2. Set aside order of the Full Court of the Supreme Court of South Australia made on 14 March 2001.
3. Remit proceeding to the Full Court of the Supreme Court of South Australia for further hearing and determination in accordance with the decision of this Court.
On appeal from the Supreme Court of South Australia
Representation:
C J Kourakis QC with D Petraccaro for the appellant (instructed by Director of Public Prosecutions (Commonwealth))
B W Walker SC with A L Tokley and S D Ower for the first respondent (instructed by Jon Lister)
S W Tilmouth QC with N M Hurley for the second respondent (instructed by Noelle Hurley)
Intervener:
B M Selway QC, Solicitor-General for the State of South Australia, with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Gee
Criminal Law – Jurisdiction – Exercise of federal jurisdiction by state Supreme Courts – Offences against laws of the Commonwealth – Where s 350 of the Criminal Law Consolidation Act 1935 (SA) provides for the Full Court of the Supreme Court of South Australia to hear and determine questions of law reserved by the District Court – Whether s 68(2) of Judiciary Act 1903 (Cth) confers jurisdiction on the Full Court of the Supreme Court to hear and determine a question of law reserved by the District Court under State law during a trial of persons charged with offences against the laws of the Commonwealth.
Criminal Law – Prosecution – Commonwealth Director of Public Prosecutions – Powers of – Whether questions of law reserved to the Full Court constituted an appeal for the purposes of s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).
Appeal – Whether case stated procedure provided for by s 350 of the CriminalLaw Consolidation Act 1935 (SA) constitutes an appeal for the purposes of s 68(2) of the Judiciary Act.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Gee [2003] HCA 12
Case
[2003] HCA 12
Decision Date
CaseChat Overview and Summary
The case of *R v Gee* concerned a prosecution for offences against the *Crimes Act 1914* (Cth) in the District Court of South Australia. The respondents, Robert Gee and Hans Thaller, were charged with defrauding the Commonwealth. Following a preliminary ruling by the District Court judge excluding certain evidence, the Commonwealth Director of Public Prosecutions (CDPP) sought to have questions of law reserved by the District Court determined by the Full Court of the Supreme Court of South Australia, pursuant to state legislation. The Full Court of South Australia, by majority, held that it lacked jurisdiction to hear and determine these reserved questions, as the state law providing for such reservations was not applied by the *Judiciary Act 1903* (Cth) in the exercise of federal jurisdiction.
The High Court of Australia was required to determine two principal legal issues. Firstly, whether section 68(2) of the *Judiciary Act 1903* (Cth) conferred jurisdiction on the Full Court of the Supreme Court of South Australia to hear and determine questions of law reserved by the District Court under state law, in circumstances where the underlying prosecution involved offences against the laws of the Commonwealth. Secondly, the Court considered whether the case stated procedure, as provided by section 350 of the *Criminal Law Consolidation Act 1935* (SA), constituted an "appeal" for the purposes of section 9(7) of the *Director of Public Prosecutions Act 1983* (Cth), which grants the CDPP rights of appeal in prosecutions for federal offences.
The High Court allowed the appeal, holding that the Full Court of the Supreme Court of South Australia did possess federal jurisdiction to hear the reserved questions. The Court reasoned that section 68(2) of the *Judiciary Act* operated to invest state Supreme Courts with jurisdiction to hear and determine matters arising under Commonwealth law, and that the procedure for reserving questions of law under state legislation was a component of the overall adjudication of the federal charges. Furthermore, the Court concluded that the reservation of questions of law constituted an "appeal" within the meaning of section 9(7) of the *Director of Public Prosecutions Act*, thereby authorising the CDPP to pursue such a determination.
Consequently, the High Court set aside the order of the Full Court of the Supreme Court of South Australia, which had declined jurisdiction. The proceeding was remitted to the Full Court for further hearing and determination in accordance with the High Court's decision.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order of the Full Court of the Supreme Court of South Australia made on 14 March 2001.
3. Remit proceeding to the Full Court of the Supreme Court of South Australia for further hearing and determination in accordance with the decision of this Court.
Background
Background to the litigation
The problem before this Court thus stems from the constitutional arrangements for the vesting of federal jurisdiction in State courts. The investment of State courts with "like jurisdiction" for the purposes of criminal proceedings for offences against the laws of the Commonwealth and the broader question concerning the application of State laws as "surrogate"[78] federal laws in the exercise of federal jurisdiction are subjects upon which "decided cases … do not speak with a single and compelling voice"[79]. Indeed, there have been significant divisions of opinion in this Court[80], as there were in the Full Court in this case. [78]Maguire v Simpson (1977) 139 CLR 362 at 408 per Murphy J by reference to s 64 of the JA.[79]Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 651 [257] per Hayne J, in the context of the exercise of federal jurisdiction in the Territories and by reference to the JA, s 79. See also Peel v The Queen (1971) 125 CLR 447 at 468 per Gibbs J.[80]eg Williams v The King [No 2] (1934) 50 CLR 551; Peel v The Queen (1971) 125 CLR 447; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559.The facts Mr Robert Gee and Mr Hans Thaller ("the respondents") were jointly charged in May 1998 with offences against the Crimes Act 1914 (Cth)[81]. The respondents were alleged to have defrauded the Commonwealth by under-stating their incomes for taxation purposes. On 19 May 1998 a prosecutor, on behalf of the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") and in the name of the Queen, presented an information against the respondents to the District Court of South Australia. It was accepted that this document constituted an indictment alleging offences against a law of the Commonwealth. As a result of the engagement of s 80 of the Constitution, the trial of the respondents was required to be by jury and to be "held in the State where the offence was committed". That State was South Australia. [81]ss 29D and 5. For the purposes of the trial, the District Court was constituted by Anderson DCJ. The respondents were arraigned before his Honour. They pleaded not guilty to all counts of the indictment. They have not been re-arraigned. No jury have yet been empanelled for the trial. In accordance with s 285A of the State Act and the Rules of the District Court of South Australia[82], before the jury were empanelled, the respondents sought a preliminary determination by Anderson DCJ, of a question relating to the admissibility of prosecution evidence. His Honour acceded to that request. He ruled that the evidence had been obtained illegally and, in the exercise of his discretion[83], concluded that it was inadmissible and should be excluded from the trial. The respondents claim that, if that ruling stands, they will be entitled to an acquittal at their trial. It is unnecessary in this appeal to examine the grounds for the ruling, its correctness or its consequences.[82]District Court Rules 1992 (SA), Pt 4 r 9.01 provides for the issuing and service of such an application.[83]See Bunning v Cross (1978) 141 CLR 54.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH AND GUMMOW JJ
(dissent)
KIRBY J
(dissent)
There remains for consideration the respondents' submission by Notice of Contention concerning the powers and functions of the Commonwealth DPP. Sub‑section 9(7) of the DPP Act states:"Where the [Commonwealth DPP] has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the [Commonwealth DPP] may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him or her otherwise than under this subsection, such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution."In s 3(1), the term "appeal" is defined as including:"(a)a proceeding of the same nature as an appeal; and(b)a review or rehearing, or a proceeding of the same nature as a review or rehearing."The matter of which the Full Court was seized with respect to the case stated under s 350 of the Consolidation Act was a procedure in the nature of a review of the ruling by the trial judge on the voir dire. Thus it was an "appeal" for the purposes of s 9(7) of the DPP Act.Conclusions The Full Court should have dismissed the objections to competency. It was invested with federal jurisdiction with respect to the determination of the questions reserved. Section 68(2) operated twice in that respect. First, the determination was the exercise of jurisdiction with respect to the trial of the respondents. The respective steps taken in the District Court and the Full Court were elements in the adjudication of the one matter arising under Commonwealth law, the determination of the charges laid against the respondents. Secondly, the proceeding in the Full Court was an "appeal" for the purposes of s 68(2). It is unnecessary to decide whether these are concurrent investments of jurisdiction or whether the second is subsumed by the first. The steps taken by the Commonwealth DPP were within the charter given by the DPP Act.Orders The appeal should be allowed. The order of the Full Court in which it declined to answer the five questions reserved should be set aside. The proceeding should be remitted to the Full Court for further hearing and determination. This is an appeal from a judgment of the Full Court of the Supreme Court of South Australia[76]. That Court concluded, by majority[77], that it lacked jurisdiction to decide questions reserved by a judge of the District Court of South Australia. The proceedings in the District Court arose out of the prosecution of offences against a law of the Commonwealth.[76]R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295 ("Thaller and Gee").[77]Doyle CJ, Prior, Duggan and Lander JJ; Bleby J dissenting. The Criminal Law Consolidation Act 1935 (SA) ("the State Act"), provided for the reservation of questions by a trial judge for consideration by a Full Court. It also empowered that Court to determine such questions. However, the Full Court held that the State law was not picked up and applied by the Judiciary Act 1903 (Cth) ("the JA") to a case in federal jurisdiction.