference is that if

the Attorney-General is correct, the false

testimony need not be material - I am sorry,

Your Honours. If the Attorney-General is correct,

the false testimony need not be material provided

that the matter which it touches is material to a

question. Your Honours, in some cases there will

be no difference in the application of the two

approaches. In other cases, however, particularly

where the issues are not defined with exactness, as
in the case of commissions of inquiry, the

difference is significant.

Your Honours, could I come back then to our

submission. Our submission is that the expression

"false testimony touching any matter" is a

composite expression intended to make it clear that

the false testimony may have been given in a number

of circumstances. Your Honours, what I mean by

that is that it is not just evidence given in
relation to an issue, using that in the stricter

sense. It may be false testimony going to credit.

It may be false testimony given on an occasion to

explain the absence or perhaps the state of mind of

a witness.	It may be evidence given on a
voir dire.

Your Honours, what the section is seeking to do, in our submission, is simply to say that if a

person knowingly gives a false testimony on any

topic, and if that false testimony is material to

any question, then depending in the proceedings

that constitutes the offence.

DAWSON J:  Then the words "touching any matter" do not add

anything at all?

MR JACKSON:	No, with respect, Your Honour, they do.
DAWSON J:	What?
MR JACKSON:	What they do is that they are emphatic and

they make it clear - they have two functions: one

is that they are emphatic in the sense that they

say false testimony touching any matter because one

sees materiality to any question then depending in

Mellifont(2) 7/3/91

that proceeding, and the obverse, which is really

the second thing I was going to say, is that they

make it clear that the false testimony need not be

false testimony going to an issue in the

proceedings.

DAWSON J:  False testimony must always touch a matter if it

is intelligible at all.

MR JACKSON:  Your Honour, it must always concern something

but it would not necessarily have to be admissible

if Your Honour looks at the second last paragraph

of the section. It may be inadmissible, but given.

So the point is very short. I will take

Your Honour to a couple of cases about it in a

moment. It is really a question of what is meant.

Is one talking about false testimony which is

material or is one talking about false testimony

touching a matter, the matter being the relevant

thing which is material?

At common law - if I could start there, and in

saying that I am aware that one is dealing with the

Code - so far as the common law is concerned the

position is as we suggest - and I will come to the

cases in a moment - but there is not to be

discerned, in our submission, any intention on the

part of the legislature relevantly to change the

common law. So far as the position at common law

was concerned, may I start briefly with the

historical discussion of the introduction of

section 123 which Your Honours will see from the

judgment of Mr Justice Cooper in the Court of

Criminal Appeal at page SO, commencing at about

line 35 and going through to page 53 towards about

line 15.

What His Honour refers to at the bottom of

page 50 is that the Code was prepared by

Sir Samuel Griffith. He first prepared a digest of

the statutory criminal law in force in Queensland.

The digest contained the statutory enactments

relating to criminal offences in Queensland,

and -

DEANE J:  Mr Jackson, is there another offence for false

evidence in a trial?

MR JACKSON:  I think the answer is no, Your Honour. There

is an offence which - - -

DEANE J:  That means regardless of whether you be right or

wrong the witness can sit up there and decide that

the answer is immaterial and say what he likes

about it.

MR JACKSON:	No, it does not, Your Honour.	One has to - - -
Mellifont(2)	44	7/3/91

DEANE J: I am just interested. It is not against your

argument.

MR JACKSON:  No. Your Honour, could I just say that the

provisions of the Code that seem to be germane are

section 123 -

DEANE J:  Do not take time. I just wondered if there was

another - - -

MR JACKSON:  Your Honour, materiality has always been a

critical element of perjury.

DEANE J:	So you can always swear to a false address?
MR JACKSON:	No, Your Honour, what there has to be is

knowingly giving false testimony, and then the

question is whether that false testimony is

material. Your Honour, an example is given in a

case to which I will come in a moment by

Mr Justice Jacobs in South Australia, of a case

where two persons, one 15 and one 17, give evidence

falsely in each case, and intentionally falsely,

that they are 16, the age for, let us say, drinking

or getting a driver's licence or something,

being 16.

Now, in respect of the younger one, one would

think that his false evidence would be obviously

material to some charge relating to his conduct in

breach of the statutory prohibition. In the case

of the second one, the one who was 17, the answer

is the obverse. Your Honour, materiality is a

critical matter, and many of the older cases on
perjury dealt with fine distinctions in the form of
the indictment or information about whether the

matter to which there was material had been

sufficiently identified, and in view of the fact

that one sees also a sentence of seven years for

transportation for full perjury it is perhaps not

surprising. But materiality was and is, Your

Honour, a matter of importance.

Could I also just say in relation to that,

Your Honour, that there is provision in section 125

for the fact that one cannot be convicted of
perjury on the uncorroborated testimony of one
witness, and there is also another provision,

section 126, which deals with "Fabricating

Evidence", and that is if:

Any person who, with an intent to mislead

any -

tribunal -

Mellifont(2) 45 7/3/91

Fabricates evidence by any means other than perjury -

et cetera, and that is a lesser crime, seven years.

"Corruption of Witnesses" is dealt with by

section 127; "Deceiving Witnesses", 128 and

cognate offences in succeeding sections through to

132.

Your Honours, whichever view be correct, materiality is a matter of critical importance in

relation to perjury, and the question is, "Which is

the correct approach to it?"

Your Honours, the point I am seeking to make

is twofold.	One is that under the common law the
position is as we would contend for.	The second

thing is we would submit there is no intention in
the legislature to alter the position at common law

in the case of perjury.

Your Honours, I was at page 51 and you will

see at the top of the page that Sir Samuel Griffith

had prepared a digest of all the statutory

enactments relating to criminal offences and put

them as articles. Article 87 dealt with perjury

and the structure of it was, in the left side of
the page, put what he understood to be the common

law, and on the right side of the page what the

provisions were. I am afraid I will have to give

Your Honours a copy of that at a later point.

Your Honours will see at the bottom of page 51

is set out what Sir Samuel Griffith in what he

called Article 87(1, understood to be the position

under the general law. The words which he used are

not very different from those which became

section 123, and it is apparent, if Your Honours

look at the references given at the top of

page 52 - which I will give you if I might do so

this afternoon - that he did not intend to be

changing the common law position, and that seemed

to be followed through by the legislature.

Now, Your Honours, if one looks to see what

the common law position is, the position appears to

be as we have suggested. Could I go first to a

short summary of the position which may be seen in

a decision in South Australia, Traino,

(1987) 27 A Crim R 271. At page 277 - and,

Your Honours, I should say by way of introductory

observation that one of the questions which has
arisen in relation to perjury is whether the
decision on materiality is a question for the judge

or a question for the jury, and the prevailing view

appears to have been taken that it is a question

for the judge, although it obviously involves

Mellifont(2) 46 7/3/91

elements, and no doubt considerable elements of

fact. Your Honours will see the observations to

which I am going to refer are often discussed in a

context where the principal issue is the question,

"Whose function is it to decide the question of

materiality?"

Now, Your Honours, at page 276, if perhaps I

can go there first, Your Honours will see at the
top of the page that Mr Justice King, the Chief

Justice, referred to Reg v Davies, and said that he was:

of opinion that the learned judge was correct

to regard the issue -

which is materiality -

as one for the judge and not the jury.

And he said he adopted what was said by

Mr Justice Wells in his judgment in that case to

which I will come, and he adopted the reasons.

Now, Your Honours, at the bottom of the page

Mr Justice Jacobs said that he agreed:

with the Chief Justice that in a charge of

perjury the materiality of the alleged

falsehood is a question for the judge and not

for the jury. But there was some difference

of opinion in that case -

and then His Honour goes on to say at the bottom of

the next page, page 277, or he describes the
question as being:

In a charge of perjury, however, the question whether the impugned evidence on oath

in a judicial proceeding was material to some

question in the proceeding is, as Wells J has

said, a matter of law for the judge, because

the judge, and only the judge, can say whether

the statement assigned as perjury was, as a

matter of law, material to the issues or

whether it was entirely immaterial.

Those observations, of course, are not in any way

conclusive on the question but what one does see,

as Your Honours will see, in our submission, from

Reg v Davies, to which I shall now come, is that

the question at common law is always expressed as
being whether the false statement itself was

material to the matter in issue.

Now, Your Honours, Reg v Davies, (1973)

7 SASR 375, was a decision on a somewhat different

Mellifont(2) 47 7/3/91

provision which is set out at page 376 about a

third of the way down the page. But in the course

of their reasons for judgment the judges,

particularly Mr Justice Wells, deals with the

position in a case of perjury.

At page 377, Chief Justice Bray says, half-way

down the page:

Of course, where evidence in some

previous proceedings is the subject of a

charge of perjury the question whether the

statement in question was material to the

issues in the original proceedings must, in

many cases, be a question of law. The judge

knows whether the statement assigned as

perjury was, as a matter of law, material to
the issues or whether it was entirely
immaterial. Material, I think, in this

context must mean, not only relevant, but

practically relevant. A statement of only

remote or theoretical relevance might not be

material.

And then His Honour expands upon that throughout

that paragraph down to the reference to Lewis'

case.

Your Honours, at page 378 Your Honours will

see a discussion of some of the cases and

Your Honours will see also a paragraph commencing

half-way down the page:

In other instances, however, the

situation is not so clear.

And then could I just refer Your Honours to the

passage dealing with Goddard's case about two-

thirds of the way down the page:

So, in Goddard's Case, Wightman J. left it to

the jury to say whether or not the statement

on oath of a defendant in an affiliation case

that he had never kissed the complainant was

material. It was argued that it was too wide

and that it could not have been material

whether he might have kissed her when she was

a child. The learned Judge said: "And then

the question arises, whether the parts of his

evidence which are assigned as perjury were

material to the investigation. It seems to me
that they were so, but that is for you."

And, Your Honours, at page 379, the first two new paragraphs on that page, His Honour said:

The tentative view -

Mellifont(2) 48 7/3/91

he formed was that -

Materiality ..... is formerly for the jury. But

in many, and perhaps the vest majority of
cases, its decision on the point will be
foreclosed by the judge either directing them

as a matter of abstract law that anything

tending to prove or disprove such and such a

fact was material to the issues in the

previous proceedings, or withdrawing the case

from them -

and so on -

that the statement assigned as perjury was not

in law material to the issues.

Now, Your Honours, the principal discussion of the question, or the related question, is to be found

in the judgment of Mr Justice Wells, commencing at

page 381, and at page 388, in the first new

paragraph on the page, His Honour said:

It was, of course, inevitable -

that they would end up dealing with perjury and
that they found the authorities on the question of

"materiality" not to be unanimous. That seems to

relate to the question whether it is a function of

the judge or the jury.

Your Honours, at page 389, referring to a case

which is Baker's case, referred to at the bottom of

388, His Honour quotes, about half-way down the

page, from a judgment in that case, and says:

The opening sentence of his judgment reads:

"The sole point for our consideration in

this case is whether the statements made by

the defendant, which the jury have found to

material to the case which was before the	have been made falsely and wilfully, were	stipendiary magistrate when the defendant was
charged for the second time with the offence
of selling beer without a licence".
It seems to me that his Lordship was there distinguishing between two issues ..... first, the issue determined by the jury, that the
defendant made the statements falsely and
wilfully; and second the question for the
Court, whether the statements were material to the case before the Special Magistrate.

He went on to say, at the bottom of page 389 that:

Mellifont(2) 49 7/3/91

R v Overton is an instructive and

authoritative -

He refers to the precision, if I can put it that

way, of the indictment and then, Your Honours, and

I am sorry this is just a little complicated

because it is a recitation of what happened. The

point seems to have been that the charge which was

made was a charge that he falsely swore that a

particular receipt was given to him before

12 September. The counsel for the defendant then

urged that the "materiality" of the question as
stated in the indictment had not been demonstrated
because what he sought to argue was that the

material question was not as framed because it had

not been disproved there had been a sale of the dog

on an earlier date and the fact of the receipt was

immaterial. So, what he was saying, in effect, was

that there was a larger issue than the question

whether the receipt had been given and said, and
Your Honours will see this about half-way down page

390:

It ought to have been alleged in the
indictment that there was no such sale, or at

all events it should have been so proved in

order to make the question as to the time of

giving the receipt material".

Your Honours, that appears to have received a

somewhat chilled response as Your Honours will see

from half-way down that page through to the second- last paragraph on the page where Lord Abinger said:

"The whole matter turned on the credit of

the witness, and he tries to support his

credit by false evidence. The receipt is to

confirm his evidence, and he swears it was
given before the 12th. If that were true, the

proof would be decisive.

Now, at the top of the next page there is a

reference to the fact that everything that comes
out of the trial is material if it goes to the

credit of the witness and then, Your Honours,

half-way down page 391, His Honour says:

But, in my opinion, authority is

supported by principle. Questions of

relevance of evidence have for centuries ben
the sole responsibility of the judge. Judges
are accustomed, ex rerum natura, to dealing
with the bearing that evidence has upon the
issues to be determined by the tribunal of

fact. Materiality is akin to, though not identical with, relevance. A fact, in my

Mellifont(2) 50 7/3/91

opinion, is material for the purposes of a

charge of perjury when it is of such

significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate

tribunal of fact on the factual issue or
issues, and materiality should be given a
corresponding meaning; plainly, then, a fact
will be material, not only when it is a fact
in issue or a fact relevant to a fact in

issue, but also when it fairly goes to the

credit.

DAWSON J: So, the reason why the word "matter" was used in

the section was because you would have to cover

credit, otherwise it would have been possible to

say, "False testimony touching any fact which is

material to any question".

MR JACKSON:  Yes, Your Honour. What we would say, of

course, is that when the expression is used, "false

testimony touching any matter", it is false

testimony covering any of the circumstances in

relation to which testimony might be given.

MASON CJ: Well, Mr Jackson, we can pursue that after the

adjournment.

AT 12.48 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.37 PM:

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  Your Honours, finally on this topic may I just

give one further reference to Reg v Davies,

7 SASR 394, and the particular passage is about

three-quarters of the way down the page where

His Honour says:

For the purposes of a perjury charge,

materiality must ultimately depend on the

relationship between the impugned evidence and

the issues contested in the case in which that

evidence was given, and the force and bearing

that the one has upon the other.

And Your Honours, those are the submissions I want

to make in relation to the substance of the point

on the meaning of section 123. So far as the

Mellifont(2) 51 7/3/91

reasons for granting special leave are concerned,

we would simply submit as we have set out in our

outline of submissions, that the issue is one of

importance relating to the content of the offence

of perjury and is one which will occur in the

future.

Your Honours, could I come then to the last

topic with which we wish to deal and that concerns

the terms of the Order in Council pursuant to which

Mr Fitzgerald QC was appointed to be commissioner

and Your Honours, we accept immediately, that the

point involved here would not by itself merit the

grant of special leave, but can I say a couple of

things about it. One is that it is a point which
if correct, in our submission, would be fatal to
the further prosecution of the matter and the
applicant has already been twice put on his trial

for the same offence. It is also, Your Honours, I

should say a very short point.

The first question which arose, what was

described as the first question, appears at page 29
of the record and Your Honours will see that the

question is set out at the bottom of the page and

it concerns the:

construction of the Order in Council dated

24th June, 1987 -

the question being whether -

the true construction -

of it -

was such as to limit the Commission of

Inquiry -

in effect, to inquiring into -

unlawful gambling done between -

two dates -

1st January, 1977 and 24th June, 1987.

The 24th June was the date of the Order in Council.

Your Honours, the issue related to a ruling

which is to be seen at page 12, and Your Honours

will see lines 30 to 52 where there is a reference

at about line 42 to the Henderson account being

opened in mid-August 1987. What that means

essentially is that the Henderson account was said

to be an account conducted by the applicant, it was

commenced in mid-August 1987, that is after the

Mellifont(2) 52 7/3/91

date on which the commission of inquiry terms of

reference came into being. The question which gave

rise to the charge of perjury was whether he had

conducted any accounts in names other than his own

and in the name of Taylor, prior to the date of the

question, in effect.

So the issue, so far as the present matter is

concerned, is essentially whether the commission of

inquiry was entitled to inquire into the opening of

that account after that date.	Your Honours, could
I go then to the Orders in Council.	Your Honours

will see that there are two Orders in Council: one

of them is dated 26 May 1987 and the other

24 June 1987. Could I go to the latter one. What

the latter Order in Council did, as Your Honours

will see in the opening words of it, was to say

that the earlier Order in Council was amended: by omitting all the provision of the -

earlier Order in Council -

relating to the subject matter of the inquiry

and then substituting -

and then the matters are listed. If I could ask

Your Honours to look also at the first Order in

Council. What the first Order in Council did in

its opening words was to appoint Mr Fitzgerald:

to make full and careful inquiry with respect

to the following matters.

Where one goes to see what the matters are is to

the second Order in Council. Your Honours, the

fundamental question then becomes the meaning to be

attributed to the words in the second Order in

Council in paragraph 1:

Whether during the period since

1 January 1977.

The question more particularly is whether that

expression means in the period from 1 January 1977

to the date of the Order in Council or whether it

means from 1 January 1977 to whatever date or dates

Mr Fitzgerald happens to be inquiring.

Your Honours, if one looks at the content of the second Order in Council and the subject-matter

in the various paragraphs of it, Your Honours will
see that it all seems to relate to matters in the

past. Could I give the indications in that regard.

Paragraph 1 says:

Mellifont(2) 53 7/3/91

Whether during the period since 1 January

1977 -

the named persons, paragraph l(a) -

was or were directly -

and so on.	A similar form of wording is used in
paragraph	1 ( aa) :

Whether during the period since 1 January

1977 -

Any other person or persons, and if so who,

was or were -

doing various things. In paragraph l(b), the

expression used is:

Whether during the period since 1 January 1977

Any member of the police force has been

guilty -

in paragraph l(c), whether named persons -

directly or indirectly provided or attempted

to provide -

in paragraph l(d)

directly or indirectly received, agreed to
receive or sought or was offered any benefit

or favour -

in paragraph l(e)

If any member of the police

force ..... received, agreed to receive, sought

or was offered any such benefit -

Your Honours, all those expressions are ones which

relate to past events, in our submission.

McHUGH J:	What about paragraph 2?
MR JACKSON:	I was just going to say, in relation to

paragraph 2, paragraph 2 speaks of a defined

period. Your Honour, it does not really seem to

cast much light on it because it is speaking of a

defined period which had occurred some broadly four

years before and is asking whether in that

particular period of six months - it does not

really cast any light on the particular question,

in our submission.

Mellifont(2) 54 7/3/91

McHUGH J: Except, perhaps, Mr Jackson, that by implication

the period which is sought to be identified in

paragraph 1 would seem, on your argument, to be a

quite gratuitous period. It really depends upon

the date of gazettal, does it not?

MR JACKSON:  Your Honour, that is an exact thing, which

might have been foreseen and understood at the time

when the Order in Council was made and, on the

other hand, the undefined time - that is really if

one adopts the other view because the other view

would have the effect that the provisions would

operate until whatever date it might be that the

inquiry came to a conclusion.

McHUGH J: Unless the inquiry itself had a limiting date.

MR JACKSON:  Your Honour, I think the answer is it did not.

McHUGH J: There was no date by which the Commissioner was

to report?

MR JACKSON: No, Your Honour. Perhaps I should just say

this also in relation to what Your Honour

Justice McHugh said to me. No doubt one can look

to the earlier Order in Council and I will come to

it in just a moment but one thing that one does

note in relation to paragraph 2 is that there had

been a specific change in relation to paragraph 2
because what had been asked before was a specific

question or a question related to a specific date,

whether on or about 8 September 1983 various things

happened and the ambit of that inquiry was

enlarged. So that the point I would simply seek to

make about that is it does not seem to take it very

far one way or the other.

Your Honours, could I refer Your Honours also

to this:  we would submit that if one looks at the

terms used in paragraph 1, "Whether during the

period since 1 January 1977" persons "was or were"

engaged in various things, that seems to be

referring back to a period of time which, as at the

date from which the Order in Council speaks, had

come to an end.

Your Honours, I do not want to trouble you

unduly with looking at dictionaries but

Your Honours have been provided with a bundle of

them, the effect of which is that they say that the

prima facie meaning of the term "since" is that it

refers from the commencing time until now.

Your Honours, that appears from the Shorter Oxford and a number of others which you have.

The terms of the Order in Council, in our

submission, if one looks at the Order-in Council,

Mellifont(2) 55 7/3/91

are consistent with the submissions which we have

made. One would expect there to be some cut-off

period in relation to the inquiry, and an inquiry
in the ordinary course of events is one that

generates questions as to the relevance of evidence

and so on, and one would expect there to be some

defined period in relation to it.

BRENNAN J:  Can that be maintained in the light of paragraph 3 of the Order in Council?

MR JACKSON: Well, Your Honour, it can because what it is

saying is -

Whether existing legislation and procedures

are adequate to ensure that conduct ..... is

detected.

Now, that seems to be speaking of identifiable

conduct which is conduct which has occurred during

the period to which it refers. It says, "Find out

if this conduct occurred. If it did, are the

procedures which are now in existence good enough

to combat that?" That is all it is saying, with

respect, Your Honour.

Now, Your Honours, the argument against the

proposition for which we are submitting seems to derive from the change in wording of paragraph 1 between the first Order in Council and the second,

and that is that in the first Order in Council

paragraph 1 had commenced -

Whether during the period 1 June 1982 to

26 May 1987 -

which it should be noted was the date of the first

Order in Council. Your Honours, all that has

occurred, we would submit, is that one has a

situation where the person drafting the first one

has used a particular form of words which has a
particular meaning.	The person drafting the second

one has used a form of words which has exactly the
same meaning and, Your Honours, why should one

assume that simply because there has been a change

in wording to achieve the same meaning, that a

different meaning has been sought to be achieved.

Your Honours, finally on this topic, one would

also note that the expression "during the period"

is an expression which one would think is perhaps

inapt or less apt if one is talking about a period

which is to keep on going.

Your Honours, those are our submissions.

Mellifont(2) 56 7/3/91

MASON CJ:  Mr Jackson, have you anything to say about the

second paragraph under 4? It seemed to me that

perhaps it did support your argument.

MR JACKSON:	I am sorry, Your Honour, the - - -?
MASON CJ:	No 4 on page 2 on Wednesday, 24 June.
MR JACKSON:	I am sorry, yes, I misheard what Your Honour

said.

MASON CJ:  Does that not seem to exclude somebody who is a

member of the police force after the date of the

gazettal?

MR JACKSON:	Your Honour, it depends, in a sense, what view one takes of the Order in Council in this sense,
that what it says is that the term member of the
police force includes not only a current member,
which seems to be a person current, we would
submit, as at the time of the Order in Council. It
also includes any person who was during the period,
and it must be speaking retrospectively, one would
think, a member of the police force. And,
Your Honour, we would submit that whilst it is
possible no doubt if one works from a particular
assumption as to the meaning of it to move the
words such that they could cover it if we were wrong, the ordinary reading of them would support
our proposition.  ·
MASON CJ: Yes.	Mr Solicitor for the Commonwealth.
MR GRIFFITH:	May I hand the Court our contentions.
MASON CJ: Yes.

MR GRIFFITH: If the Court pleases, in our submission,

looking at the matter in a practical sense there is

no infringement of the Re Judiciary Navigation

Act's principle. We say there is not here an

than giving a consultative opinion divorced from	attempt to appeal a proceeding involving no more	the administration of the law in relation to an
actual matter.
As we read section 669A we submit the function of the procedure is to test the trial judge's
ruling with a view to pursuing the prosecution if
the Court of Criminal Appeal finds in effect that the trial judge was wrong and that this was the
intention, in our submission, as confirmed by the
explanatory statement tabled by the Minister as
part of his second reading speech, and can I hand a
copy of that to Your Honours.

MASON CJ: Yes.

Mellifont(2) 57 7/3/91

MR GRIFFITH: 

The particular Minister is now of a fixed

place of abode but none the less his speech and
explanation on page 3259, that is the third sheet
of these materials, explains the function of the
amendment of section 669A enabling the matter to be

referred to the Court of Criminal Appeal not merely

after an acquittal but after the Crown has entered
a nolle prosequi. About two-thirds of the way down

it says:

The granting of power to the

Attorney-General to refer a matter to the

Court of Criminal Appeal where the Crown

enters a nolle prosequi has been considered in

some detail.

A number of points should be made with

respect to this proposal.

In the first instance, it is in the

interests of the community that persons who

have in fact committed criminal offences are

appropriately dealt with by the courts and

sentenced to appropriate penalties.

Some instances have arisen in the past

where rulings have been made by a judge at

first instance which have been incorrect in

law and have operated undeservedly to the

benefit of an accused person.

What is proposed in this instance is that

the Attorney may appeal to the Court of

Criminal Appeal and a ruling given on the

point of law. It is of significance to note

that a trial on the issues has not taken place

and an adjudication of the guilt or innocence

of the accused has likewise not taken place.

There can therefore be no suggestion that

an accused has been placed in double jeopardy.

And over the page it is stated in the fifth

paragraph:

It is appreciated that this is a somewhat

novel provision but the assurance is given

that this provision will not be utilised

unless it is clearly in the interests of the
public that a matter be taken before the Court
of Criminal Appeal with a view to a trial on

the issues based on correct legal

interpretation taking place.

We would submit that the essential reasoning on

this point in a tool is to establish a dichotomy

between abstract opinions and determinations by the

Mellifont(2) 58 7/3/91

court of rights in issue and we submit that this
distinction depends on substance rather than form. On this question of having regard to the principle

of Re Judiciary Navigation Acts Your Honour the
Chief Justice in O'Toole in the ALJR page 620,

right-hand column at point E, referred to:

an academic advisory opinion to the executive

government, dissociated from litigation

actually in train.

Similar expression was used by Your Honours

Justice Deane, Gaudron and McHugh at page 638

right-hand column at F referring to:

a declaration of the law ..... "divorced from

any attempt to administer" the law.

Lastly may I refer to Your Honour Justice Dawson

at page 647A left-hand column to say:

to determine abstract questions of law without
the right or duty of any body or person being

involved.

It is our submission that in the present case the

question of law is not abstract. It is the very

question on which the trial judge has ruled and yet

will be applied in what is, in substance, renewal

of the same prosecution. The scheme of

section 669A as amended is to allow the trial to be

brought to a premature end to avoid the possibility

of double jeopardy and as indicated by the

explanatory memorandum to which I have referred the

Court to enable the trial to run to completion on

the basis of an authoritative determination of the

law; in other words, to avoid the consequence of

having an appeal after verdict that although the

issue of law is determined authoritatively the

particular accused, by reference of principles of

double jeopardy, is not affected so far as the

acquittal is concerned.

DAWSON J:  How do you decide when a matter is an abstract

question or not? I mean, one can understand if

there are existing proceedings in which the
question arises it may not be abstract, but you

seem to extend it to a question the answer to which

can be applied in some identifiable proceedings

existing or prospective.

MR GRIFFITH:  Your Honour, one reference point, just to

pick up the remarks of various of Your Honours I

have referred to, to ask, "Really is this a

declaration of law divorced from any attempt to

administer the law? Now, in the event of an appeal

after a jury verdict of not guilty on a point of

Mellifont(2) 59 7/3/91

law, we would submit it is still appropriate to

regard that issue, being an issue which has arisen

in that trial, an issue of law to be determine

authoritatively on appeal, to regard that as

something not divorced from any attempt to

administer the law.

DAWSON J: Well, take another case: what if the Crown does

not know whether to bring a prosecution or not
because it cannot decide what a particular

provision means, why can it not come to the Court

and ask what it means saying, "It is not divorced

from the administration of the law because if we

get a certain answer we will prosecute".

MR GRIFFITH:  Your Honour might be indicating the fact

that it is a matter of determination, of valued
judgment, if you like, Your Honour, to determine

the difference between what we submit is an

abstract matter which would come within the ambit
of the re Judiciary and Navigation Act approach and
to consider, Your Honour, the question of whether

or not there is something associated with

litigation sufficiently to make it something which

is not regarded as extract.

In this particular case, of course, the

trigger of the mechanism is the fact that there has

to be a prosecution which a nolle prosequi has been

entered before this procedure is used and as made
clear by the explanatory memorandum, this is not

merely a matter of casual connection.

DAWSON J:  Just let us analyse that. It is certainly not

in relation to that proceeding that the answers are

sought because it is gone. That is right, is it

not?

MR GRIFFITH:	Yes.
DAWSON J:	So it is in relation to a prospective

proceeding.

MR GRIFFITH:  Your Honour, there could be several ways to

analyse a proceeding. One view is to regard this

as a residual part of the trial which is ended on

the entering of the· nolle.

DAWSON J: But it is not.

MR GRIFFITH:	Your Honour, that is one approach to it.
DAWSON J:	That would be denying the facts.
MR GRIFFITH:	The second approach is to regard the

proceeding itself as being a proceeding to

determine an issue and we would submit the fact

Mellifont(2) 60 7/3/91

that the applicant attempts today to appeal this

issue to the Court is confirmation, if the Court

needs it, that there is a real issue arising here

which concerns the appl_cant in respect of the

course of proceedings against him in respect of

this alleged act of perjury on his part.

The third way of regarding the procedures is

to - and this is confirmed, we submit, by the

explanatory memoranda - regard the entire

proceedings as, in substance, the course of

proceedings for a prosecution in respect of this count of perjury and the form of procedure which the legislature has set out - admittedly a novel

one but, not, we would submit, a remarkably novel

one, is to provide that when a point of law does

come up in the trial in which the prosecution is

concerned to have it authoritatively resolved,

rather than having what could have been provided,

an interlocutory appeal during the course of the

trial, to adopt a separate course, to provide that

there can be a nolle entered, this procedure is
then engaged under section 669A to enable that

point of law to be determined with the view,

Your Honour, if the point of law is vindicated as

the prosecution determines it, to the matter then

proceeding on the basis of a fresh indictment.

DAWSON J: It is very difficult to see the difference

between that situation and the Crown simply coming

to the Court and saying, "Are we entitled to

prosecute in a prosecution we haven't yet launched
but which we will if you give us a favourable

answer."?

MR GRIFFITH:  Your Honour says there is no difference.

DAWSON J: Well, there is very little to see - - -

MR GRIFFITH:	Your Honour, the issue would remain, in our submission, a matter for the Court to determine the
question of substance.
DAWSON J:	You say the difference is because there has been

a proceeding in the past which has ended?

MR GRIFFITH:  Your Honour, that is one way of looking at it

but what we say is that here it is directly

concerning the prosecution of this person, the

applicant before the Court today, in respect of

this count of perjury.

GAUDRON J: There is, in fact, or there was a proceeding in

the Court of Criminal Appeal?

MR GRIFFITH: Yes, Your Honour.

Mellifont(2) 61 7/3/91

GAUDRON J:  And the effect of that was to determine, in a

real sense, whether there would be any further

proceedings against - - -

MR GRIFFITH: Yes, Your Honour. I am sorry I did not make

myself clear. That was my second proposition as to

the proceeding.

GAUDRON J:  And if it did not decide that, in any event, it

decided what the right of the prosecution to put

its case in a particular way.

MR GRIFFITH: Yes, Your Honour. And we say, Your Honour, if

it is necessary to put it in a particular way in respect of this person, the applicant before the

Court today, in respect of this particular count of

perjury. But we would submit in the alternative,

Your Honour, that that is not essential.

TOOHEY J:  I would have thought, Mr Solicitor, there is some

importance in the fact that the reference
contemplated by section 669A is the reference of a

point of law that arose during the trial. Now, it

is true that in a practical sense the trial has

come to an end, at least temporarily perhaps or

permanently. But as a starting point the reference

itself is a reference to a point of law which has

arisen during the trial itself.

MR GRIFFITH:  I am indebted to Your Honour expressing it

like that.

TOOHEY J:  I am not sure how far that takes you but it seems

to me to be the starting point of the inquiry.

MR GRIFFITH:  Your Honour, in essence our submissions rest

on this approach of referring to substance rather
than form and what we submit, Your Honour, that in

substance here the matter is equivalent to what

would be the position if there was an interlocutory

appeal on this same question of law determined by

the judge. If the legislature provided for an

interruption of the trial to enable the judge's

ruling on this issue of law to be appealed to the

Court of Criminal Appeal and then to be appealed to

this Court, obviously that could give rise to
difficulties during the jury trial. There would be

the problem of reconvening and continuing the trial after many months or even a lapse of a year or more after the process of appeal on that point of law

had been completed.

An alternative course dealing with these issues is the other course contemplated by

section 669A before it was amended, namely that

there could be an application to the Court of

Criminal Appeal on the point of law which did not

Mellifont(2) 62 7/3/91

interfere with the verdict but as is indicated by
the explanatory memorandum to which I have referred

the Court, the view is taken that that is

unsatisfactory because it might result in

undeserved acquittals if the point of law is

reversed and Your Honour, I think Justice Brennan,

referred to in O'Toole at page 631 the obverse side

of that situation, namely that if there is an

appeal on a point of law after an acquittal then

the person who has obtained an acquittal was left
in a position of not being able to vindicate their

reputation if there is a reversal on that point of

law. And this is the point that really, as a

matter of criticism of the course followed in the

Saffron decision, remains one to be followed by

this Court. So that there are two sides of that

aspect of considering whether it is appropriate to

have a review on a point of law after an acquittal.

In our submission, it is clear enough, when it

became a question of legislative choice, the choice

taken by the Queensland legislature is that adopted

here to provide a mechanism which does not produce

the unsatisfactory suspended continuation of a

trial in progress, that does not result in an

undeserved acquittal and the possible unfair

vilification of a person who has obtained an
acquittal but provides, in effect, for a process of

continuous consideration of the issue to obtain a

result that the matter when it goes to the jury, it

goes on the basis that the disputed point of law is

authoritatively resolved and therefore ensures that

there is a fair trial on a correct direction of the

law when the trial eventually takes place. Of

course, one of the donsequences is that the trial

is delayed and, of course, there is a process of

dual presentment.

BRENNAN J: There is no doubt as to what the object of it

all is, Mr Solicitor, but the problem that arises

is that the mechanism which is adopted for it - and

you may say this is unduly technical - is that the

first trial is terminated. There is no longer an

issue between the Crown and the accused. The

accused is perfectly at liberty to go. There is no

question of bail or custody, and that is followed

after the Court of Criminal Appeal proceedings by

the presentation of indictment which, under the

Criminal Code commences a trial.

MR GRIFFITH: That is so, Your Honour.

BRENNAN J: 

So that there are two trials interspersed with

the Court of Criminal Appeal proceedings. That is
the mechanism.

MR GRIFFITH: That is right, Your Honour.

Mellifont(2) 63 7/3/91

BRENNAN J:  And the problem is, is it - as you would say -

unduly technical to regard that as in some way a

single proceeding, or is it to be regarded, in

fact, as separate proceedings?

MR GRIFFITH: Precisely, Your Honour. It has been said by

members of this Court that the procedure of having

an appeal after an acquittal has now become

commonplace procedure for correcting errors of law

in criminal proceedings. That was firstly stated

by Your Honour Justice Deane in Davern v Messel,

155 CLR 21 at page 68. If I could refer also to

Your Honour the present Chief Justice and

Justice Brennan at pages 55 and 56. This was

similarly referred to in the judgment of

Your Honours Justices Deane, Gaudron and McHugh in

O'Toole at page 639.

Your Honour Justice Brennan, if I may say so,

has identified the point at issue, and that is one

where minds might differ, Your Honour. Submissions

may differ, but it is our submissions that if one

uses the guide of substance rather than form and

has regard to what, in essence, is the nature of

this proceeding, in our submission, Your Honour, it

is appropriate to characterize it as a procedure to
resolve a disputed issue of law authoritatively in
the course of complete proceedings leading from the

original laying of an indictment to the final jury

verdict; but accepting that there is this

three-step procedure where one has a second step

dependent on the first, but as Your Honour

indicates, not a continuous indictment during the

second process which may lead to the third process

if the question of law is determined one way rather

than the other.

That, in our submission, is to identify the

problem for the Court rather than to give the

answer to it which is a matter really of review, we

would submit. Perhaps in the situation of O'Toole

one is dealing with - and the Court will have

occasion to deal with that in a few weeks' time - a

more clearer case of case stated, question

reserved, order in the form of case stated and the

like in a civil proceeding.

In this case, Your Honour, one is dealing with

a different situation. One is dealing with a

procedure adapted not for civil procedures, but for

criminal procedures and one which, we would submit,

seeks to adopt a reasonable balance between the

interests of the accused and the public interest,

in ensuring that the parties are tried to verdict

according to law with, so far as that may be

obtained, directions to the jury as a matter of law

being correctly and authoritatively stated.

Mellifont{2) 64 7/3/91

Now, it is a complicated procedure. Obviously

there could be other procedures. Other procedures

have their defects. This procedure has its defect,

but we would submit the issue for the Court is to
determine whether or not, none the less, one comes

within the wide scope of the provisions of section

73 of the Constitution. As my learned friend, Mr

Jackson, pointed out, section 73 in the relevant

part does not, as does sections 75 and 76 of the

Constitution, define the question of the Court's

jurisdiction on appeal by reference to "matter".

BRENNAN J: Mr Solicitor, I can understand the use of the

attractive phrase "substance not formed" when one

is looking at a criterion, for example, of economic

consequences of statutory provisions. I do not

understand it in the present context but perhaps

you could explain it?

MR GRIFFITH:  Your Honour, perhaps could I enlarge a bit

further and then consider whether, in so doing,

Your Honour, I have sufficiently answered

Your Honour's question.

We note that Your Honours

Justice Deane, Gaudron and McHugh in O'Toole at

page 638 referred to the statement of the four

Justices in re Judiciary Navigation Acts at

page 866 and by saying:

if a "matter exists, the Legislature may no

doubt prescribe the means by which the

determination of the Court is to be obtained,

and for that purpose may ... adopt any

existing method of legal procedure or invent a

new one".

And we would submit, Your Honour, that this falls

very much within the situation then discussed by
Your Honours, at page 638G on the right hand column where Your Honours went on to say:

ordinarily by leave only, it is difficult to	In a context where appeals to this Court are
see any real reason in policy why the advantages of new and developing procedures
for the administration of justice should be partly negatived by the approach that the determination of legal questions by such
procedures in the context of an actual matter
must, even though a grant of leave to appeal
would otherwise be fully justified in the
circumstances, be removed from the reach of the appellate jurisdiction of this Court as a matter of jurisdiction unless the determination of itself finally determines the

Mellifont(2) 65 7/3/91

rights of the parties as a matter of legal

theory as distinct from practical effect.

Now, we would submit, that here the operation of

the provision is to provide, in its practical

effect and operation, an authoritative answer on

the relevant question of law which by operation of

the doctrine of precedence will control future

proceedings and settle for all purposes the

question of law involved.

DAWSON J: 

I do not think, Mr Solicitor, you answered the

question which was asked of you. Matters of form
may be the protection against entering on the

slippery slide towards advisory opinions. In other
words, it may be appropriate to say, "As long as

the question arises within the framework of an

existing dispute, that is enough", but to say, "It
can arise outside an existing dispute in relation

to a prospective dispute" is going a long way

further.

MR GRIFFITH: 

Your Honour, that may be going further

but -

DAWSON J:  And to say that there must be a dispute is not

really a matter of form, but if it is then maybe it
is the appropriate protection as to where you draw

the line.

MR GRIFFITH:  Your Honour, we make no submission in the case

of a prospective dispute.

DAWSON J: Well, that is what it is here.

MR GRIFFITH:  Your Honour, we submit, it is not prospective

we submit, Your Honour, that it arises by reason

of -

DAWSON J:  As a matter of form it is then.

MR GRIFFITH:  Your Honour, I hesitate to use the word

"substance" but, Your Honour, if we can

characterize the effect of this order, in our

submission, Your Honour, in substance it is a

declaration in respect of this issue of law which
arises from the trial in respect of which the nolle
prosequi was entered and which, in the course of

the proceedings, Your Honour, depending on the

answer which was given which here is one which

enables the prosecution to continue is one which

may be carried through to the continuation of the

process which may lead to a verdict of the jury in

respect of that allegation of perjury.

Now I appreciate - I hope I appreciate

Your Honour's point that there is a disjunction in

Mellifont(2) 66 7/3/91

proceeding in the way that it has been put out but,

we submit, Your Honour, that there is a relevant

and sufficient connection in those circumstances to

take one outside what Your Honour refers to the

area of the slippery slope where the court of

course is reluctant to become engaged as a matter

of advisory opinion or however it may be expressed
inappropriate for the Court to engage upon the

exercise of a judicial power.

YJur Honour, it is admitted that that, in this

case, is a matter of degree. Of course, on

existing authority, Your Honour, the issue is

foreclosed. It becomes a matter of review,

Your Honour, and we submit the discussion by
various of the Court in O'Toole opens up an

appropriate avenue of reproach for the Court, none

the less, to be faced with the difficult task of

determining on what side of the line this unusual

procedure lies. Your Honour, we are attempting to

point out pointers which, we submit, enable the

Court to take the view that it is appropriate for

this decision in which the applicant has a real

interest and brings the issue before the Court on

his application for special leave to be considered

by the Court and that for any requisite control by

the Court to be exercised by its power over the
grant or withholding of special leave.

This was an aspect which was pointed out, of

course, by three of Your Honours in O'Toole, that
it is possible for the Court to control these
issues by the grant or withholding of special leave

and that is more appropriate mechanism of control

than to impose a strait-jacket of the sort of

strait-jacket which the Swiss Aluminium case

approach would impose on the Court. Here, of

course, the submissions by my learned friend

Mr Jackson and myself assume that the Court frees

itself from the constraint of the Swiss Aluminium

approach and then goes somewhat further to - and it

expression of it - a characterization of the point	is really unavoidable to come back to this form of
before the Court by reference to looking what is, in substance, involved rather than what is the mere
form of what is involved.

I am sorry if, at the end of the day, one or

two or several of Your Honours find that

disassociation from an actual proceeding

uncomfortable, but that is the situation.

DAWSON J:  I just raise one other question with you. should this Court lend its support to a procedure Why

whereby the Crown wants to have its cake and eat

it? I mean, it may be said informally that this is

not a double jeopardy but it comes very close to

Mellifont(2) 67 7/3/91

it. I know that even if it would form an appeal and the verdict were not affected, you may still have difficulties on Saffron's case, but this is one stage even removed from that.

MR GRIFFITH:  Your Honour, I have already submitted that you

could have the cake by providing for an

interlocutory appeal but that would cause really

great problems in administering the - - -

DAWSON J: Well, you would not want to encourage that in a

criminal trial either.

MR GRIFFITH:  You would not want to encourage that,

Your Honour. So, Your Honour, then one has really

the choice between an appeal on a point of law

which does not interfere with the verdict which has

disadvantages both for the Crown and the public

interest and, as Justice Brennan has pointed out, the accused or, Your Honour, you have an approach

which avoids what has been expressed here by the

relevant minister as undeserved results by accused

by enabling the point to be resolved before the

matter goes to a jury at the completion of the

trial procedure.

Your Honour, we would submit, it is not a

question of having the cake and eat it too. It is

a question of providing a mechanism to ensure that

one is tried according to law and that includes,

Your Honour, according to accurate directions as to

the law. Of course, the problem in criminal

proceedings, unlike civil proceedings, is that if the issues of law are incorrectly resolved in the favour of the accused in the jury trial, unless one

has a procedure of one sort or another,

Your Honour, those issues go uncorrected.

DAWSON J:  You could say the same thing about any case of

double jeopardy.

MR GRIFFITH: Yes, Your Honour, but perhaps Your Honour is

using substance and form against me on the question
of double jeopardy because clearly in form here,

Your Honour, there is no element of double jeopardy and, although Your Honour, it may seem, "Well, this

is rather quick footwork for the nolle to be

entered immediately before the direction to the

jury to acquit". What is clear, Your Honour, that

is the intended statutory scheme, that that is how

it should be done for the point of view of enabling

the point identified then to be picked up under the

provisions of (5) and to be taken to the Court of

Criminal Appeal with a view to subsequent

proceedings if the point of law means that the

prosecution remains open, in other words, if the

trial judge has fallen into error.

Mellifont(2) 68 7/3/91

Once again, Your Honour, one cannot do any

more than respond to Your Honour's remarks on that

issue. One is in a difficult area, Your Honour.

There is a scope for value judgments or preferred approach. Here, Your Honour, there is a clear

statutory scheme, in our submission, and it really

is a decision for this Court. We would submit,

absent relevant authority on the assumption that it

is appropriate for this Court to review the Swiss

Aluminium, Fisher v Fisher approach - and we will

not take the Court to the various remarks of Your

Honours in O'Toole in predicating our submissions

as to that - but, Your Honour, obviously one could

pick up this case and make submissions either way.

In our submission, Your Honour, in an area of

doubt, it is appropriate for the Court not to

constrain itself by a constitutional strait-jacket

but to have the operative area of appropriate

constraint by exercise of the unfettered power to

control leave to appeal. So that the slippery

slope, in our submission, Your Honour, is always

something which can be avoided by this Court.

But in this case, Your Honour, in the event

that it is determined that this procedure lies

outside the subject-matter of appeals under
section 73, the consequence, of course, will be

that the accused could be the subject then of a

completed trial and will have to labour his way

back to this Court by an appeal through the Court

of Criminal Appeal to this Court on a special leave

application which does not involve this point to

argue exactly the same issue which has been argued

in 20 minutes or so by my learned friend,

Mr Jackson.

The Court has referred to in O'Toole to the

advantages of efficiency, avoiding waste of cost,

issues of this sort and there is no need for me to

remind the Court. Even in Swiss Aluminium itself,

which took a rather technical approach in result, I

point out that in the judgment at page 426 to 427,

163 CLR, in the report of that judgment, it was

said that the Court should resolve questions of

whether or not a decision falls within section 73

in a practical rather than by an unusual technical

approach, unduly technical approach.

Your Honours, that is not to take it really

very much further than to identify that the Court, as a result of directing itself not so much to the

dead hand of authority on these issues, has a value

judgment to make itself. We submit that it is

sufficient that it is plainly contemplated that the

procedures under section 669A of the Queensland

Code should be utilized in exactly the way in which

they have been utilized in this case to produce an

Mellifont(2) 69 7/3/91

authoritative answer on a question of law that is

not abstract. It is the very question on which the

trial judges rule and which, whether or not the

Court grants special leave in this case, can lead

to another presentment, so that it is a question of

something close to double jeopardy. Whichever way

the Court regards the question of whether or not

there is an order that can be appealed from under

section 73, unless the Court rules that the Court

of Criminal Appeal is in error the accused will be

facing up to the second trial procedure.

TOOHEY J:  Mr Solicitor, in the end it has to be shown that

the proceeding involves the judgment, decree, order

or sentence.

MR GRIFFITH: Yes.

TOOHEY J:	Does that require some identification of one or other of those components or are we looking at
compound expression.
TOOHEY J:	Your Honours, may I hand you an extract from page 741 of Quick & Garran, in answering that
question, and refer to the last paragraph of the discussion in paragraph 302 on that page, where the authors say:

The four words taken together are clearly

wide enough to include every judicial

decision, final or interlocutory, in every

jurisdiction, civil or criminal.

Now, if that be right, the answer to

Your Honour Justice Toohey's question is, "No, it

is not necessary so to determine".

It is possible readily enough to say, "Let's regard this as an order because this is equivalent

to a declaration. A declaration is an order", but

having put that proposition to Your Honours, we

would submit it none the less really comes back to

an issue for decision of this Court as to whether

or not it is appropriate to have regard to the

substantial operation of procedures of this sort

with the control of special leave procedure or

whether the Court regards it as appropriate to

confine its jurisdiction in a more rigid

constitutional limitation so as to ensure that this
Court is not called upon, without it being able to control the situation, to exercise jurisdiction

which is inappropriate to be vested and exercised

by this Court.

We would submit that on no view should this

Court be put in a position where it ~s to exercise

jurisdiction which is regarded as inco.nsistent with

Mellifont(2) 70 7/3/91

the proper exercise of judicial power, both federal

and, on appeal from the States, State judicial

power. We submit that the Court has its ability in

this case to correct erroneous declarations of the

law which will be applied authoritatively as a

result of the decision of the Court of Criminal

Appeal, unless reviewed by this Court, both in

respect of the particular applicant and also
generally with respect to the administration of

criminal law in Queensland.

It might be the second factor is one which

cannot weigh too heavily in the balance of

characterization but we would submit that the
question really is one of degree and what is

appropriate in the interests of accused persons,

particularly this accused person, and also the

efficient administration of justice.

Various members of this Court had regard to

these interests in O'Toole, for example Your Honour
the Chief Justice at page 622, Your Honours

Justices Deane, Gaudron and McHugh at page 637, and

we would submit that having regard to the statutory

scheme of the amended section and the manner of its operation in this case, the appropriate approach is

that which has been submitted by my learned friend

Mr Jackson for the applicant. If the Court

pleases.

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

Queensland.

MR DAVIES:  May it please the Court, we have prepared two

outlines: one deals with the question of
competency and the other with the matter of special

leave and the substance of the appeal.

MASON CJ:	Yes.
MR DAVIES:

Your Honours, can I take you to page 62 of the

appeal book which indicates the dates in time

sequence of the relevant two events. They appear

in paragraphs (n) and (o) on that page.

Paragraph (n) shows that after the learned trial

judge had entered judgment the Crown prosecutor

filed a nolle prosequi on 14 March.	And
paragraph (o) shows that -

On the 26th March 1990 the Attorney-General

referred 4 questions for consideration -

and opinion -

to the Court of Criminal Appeal.

Mellifont(2) 71 7/3/91

BRENNAN J:  How does a learned judge enter judgment for an

element of an offence?

MR DAVIES:  I am not sure what that means, Your Honour.

BRENNAN J: Neither am I.

MR DAVIES:  I am simply reading from that. I think what

happened simply was that he indicated his view on

the question of law, and in consequence of which
before anything further happened, before he

discharged the - - -

BRENNAN J:  The fact is there would not have been any judgment entered on that indictment.

MR DAVIES:  No. Your Honours, can I take you then to

section 563 of the Criminal Code which deals with

nolle prosequi and its consequence.	The first
paragraph of that section provides:

A Crown Law Officer may inform any Court,

by writing under his hand, that the Crown will

not further proceed upon any indictment then

pending in the Court.

The last paragraph says:

When such information is given to the

Court the accused person is to be discharged

from any further proceedings upon that

indictment.

The point I really make is that the accused was

discharged on 14 March.

Can I then go back to the point we make in

paragraph 1 of our outline, Your Honours, which was

that the reservations which Your Honours expressed

in O'Toole as to the correctness of those earlier

cases were limited to determinations made in the
course of proceedings actually in train.	I have

added the words from the Judiciary and Navigation

Acts case, but that is, in effect, what

Your Honours held in O'Toole.

Can I take Your Honours back briefly to that

case without reading from it because I think all

the relevant passages have been read, but can I
take Your Honours first to the judgment of

Your Honour the Chief Justice at page 620, in the second column, letter E, where Your Honour said:

An advisory or consultative opinion -

My learned friend, Mr Jackson, read that passage

and I will not read it again, but we rely upon

Mellifont (2) 72 7/3/91

that; Your Honours Justices Deane, Gaudron and

McHugh at page 638, column lG, the first sentence

in that paragraph, again in a passage which was

read by our learned friend, Mr Jackson; and

finally, Your Honour Justice Dawson in a passage at

page 647, column lE, the first sentence in that

paragraph, again I think read by my learned friend,

Mr Jackson.

MASON CJ: But these passages do not help very much, do

they, because after all they are in the course of

judgments that are indicating that the basic

question is right for reconsideration?

MR DAVIES: Yes, Your Honour, but all I am simply saying is

that to the extent that Your Honours thought it

right for consideration, you limited the

considerations to the Judiciary and Navigation Acts

principle, that is, that it was really a

determination made in the course of a proceeding

actually in train; in other words, in a "matter''.

In our respectful submission, there can be no

doubt here that there is no matter on foot, there

was no matter on foot when the matter was referred

by the Attorney to the Court of Criminal Appeal and
there was no matter on foot when the

Court of Criminal Appeal gave its opinion to the

Attorney. And, Your Honours, in our respectful

submission, it is not correct to say in substance,

if not in form, that this bears some relationship

to an appeal from the trial which had taken place

and which had terminated. It, in our respectful

submission, bears no relationship to an appeal.

The section providei for appeal in subsection (1).

It gives the Attorney a right of appeal against

sentence and it provides in another section of the

Code for a right of appeal against conviction by an

accused person and in both those cases,

Your Honours, it provides a time limit within which

an appeal must be instituted, not surprisingly.
That is in section 671 of the Code.	It provides,

Your Honours, in subsection (1), that a person

convicted may appeal within 28 days and it provides

in subsection (2) that the Attorney-General may

appeal against sentence within 28 days, but no

where in the Code is there any time limit within which the Attorney-General is obliged to refer a question of law.

TOOHEY J: Is there any time limit, Mr Solicitor, in rules?

MR DAVIES: No. Your Honour, in our respectful submission,

one does not have to give fanciful examples. One

could imagine that 12 months after an acquittal or

after a discharge after nolle prosequi the Attorney

may be confronted again with the problem which has

Mellifont(2) 73 7/3/91

arisen and wish then to seek the opinion of the
Court of Criminal Appeal.

Can I also refer to the fact that the section envisages, not as some perhaps analogous provision

to do, for the Court to state something for the

Court of Criminal Appeal or that the Court refer

the matter to the Court of Criminal Appeal, it

provides for the Attorney to seek the opinion of

the Court of Criminal Appeal and for the court to

furnish its opinion to the Attorney, not for the

Court of Criminal Appeal to deliver judgment or to

do anything necessarily in open court.

TOOHEY J:  What it does do, Mr Solicitor, is provide that

notice has to be given to the person discharged and

there is provision for that person to address the

Court, which carries with it some suggestion of an

inter partes proceeding.

MR DAVIES: It does, Your Honour but, in our respectful

submission, that is the only element of an inter

partes proceeding. All the other indications, in

section 669A and the other sections are against it.

The form of it is against it and in fact

Your Honours, in O'Toole's case, cited passages

from the judgments in Federated Engine-Drivers and

Firemen's Association and The Merchant Service

Guild where the phrase of "herein determine" and so

on were thought to be of some relevance in

determining whether the jurisdiction exercised was

the exercise of judicial power.

McHUGH J:	Mr Solicitor, if you look at the substance of the matter, is there really any real difference between
what has happened in this particular case and say a
case like Sankey v Whitlam where this Court heard
an appeal against a declaratory order sought by the
accused that they had been wrongly committed for
trial or that there was no offence?
MR DAVIES: There are essential differences, Your Honour.

One is, this is not in an existing proceeding, it

is not in the course of a proceeding, there is

no - - -

McHUGH J: Neither was it in that case, in a sense,

because -and there had been a committal but the

trial had not commenced.

MR DAVIES: But in a very real sense, Your Honour, there was

a continuing proceeding, a wrongful committal in,

as Your Honour put it, the practical sense there

was, there is not here. In that case, Your Honour,

there could be no doubt that it was clearly a

decision made inter partes whereas here the form of

it is of an opinion given to the Attorney, really,

Mellifont(2) 74 7/3/91

with a view to how the Attorney should conduct

himself in the future; whether the Attorney should

indict this person or other people on a particular

charge in the future or whether in fact this

particular question of law may be relevant to

charges of a quite different kind.

McHUGH J: It certainly has that wider effect but, I mean,

as we know it is proposed to charge the accused,

the applicant, and that was what one would assume

would happen in most of these cases.

MR DAVIES:  I do not know about most of these cases,

Your Honour, I do not know - - -

McHUGH J: When I say, most of these cases, I mean where

this procedure is adopted during the course of a

trial or after an indictment has been discharged

or

MR DAVIES:  Your Honour, obviously it would not be the case

under subsection (2)(a) where a person has been

acquitted. But whether it is the case under

paragraph (b) or not, in our respectful submission,

whether the exercise of power is the exercise of a

judicial power and whether it occurs in a matter

surely cannot depend upon whether the Crown
prosecutor indicates his intention to present

another indictment and if so when he does so,

because if he did it afterwards one would have

thought that it, perhaps, might or might not be

relevant.

McHUGH J:  No, but if you look at the practicalities, this

accused is bound by this decision. You have a new

trial and the judgment of the Court of Criminal
Appeal stands, or the opinion of the Court of

Criminal Appeal stands, from a practical point of view he is bound by it and he may be convicted, he

may be in jeopardy as a result of it.

MR DAVIES: Everyone, Your Honour, who is confronted with

this question of law will be bound by it in the

same sense and in no greater or lesser sense than

the person who was accused here.

DEANE J: But on your approach the Attorney-General would

not have to tell anybody what the opinion was which

means nobody would be bound then.

MR DAVIES: That is, obviously, one construction of the

section, Your Honour, though, obviously - I should

say something: one other view is that if the former

accused has a right to be heard on the matter,

perhaps he has a right to hear what the

result - - -

Mellifont(2) 75 7/3/91

BRENNAN J:  Mr Solicitor, could the 669A procedure be

adopted by an attorney when there is a series of

offences to be prosecuted involving a common point
and he takes the 669 procedure in relation to

case 1 and there are another 99 cases awaiting?

MR DAVIES: Yes, in fact that would often be the case in

which it would be done, one would have thought

perhaps.

BRENNAN J: Without hearing any of the parties in the 99?

MR DAVIES:  Yes, and they would be equally bound as

number 1. Having answered Your Honour in that way,

we do not see that as a point against us, in fact

on the contrary, Your Honour, we would submit, that

that really supports our argument and it is not a

decision made inter partes, it is not a decision

made during the course of an existing matter.	It
is made, really, with a view to guiding the

Attorney-General as to how he should act, whether

in fact he should indict this or other people.

McHUGH J:  Having regard to the doctrine of separation of

powers which I assume exists in Queensland as it

does everywhere else, why should you read this

section as the Court giving advice to the

Attorney-General, in effect?	It has all the
trappings of a judicial proceeding.	You have to

give notice to a particular person even when he is

acquitted.

MR DAVIES: That is the only trapping, Your Honour.

McHUGH J:  Yes, but it is very much an inter partes case.

Even though he may not be affected from a legal point of view if he has been acquitted,

nevertheless it has consequences for him, social

consequences.

MR DAVIES:

No more for him than for anyone else who might

be awaiting indictment.

McHUGH J:	It may well have in his particular case because although he has been acquitted the effect of the
Court of Criminal Appeal's decision may be that he
should not have been acquitted and that he was in
fact guilty of the offence.
MR DAVIES:	He might be better off than the next person,

Your Honour. The only trapping of a judicial

proceeding is the one Your Honour mentioned. All

the other indicia, in our respectful submission,

are to the contrary.

TOOHEY J:  Except you pose the question, or the proceeding, as if it is one that may affect a whole range of

Mellifont(2) 76 7/3/91

people which is undoubtedly correct but, in a

sense, that is really by the by, is it not? If you

have somebody who is affected or who may be

affected, that is the situation which gives rise to

this sort of application and which requires an

answer in respect of the application made by that

person, not hypothetical applications that may

never be made?

MR DAVIES:  Your Honour, there are a number of situations

which may give rise to an application of this kind.

This happens to be this one in this case, that is

that it does appear - that a prosecutor has

indicated that he intends to indict this person

again.

TOOHEY J:  That may be quite crucial, may it not? I mean,

if somebody came along and said, "I am a bit

worried that I might be charged with this offence

and therefore I would like to challenge the

decision on the reference" that might be one

situation, but if you have a person who has been

charged who has been discharged and who faces a

further indictment, so it appears - - -

MR DAVIES:	May.
TOOHEY J:	The application has to be dealt with by

reference to that person, does it not, not to a

range of other situations that might exist?

MR DAVIES:  Well, if that were so, Your Honour, then no

answer can be given to subsection (2)(b) except in

this case. In our respectful submission either the

exercise of power under subsection (2) is the

exercise of judicial power in a matter or it is not

and that cannot, in our respectful submission,

depend upon what the particular facts of the case

are.

TOOHEY J:  No, it is not determined by the facts of the case, but the facts of the case might determine

whether there is a judgment, order, decree or

sentence.

MR DAVIES:  Yes. Well, if one even goes to the wider

question - I was really even arguing the wider

questions, that is first that it is not the

exercise of judicial power and, secondly, it is not

the exercise of judicial power in a matter and, in

our respectful submission, that must be looked at

in the wider picture; in other words, one must

look at that in every case and in our respectful

submission Your Honour says rightly that this is a

case which has been perhaps provoked by the

possibility that this person may be indicted again.

Mellifont(2) 77 7/3/91

There may be many cases, and it may well be

that the more likely case in which

subsection (2)(b) will be utilized is where there

is no intention to indict that person again but

there are a dozen other cases waiting in the wings

where the Attorney does not know whether he should

proceed or not.

TOOHEY J:  Yes, but when a person has been through a trial

and faces the possibility of another trial, that

may - and I do not say it does, but that may create a situation in which one can more readily discern a

judgment, decree, order or sentence than one could

in other situations.

MR DAVIES:  One can only, perhaps, in our respectful

submission, do it by relating the opinion which is given here back to the trial which was terminated.

TOOHEY J: Well, that may be.

MR DAVIES: Because it could really only be, in our

respectful submission - if it is an order it could really only be an order in that matter and, in our
respectful submission, it cannot be an order in

that matter. That matter has terminated and it is

not even related to that matter in the way in which

an appeal is related to it, in our respectful

submission.

Your Honours, we referred in paragraph 4 of

our outline to a number of cases which, in our

respectful submission, are distinguishable on the

question of whether this was an exercise of

judicial power. I am talking now about the form in

which it is conferred and I am talking about the

way in which in section 669A(2) it is conferred in

terms of consideration and opinion and the

furnishing of an opinion to the Attorney-General.

By contrast, in our respectful submission, it was

held, as Your Honours will recall, in Judiciary and

Navigation Acts that the exercise of power in that

case was the exercised judicial power. In our

respectful submission, that is distinguishable from

this case in the form in which that power was

conferred.

Can I take Your Honours to that case,

29 CLR 257. Your Honours can see from the

headnote, sections 88 and 93 refer respectively to

the obligation to:

hear and determine -

and making:

Mellifont(2) 78 7/3/91

the determination "final and conclusive and

not subject to any appeal".

Sir Owen Dixon, when arguing it for the

Attorney-General for Victoria, submitted at

page 259 in the first sentence there - and this is

a submission which was accepted. He said:

What Part XII of the Judiciary Act seeks to obtain from the High Court is a judicial decision, and not an advisory opinion. That

is shown by section 93, which purports to make

the determination binding and conclusive and

not subject to any appeal. If that were not

so, the power would not be judicial.

That submission was accepted. If Your HonouL_

then go to page 263, the joint judgment sets out

the sections and italicizes "jurisdiction to hear

and determine", and then in the fourth line of the

first full paragraph on the following page,

Their Honours say:

After carefully considering the provisions of Part XII, we have come to the conclusion that

Parliament desired to obtain from this Court

not merely an opinion but an authoritative

declaration of the law.

So they really reached that determination,

Your Honours, after looking at the form in which

the obligation was cast on the Court in those two provisions at Part XII. The form of words in the

section is also distinguishable from those in

Saffron. If I can take Your Honours, I think,

perhaps to the headnote of that case will be

sufficient, 88CLR 523, where, Your Honours, if you

look at the provisions quoted there, Your Honours

will see that section 5A(2)(a) provides that:

The judge ..... shall ... reserve for decision by

the Court -

and it says:

The question reserved shall be referred ..... to the Court of Criminal Appeal for decision.

Then down towards the bottom:

(c) The Court of Criminal Appeal shall have

power to determine the question reserved -

and -

The determination by the Court the Court of

Criminal Appeal -

Mellifont(2) 79 7/3/91

and so on. So, again there was a hearing and

determination by the Court of Criminal Appeal.	Can
I take Your Honours then to some passages from

Federated Engine Drivers v Merchant Service Guild.

It is sufficient to take Your Honours to

O'Toole's case, because the relevant passages, or most of them, all that I need, I think, are set out in the judgments in that case.

I ask Your Honours to look at O'Toole,

64 ALJR, first of all in the judgment of judgment of Justice Isaccs:

"The legislature, while not in so many

words directing [the President] to follow it,

expects him to do so. 'Hear and determine'

involves a decision which all subordinate

tribunals must follow.

Then Your Honour later referred in the same column

towards the bottom to the Merchant Service Guild

and to the judgment of Justice Isaccs again where

he said:

"The determination of this Court is one which

the law expects and requires the President to

accept and apply as a binding declaration of

law in the matter before him.

Then if I can take Your Honours over to the

judgment of Your Honour Justice Brennan for some

more passages from that Federated Engine Drivers case, at page 628 Your Honour referred to in the

second column just above letter D the judgment of

the Chief Justice and in that judgment His Honour

said in the third sentence:

And I think that the use of the words 'hear and determine' indicate unmistakably that the

proceeding is judicial.

Then down to letter G where Justice Barton said:

"I cannot help thinking that the words 'hear

and determine' govern paragraph 2 of s 31 and

that the 'hearing and determination' there
prescribed is a judicial act.

Can I then take Your Honours over to

Your Honour Justice Dawson's judgment for two

further passages? Page 644, Your Honour referred

re Knight and Tabernacle Permanent Building

to there and, then I think - this is the same passage

Mellifont(2) 80 7/3/91

Federated Engine- and over to the top of the following page.

as was referred to before in

MASON CJ:  Mr Solicitor, it would be convenient now to

adjourn. We will stand this case over to a day to

be fixed and that may well be that it coincides

with the date which we have tentatively in mind for

Marion's case which I understand to be 30 April.

The Registrar will keep the parties informed.

AT 3.59 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Mellifont(2) 81 7/3/91