R v Gee - [2003] HCA 12

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
THE QUEEN   APPELLANT
AND
ROBERT GORDON POLLYBANK GEE  RESPONDENTS
AND ANOR
The Queen v Gee
[2003] HCA 12
13 March 2003
A61/2002
ORDER
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.
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.
Words and phrases: "appeal".
Crimes Act 1914 (Cth), ss 5, 29D.
Criminal Law Consolidation Act 1935 (SA), s 350.
Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA), s 4.
Director of Public Prosecutions Act 1983 (Cth), s 9(7).
Judiciary Act 1903 (Cth), ss 2, 39(2), 68(2), 69(1), (2), (2A), 72, 73, 74, 75, 76, 77.
Judiciary Act 1932 (Cth)
Statutes Amendment (Attorney-General's Portfolio) Act 1996 (SA), s 9.

GLEESON CJ. The central issue in this appeal concerns the relationship between s 350 of the Criminal Law Consolidation Act 1935 (SA) ("the Criminal Law Consolidation Act") and s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The question is whether s 68(2) of the Judiciary Act confers jurisdiction on the Full Court of the Supreme Court of South Australia to hear and determine a question of law reserved by the District Court, on an application made under s 350 of the Criminal Law Consolidation Act, where the District Court is dealing with the trial of persons charged with offences against the laws of the Commonwealth. That question was answered in the negative by a majority of a specially constituted Full Court of the Supreme Court of South Australia[1]. That Court declined to follow an earlier decision of its own[2], and a decision of the Court of Appeal of Queensland on a similar point[3].
[1]R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295.
[2]Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.
[3]R v Cook; Ex parte Director of Public Prosecutions(Cth) [1996] 2 Qd R 283.
The facts of the case, and the history of the proceedings in the South Australian Courts, appear from the reasons for judgment of McHugh and Gummow JJ.
The case stated procedure for which s 350 provides, in its application to a matter within State jurisdiction, enables the Full Court of the Supreme Court, where appropriate, to review rulings of the kind made in the present proceedings. Whilst the fragmentation of criminal proceedings is ordinarily to be avoided, there may be circumstances where such a procedure is useful. It is part of the current South Australian system of criminal justice. When State courts hear criminal cases in federal jurisdiction, the general purpose of s 68 of the Judiciary Act is to bring about the result that, in the exercise of such jurisdiction, State courts apply the same procedure as when they exercise State jurisdiction[4]. The question is whether that legislative purpose, as expressed in the language of s 68(2), extends to the s 350 procedure.
[4]R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345.
Section 68(2) provides:
"(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."
The word "appeal" is defined in s 2 of the Judiciary Act to include any proceeding to review or call in question the decision of any court or judge. The Full Court correctly held that the stated case procedure under s 350, when invoked in an ordinary case in the exercise of State jurisdiction, involves a proceeding to review or call in question the decision of a primary judge.
As was acknowledged by Doyle CJ, who was in the majority in the Full Court, the language of s 68(2) is both general and ambulatory. This is consistent with its purpose, which is to "assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences"[5]. In Williams v The King [No 2][6] Dixon J, speaking of the reference to appeal procedure, said:
"But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description 'appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith'. This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice."
[5]Williams v The King[No 2] (1934) 50 CLR 551 at 558 per Rich J.
[6](1934) 50 CLR 551 at 560.
That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.
Such a construction of s 68(2) leads to the result for which the appellant contends; a result that, as noted, had been accepted previously by the Full Court of the Supreme Court of South Australia, and the Court of Appeal in Queensland. The s 350 procedure involves the Full Court in an exercise of jurisdiction with respect to the hearing and determination of appeals arising out of a trial of persons charged with offences against the laws of the State or proceedings connected therewith. There is nothing in s 80 of the Constitution that bears upon the matter. Therefore, the Full Court has the like jurisdiction with respect to persons, such as the respondents, who are charged with offences against the laws of the Commonwealth.
The reason given by the majority in the Full Court for declining to accept that construction was based on legislative history and context.
Section 68 of the Judiciary Act is in Pt X. It constitutes Div 1 of Pt X, and is headed "Application of laws". The sub-heading is "Jurisdiction of State and Territory courts in criminal cases". Division 2 is not presently relevant. Division 3, headed "Appeals", reflects an important difference between the criminal justice system at the time of the enactment of the Judiciary Act and the present. Before 1912, criminal appeals in their present form did not exist in the Australian States. The Criminal Appeal Act 1912 (NSW) introduced criminal appeals in that State. Its counterpart in South Australia was enacted in 1924[7]. However, before 1912, there was legislation in the States which permitted a form of appellate review of decisions in criminal cases by way of case stated. When the Judiciary Act was enacted in 1903, ss 72-76, under the heading "Appeal", set out what was described in Seaegg v The King[8] as a "code of procedure for an appeal by way of case stated upon a point of law raised at the trial." That procedure was generally similar to corresponding State procedures.
[7]Criminal Appeals Act 1924 (SA).
[8](1932) 48 CLR 251 at 256 per Rich, Dixon, Evatt and McTiernan JJ.
At that time, s 68(2) did not contain the words "and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith". Thus, ss 72-77 were the only part of Pt X that dealt with appeals. Section 68 said nothing on that subject.
The words referred to in the preceding paragraph came to be added to s 68(2) in the following circumstances. New South Wales, in 1912, introduced a procedure for criminal appeals of the kind with which we are now familiar. In Seaegg, a question arose as to whether s 68, as it then stood, picked up that procedure and conferred upon the New South Wales Court of Criminal Appeal jurisdiction to hear an appeal by a person convicted in a State court of a federal offence. This Court answered that question in the negative. Section 68(2) was then amended to overcome that result by adding the reference to appeals. Thenceforth, appeals were dealt with by Div 1 of Pt X as well as by Div 3.
There is no reason why the reference to appeals in s 68(2) should not be applied with full generality, having regard to the purpose of Div 1 of Pt X of the Judiciary Act. Plainly, Div 3 is no longer a code of procedure with respect to appeals. It would be contrary to the purpose of the legislation to treat Div 3 as the exclusive source of jurisdiction in relation to appeals by way of case stated. The case stated procedure provided for by s 350 of the Criminal Law Consolidation Act is a form of appeal. It does not further the general policy of placing the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State to treat the provisions of Div 3 of Pt X as, in effect, confining the case stated procedures provided for by the Judiciary Act to those of the kind in force at the time of Federation. The fact that this might result in a degree of overlap between Div 1and Div 3 does not alter the case. This Court said, in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[9]:
"It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words."
[9](1994) 181 CLR 404 at 421.
For those reasons I consider that the majority of the Full Court erred in the ground upon which they decided the case.
It is necessary to make brief reference only to certain other arguments on behalf of the respondents that were rejected by the Full Court.
As explained above, the procedure established by s 350 of the Criminal Law Consolidation Act comes within the meaning of "appeal" as defined by s 2 of the Judiciary Act.
It was contended that what was involved was not an appeal arising out of a trial, because the trial of the respondents had not yet begun. The procedure of early arraignment, and multiple arraignments, for the purpose of enabling resolution of questions such as those that arose in the present case, was discussed in R v Nicolaidis[10]. It is a familiar and convenient procedure designed, among other things, to minimise the inconvenience to juries that results from lengthy argument, often in the absence of the jury, after a jury has been empanelled, about matters that could have been resolved at an earlier stage. The respondents had been arraigned, and, for the purposes of s 68(2), the trial had commenced.
[10](1994) 33 NSWLR 364 at 367.
The review of the trial judge's decision on the questions reserved did not involve an invitation to the Full Court to give a purely advisory opinion. The Full Court could have directed the dismissal of the application to exclude evidence, and at the least, the trial judge, on an application to reconsider his rulings, would be required to follow the decisions of the Full Court.
As to the argument that there was a lack of capacity in the appellant to invoke the s 350 procedure, the matter is covered by s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).
I would allow the appeal and set aside the order of the Full Court and remit the matter to that Court for hearing and determination in accordance with the decision of this Court.
McHUGH AND GUMMOW JJ. The important question raised by this appeal from the Full Court of the Supreme Court of South Australia[11] concerns the construction of s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Does s 68(2) invest that Court with federal jurisdiction to hear and determine a question of law arising in relation to a trial in the District Court of offences against the laws of the Commonwealth and reserved by the District Court under a requirement imposed by order of the Full Court made on an application under s 350 of the Criminal Law Consolidation Act 1935 (SA) ("the Consolidation Act") by the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP")?
[11]R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295.
The principal provisions
Sub‑section (2) of s 68, after its amendment by the Judiciary Act 1932 (Cth) ("the 1932 amendment") reads:
"The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth." (emphasis added)
The words emphasised were added by the 1932 amendment.
The term "appeal" is defined in s 2 of the Judiciary Act as including "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge".
In their application to State courts, the words "exercising jurisdiction" in the opening terms of s 68(2) refer to the jurisdiction conferred by the relevant State law in operation from time to time whether enacted before or after the commencement of the Judiciary Act[12]. What was said by Dixon CJ, Kitto and Taylor JJ of s 39 of the Judiciary Act in The Commonwealth v The District Court of the Metropolitan District is true of s 68(2), namely[13]:
"There is nothing in the language of s 39 to prevent the provision receiving an ambulatory effect and the known purpose of the provision could hardly be achieved unless it received such an effect or was repeatedly re‑enacted at frequent intervals."
This "basal character"[14] of s 68(2) in the investment of federal jurisdiction ensures that, within the limits of its provisions and s 80 of the Constitution, the exercise of federal jurisdiction is facilitated by those developments which from time to time are provided by State law for the exercise of jurisdiction in State matters. This appeal concerns the utilisation of that procedure provided by s 350 of the Consolidation Act.
[12]cf The Commonwealth v The District Court of the Metropolitan District (1954) 90 CLR 13 at 20.
[13](1954) 90 CLR 13 at 20.
[14]cf Goward v The Commonwealth (1957) 97 CLR 355 at 360.
The history of the South Australian legislation respecting the stating of cases in the criminal jurisdiction was traced by Zelling J in R v Millhouse[15]. Section 350 of the Consolidation Act in its present form was substituted by s 4 of the Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA) and then amended by s 9 of the Statutes Amendment (Attorney-General's Portfolio) Act 1996 (SA). The decision of this Court in Director of Public Prosecutions (SA) v B[16] was concerned with s 350 in an earlier form. As originally enacted, s 350 like its predecessors only applied where a question of difficulty arose "on the trial or sentencing" of a person "convicted" on information. One of the consequences was that a case might be stated under s 350 only after conviction[17]. Another, as illustrated by B, was that a question of law respecting the entry of a nolle prosequi arises at a stage anterior to trial, not on trial.
[15](1980) 24 SASR 555 at 560‑564.
[16](1998) 194 CLR 566.
[17]R v Millhouse (1980) 24 SASR 555 at 563.
Section 350 now provides for the reservation and determination by the Full Court of a "relevant question" on an issue which is "antecedent to trial" or "relevant to the trial or sentencing of the defendant" (s 350(1)). Such a question "must be reserved" by the trial court for consideration and determination by the Full Court if "the Full Court so requires" on an application under the section (s 350(2)). The term "relevant question" is defined in sub‑s (a1) so as to include "a question of law". The expression "trial court" does not appear in s 350; rather, it identifies the "court by which a person has been, is being or is to be tried or sentenced for an indictable offence" (s 350(1)). It will be apparent, as in this case, that the trial court may not be the Supreme Court.
The course of the prosecution
The respondents were charged on information filed by the Commonwealth DPP in the South Australian District Court on nine counts of defrauding the Commonwealth in relation to income tax contrary to ss 29D and 5 of the Crimes Act 1914 (Cth) ("the Crimes Act")[18]. These were indictable offences. The respondents were arraigned in the District Court and pleaded not guilty to each of the charges. The District Court was exercising federal jurisdiction conferred by s 68(2) of the Judiciary Act. Those pleas having been entered, s 284(1) of the Consolidation Act required the District Court to proceed to the trial of the respondents.
[18]Section 5 since has been repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth), Sched 51, Item 4; s 29D was repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth), Sched 2, Pt 1, Item 149.

The laws of evidence applicable were those in force in South Australia; they were "picked up" by the reference in s 68(1) of the Judiciary Act to "procedure" or by the specific reference to "the laws relating to … evidence" in s 79. The Evidence Act 1995 (Cth), by reason of the limited operation given it by s 4 thereof, did not apply.
Rule 9.01 of the District Court Rules 1992 (SA) provided for applications by persons including the respondents to raise questions respecting the admissibility of evidence "prior to the opening of the case for the prosecution or the calling of witnesses". Section 285A of the Consolidation Act provided for a court to determine such questions before the jury was empanelled.
The respondents objected to the reception into evidence of certain documents obtained by police, on the footing that the police officer who executed the search warrant in question had no power to hold or execute such a warrant. Evidence going to these issues was received on the voir dire and the judge proceeded to deal with the respondents' objections. Anderson DCJ did so before any empanelling of a jury. His Honour ruled that certain evidence was obtained unlawfully and, in the exercise of the court's discretion, should be excluded. He published reasons for so ruling. Without that evidence, the prosecution case is doomed to fail.
The Full Court
Thereafter, on an application of the Commonwealth DPP, the Full Court (Olsson and Mullighan JJ; Nyland J dissenting)[19] ordered that the trial judge be directed to reserve certain questions of law for consideration by the Full Court. The Full Court delivered its reasons for judgment on 2 September 1999. On 29 May 2000, after further steps which it is not necessary to narrate, save to say that on 18 May 2000 the Full Court (Doyle CJ, Duggan and Lander JJ) amended the order of 2 September 1999, the District Court judge stated a case reserving five questions for consideration of the Full Court. A five member Full Court heard argument on issues raised by the respondents respecting the jurisdiction of the Full Court to entertain the questions reserved. By majority (Doyle CJ, Prior, Duggan and Lander JJ; Bleby J dissenting), the Full Court held that it lacked jurisdiction to hear and determine the questions reserved by the District Court judge[20]. The leading judgment in the majority was delivered by Doyle CJ. Prior J agreed with the Chief Justice; Duggan J and Lander J also agreed and added reasons of their own.
[19]Gee and Thaller (1999) 110 A Crim R 1.
[20]R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295.
The majority founded its decision upon the construction of s 68(2) of the Judiciary Act when read with other provisions of that statute. The reasoning in earlier decisions in South Australia and Queensland[21] which pointed to the contrary result was not accepted as meeting the points of construction which were now determinative.
[21]Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Cook; Ex parte Director of Public Prosecutions (Cth) [1996] 2 Qd R 283.
The order of the Full Court was that, in respect of each of the questions reserved by the District Court judge, the Full Court declined to answer on the ground that it lacked jurisdiction to deal with the questions reserved. It is from this order that the present appeal is brought to this Court. Notice was given under s 78B of the Judiciary Act. The Attorney-General for South Australia intervened in support of the appellant. The Commonwealth Attorney-General did not intervene.
The appeal is brought in the name of the Queen, but it is accepted that it is conducted, as were the proceedings below, by the Commonwealth DPP in the name of the Queen. The source of that authority appears to be found in a combination of s 6(1)(a), s 9(1) and s 9(7) of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act"). The Commonwealth DPP seeks an order setting aside the orders made by the Full Court and remitting the matter to the Full Court for determination of the questions reserved.
The issues
The Commonwealth DPP seeks to refute the reasoning of the Full Court respecting s 68(2) of the Judiciary Act, and also, further or in the alternative, to rely on the conferral of jurisdiction by s 39(2) of that statute. The respondents meet those submissions and also by Notice of Contention seek to uphold the Full Court order on additional grounds. One concerns the empowerment of the Commonwealth DPP under the DPP Act. Another is that the trial of the respondents had not commenced when the Full Court ordered Anderson DCJ to reserve the relevant questions of law; the result is said to be that, for this reason alone, s 68(2) was not attracted. The respondents also renewed some subsidiary arguments which may be considered in the course of dealing with the primary issues.
It is convenient to put s 39(2) to one side and to deal first with the issues concerning s 68(2) and its operation with respect to s 350 of the Consolidation Act.
Section 68(2) of the Judiciary Act and s 350 of the Consolidation Act
Two points first should be made. The first is that s 350 of the Consolidation Act is so drawn that the trial court which reserves questions for the Full Court may be a State court other than the Supreme Court. The second concerns the term "matter", particularly as it appears in s 77(iii) of the Constitution, dealing with the investing of State courts with federal jurisdiction. It is established by authority that a single "matter" can proceed through more than one court of a State. In R v Murphy[22], committal proceedings in one court and the trial of an indictable offence in another court (there having been an order for committal and presentation of the indictment) were held to be the curial process for the determination of a single "matter". That was the "matter" which the trial ultimately would determine, namely, in that case and in this case, charges of offences against the Crimes Act. This reasoning was applied, with respect to civil jurisdiction, in Re Wakim; Ex parte McNally[23].
[22](1985) 158 CLR 596 at 614, 617‑618.
[23](1999) 198 CLR 511 at 540 [3], 546 [26], 585 [138]. See also Macleod v Australian Securities and Investments Commission (2002) 76 ALJR 1445 at 1447 [8]; 191 ALR 543 at 546.
Within the meaning of the opening passage in s 68(2) of the Judiciary Act, the South Australian Full Court, when determining questions of law respecting State law reserved for its consideration by a trial court, being a court other than the Supreme Court, nevertheless is "exercising jurisdiction with respect to … the trial and conviction on indictment … of … persons charged with offences against the laws of the State" (emphasis added). That being so, the Full Court, subject to s 68 itself and to s 80 of the Constitution, has "the like jurisdiction" in "matters" which are "with respect to persons who are charged with offences against the laws of the Commonwealth".
The expressions in s 68(2) "with respect to" and "the like jurisdiction" are of wide import. In Solomons v District Court of New South Wales[24], McHugh J said that in s 68(2):
"'like jurisdiction' is the authority to decide 'matters'[25] arising under federal laws in a manner similar to the authority of the court to decide matters arising under State law after allowance is made for the fact that the State jurisdiction arises under State law and federal jurisdiction arises under federal law[26]".
[24](2002) 76 ALJR 1601 at 1609 [41]; 192 ALR 217 at 228.
[25]Constitution, ss 75, 76, 77(iii).
[26]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142 per Isaacs J.
Where the trial court is invested with federal jurisdiction, as with the District Court here, it need not be the only State court which is invested with federal jurisdiction in that "matter" which arises under federal law. As was illustrated in Murphy[27], s 68(2) may operate to invest federal jurisdiction in those State courts which together, under the existing State court structure, exercise "like jurisdiction" with respect to matters arising under State law.
[27](1985) 158 CLR 596 at 614, 617‑618.
Finally, the determination, before the conclusion of a trial, of a challenge to rulings excluding evidence is, within the meaning of s 68(2), the exercise of jurisdiction "with respect to" that trial.
The respondents submit that, contrary to a precondition to the operation of s 68(2), at the stage, before a jury had been empanelled, when Anderson DCJ reserved the questions of law for the Full Court and the Full Court became engaged in the matter, the District Court had not begun to exercise jurisdiction "with respect to … the trial and conviction on indictment" of the respondents. That submission is to be rejected.
In B[28], Gaudron, Gummow and Hayne JJ said:
"It may be that the answer to the question – when does the trial begin – requires consideration of the context within which that question arises[29] and does not admit of an answer of the generality given in Attorney-General's Reference No 1 of 1988[30]. We need not decide if that is so."
In the decision referred to, King CJ had held[31]:
"In this State, therefore, the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."
[28](1998) 194 CLR 566 at 578 [17].
[29]cf R v Howard (1992) 29 NSWLR 242 at 246‑250; R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Symons [1981] VR 297; R v Talia [1996] 1 VR 462 at 470‑476.
[30](1988) 49 SASR 1.
[31](1988) 49 SASR 1 at 5‑6.
Those criteria were met in the present case, there having been arraignment[32] and determination by the judge of preliminary questions. The phrase "the trial and conviction on indictment" follows in s 68(2) upon "the examination and commitment for trial on indictment". Supervening executive and non‑judicial acts aside, this indicates a curial continuity without fragmentation of federal jurisdiction. The description given by King CJ with respect to South Australia is at least wide enough to indicate the commencing point of the "trial" referred to in s 68(2). It is unnecessary to determine whether in s 68(2) the term "trial" has any still wider reach.
[32]Nothing turns upon the circumstance that the respondents had been arraigned before Anderson DCJ and their not guilty pleas taken on an occasion before the voir dire.
The respondents referred to the reservation in s 68(2) respecting s 80 of the Constitution. Nothing in s 80 forbids the taking of steps such as those taken here before empanelling of the jury.
The construction of s 68(2) given above should, in the absence of countervailing authority in this Court, be accepted. The consequence is that the Full Court erred in denying its competency to deal with the questions reserved.
The reasoning of the Full Court
The Full Court decided the matter upon a different perception of the issue of construction of s 68(2). Doyle CJ identified the issue as whether s 68(2)[33]:
"when it refers to and vests jurisdiction with respect to appeals, makes applicable to the present case the power under s 350 of the [Consolidation Act] to require a judge to reserve questions for consideration by the Full Court".
[33](2000) 79 SASR 295 at 297.
His Honour, with respect correctly, rejected the submission (apparently renewed in this Court) that, because s 350 authorised the giving by the Full Court of "advisory opinions", s 68(2) could not translate the State law into "matters" of federal jurisdiction. He did not agree that the Full Court would be determining in a hypothetical or abstract fashion the legal issues to which the ruling by the District Court judge had given rise. Doyle CJ said[34]:
"This Court is now asked, by case stated, to consider the correctness of that ruling, to pass upon its correctness, and has power to set the ruling aside and, possibly, to order that the application for exclusion of evidence be refused. At the least, this Court has power to answer the questions in a manner that will provide a basis for the [Commonwealth DPP] to request the trial judge to reconsider his rulings, and it seems to me that in that event the trial judge should do so. It would stultify the whole process if the trial judge were at liberty to disregard a decision by the Full Court that the trial judge's ruling was wrong."
That reasoning should be accepted. This case is not one which attracts the objections indicated in B[35] and Bass v Permanent Trustee Co Ltd[36] to some forms of questions presented by adoption of the case stated and like procedures.
[34](2000) 79 SASR 295 at 320.
[35](1998) 194 CLR 566 at 576 [12].
[36](1999) 198 CLR 334 at 354‑358 [43]-[54].
It should be added that, contrary to a further submission by the respondents, to accept that the trial judge would be bound by the answers given by the Full Court is not offensive to Ch III of the Constitution. The reason advanced by the respondents appeared to be concerned with the giving of directions as to the exercise of a judicial discretion. The submission may have been suggested by what was decided in Chu Kheng Lim v Minister for Immigration[37] respecting the invalidity of s 54R of the Migration Act 1958 (Cth). However, the concern there was with a direction given to the courts directly by the Parliament.
[37](1992) 176 CLR 1 at 35‑37, 52.
In the Full Court, Doyle CJ also concluded, with reference to the definition of "appeal" in s 2, that the proceeding before the Full Court was an "appeal" for the purposes of s 68(2) of the Judiciary Act, being a proceeding arising out of the trial or out of proceedings connected with the trial[38]. That view of the "matter" provided an alternative or cumulative source of the jurisdiction conferred by s 68(2). It should have resolved the objection to competency.
[38](2000) 79 SASR 295 at 319.
Nevertheless, the Full Court decided that it had not been invested with the necessary federal jurisdiction to deal with the questions reserved. Doyle CJ reached that conclusion in two steps[39]. The first was that the decision of this Court given 70 years ago in Seaegg v The King[40] required the Full Court to treat the general provision in s 39 of the Judiciary Act as not investing it with jurisdiction with respect to "appeals" in matters arising on the trial by indictment of an offence against the laws of the Commonwealth. The second was that s 68(2), even as amended after Seaegg by the 1932 amendment, did not invest the Full Court with the necessary federal jurisdiction; the general terms of s 68(2) in its amended form still required some contraction in their operation so as to allow for the specific provisions in Pt X Div 3 (ss 72‑77) of the Judiciary Act.
[39](2000) 79 SASR 295 at 312.
[40](1932) 48 CLR 251.
It is convenient to deal first with the second of these considerations. If now determined to be as the Commonwealth DPP would have it, the result would be to establish the foundation of jurisdiction in s 68(2) without the need to consider that additional or alternative source in s 39.
Part X, Div 3 of the Judiciary Act
Part X of the Judiciary Act has included ss 72‑77 since enactment of the statute in 1903. The sections were introduced by the heading "Appeal". The rendering of Pt X into divisions was later effected by the Statute Law Revision Act 1973 (Cth). Since their enactment, ss 72, 74 and 76 have been amended, but in immaterial respects[41].
[41]The Judiciary Act 1915 (Cth) amended s 72, the Judiciary Amendment Act (No 2) 1979 (Cth) amended ss 72 and 74 and the Law and Justice Legislation Amendment Act (No 2) 1994 (Cth) amended ss 72, 74 and 76.
Section 68 comprises Div 1 of Pt X. Division 3 of Pt X makes specific provision for the reservation of questions of law arising on the trial of a person for an indictable offence against the laws of the Commonwealth. In its discretion and without application by the accused person, the court may reserve any question of law before or after judgment; upon application made before verdict, s 72(1) states that the court "shall" reserve any question of law which arises at the trial. The reservation is "for the consideration of a Full Court of the High Court or if the trial was had in a Court of a State of a Full Court of the Supreme Court of the State". The words emphasised were added by s 4 of the Judiciary Act 1915 (Cth). The point of present significance is that Div 3 is so cast as not to provide for a procedure of the kind for which provision now is made by s 350 of the Consolidation Act.
Section 72 and the succeeding provisions were enacted at a time before the establishment in the States of Courts of Criminal Appeal. At the time of the enactment of the Judiciary Act, the laws of the States made various provisions for processes falling short of what now is understood as an appeal from conviction or sentence. For example, s 471(1) of the Crimes Act 1900 (NSW)[42] provided for the issue out of the Supreme Court on the application of the Crown or the prisoner, after cause shown, of a writ of error[43]. In that setting, s 77 of the Judiciary Act assumed a particular importance. It states:
"Except as aforesaid, and except in the case of error apparent on the face of the proceedings, an appeal shall not without the special leave of the High Court be brought to the High Court from a judgment or sentence pronounced on the trial of a person charged with an indictable offence against the laws of the Commonwealth."
[42]Repealed by s 23(2) of the Criminal Appeal Act 1912 (NSW).
[43]See Fleming v The Queen (1998) 197 CLR 250 at 257‑258 [16].
Further, after the establishment by statute of the State Courts of Criminal Appeal[44], appeals were brought to this Court, by special leave, on the footing that the legislation did not create or constitute new courts distinct from the Supreme Courts from which appeal lay pursuant to s 73(ii) of the Constitution[45]. In subsequent cases[46] in which applications were brought for special leave to appeal from decisions of Courts of Criminal Appeal exercising federal jurisdiction conferred by s 68(2) of the Judiciary Act, it appears that no objection to competency was taken that the Court of Criminal Appeal had lacked jurisdiction to deal with an appeal against conviction or sentence because the only available procedures were those specified in s 72 of the Judiciary Act. Consistently with that state of affairs, and notwithstanding some doubts as to the construction of s 72[47], from time to time this Court has entertained cases stated under s 72 of the Judiciary Act by trial judges. Examples are R v Sharkey[48] and R v Bull[49].
[44]South Australia is in a special position in this regard: Byrnes v The Queen (1999) 199 CLR 1 at 12‑13 [10].
[45]Stewart v The King (1921) 29 CLR 234 at 240; Byrnes v The Queen (1999) 199 CLR 1 at 12‑13 [10].
[46]For example, Peel v The Queen (1971) 125 CLR 447.
[47]R v Murphy (1985) 158 CLR 596 at 607‑608, 619‑620.
[48](1949) 79 CLR 121.
[49](1974) 131 CLR 203.
Peel v The Queen[50], to which reference has been made, was decided after the 1932 amendment. This Court held that s 68(2) did confer on the NSW Court of Criminal Appeal, in respect of appeals by the Commonwealth Attorney-General against sentence, a "like jurisdiction" to that conferred by State law in respect of appeals by the State Attorney-General. That outcome is inconsistent with the thrust of the submissions by the respondents as to the impact of the provisions of ss 72‑77 upon the construction of s 68(2).
Seaegg v The King[51]
[50](1971) 125 CLR 447.
[51](1932) 48 CLR 251.

Seaegg was decided before, and indeed provided the occasion for the making of, the 1932 amendment. The respondents submit that statements made in the joint judgment in Seaegg of Rich, Dixon, Evatt and McTiernan JJ[52] respecting Div 3 of Pt X of the Judiciary Act still retain their force for the application of s 68(2) (and s 39(2)) to the present case. Their Honours said[53]:
"[Sections] 72 to 77 of the [Judiciary Act] are headed 'Appeal', and contain a code of procedure for an appeal by way of case stated upon a point of law raised at the trial. These special provisions confer a different and narrower right of appeal and different but perhaps wider remedies." (emphasis added)
In considering the words in s 68(2) as it then stood "with respect to … the trial and conviction on indictment", their Honours said[54]:
"The words would not naturally be understood to refer to a jurisdiction to hear appeals from such convictions, and we think that the presence in the enactment of the special provisions contained in ss 72‑77 again operates to preclude such an interpretation. It follows that the Supreme Court was right in holding that the appellant could not appeal to it except under the provisions of s 72 of the [Judiciary Act]." (emphasis added)
[52](1932) 48 CLR 251 at 256‑257.
[53](1932) 48 CLR 251 at 256.
[54](1932) 48 CLR 251 at 257.
The use in the first of these passages of the term "a code of procedure" gives rise to some difficulty. The term "code" may be used in various senses. Used in respect of the Judiciary Act or any provision or group of provisions thereof, it cannot identify a law which restates or replaces the common law, such as the bills of exchange, sale of goods and partnership legislation enacted in the United Kingdom in the second half of the nineteenth century. For at least since the time fairly shortly after its enactment, the Judiciary Act has not been the only law of the Commonwealth made in exercise of its power in s 77(iii) of the Constitution to invest courts of the States with federal jurisdiction[55]. It is not a "code" in the sense of an exercise by the Parliament of the power in s 77(iii) which purports to be exhaustive.
[55]See Cowen, Federal Jurisdiction in Australia, 1st ed (1959) at 187‑193.
The term "code" also has been used to point out a particular characteristic with which the section or group of sections is endowed by the relevant statute. An example is the expression a "small self‑contained code" used in Parsons v BNM Laboratories Ltd[56] of ss 37 and 38 of the Finance Act 1960 (UK)[57]. In Seaegg the phrase "code of procedure" appears to be used in respect of ss 72‑77 to "preclude" what otherwise might be the operation of a more generally expressed provision in the same statute.
[56][1964] 1 QB 95 at 119.
[57]See also Briers v Atlas Tiles Ltd [1978] VR 151 at 168.
In construing the provisions of the Judiciary Act as it now stands, effect no longer should be given to those statements in Seaegg. This is so for several reasons. First, s 68(2) itself has been significantly amended by the 1932 amendment thereby bringing it into a changed relationship with ss 72‑77. Secondly, within the one statute, its various provisions, if it be possible, are to be given "a construction that will render them harmonious". That was how Gibbs J put the matter in Ross v The Queen[58] in considering provisions of the Criminal Code (Q). That attainment of harmony is not to be achieved by the adoption of notions respecting inconsistency between the several statutes of the one legislature[59] or respecting amendment and repeal[60].
[58](1979) 141 CLR 432 at 440.
[59]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 351 [30].
[60]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 353‑354 [9], 375‑376 [67]-[69].
Thirdly, some useful analogy is provided by the reasoning in cases such as Deputy Commissioner of Taxation v Moorebank Pty Ltd[61]. Provisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert a provision of State law into a Commonwealth legislative scheme which is "complete upon its face" where, on their proper construction, those federal provisions can "be seen to have left no room" for the picking up of State law[62]. The inclusion in s 68(2) of provisions respecting appeals by the 1932 amendment had the result that, if for no other reason, ss 72‑77 were not on their face a complete legislative scheme with respect to processes of an appellate nature, leaving no room for State laws to be picked up by s 68(2).
[61](1988) 165 CLR 55 at 64. See also Northern Territory v GPAO (1999) 196 CLR 553 at 576 [38]; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 351 [30].
[62]Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 64.
Fourthly, as the reference to Moorebank indicates, since Seaegg, the decisions of the Court have manifested developments in the approach to be taken to those ambulatory provisions of the Judiciary Act which "pick up" State law as it exists from time to time. Part X of the Judiciary Act (ss 68‑77) is headed "CRIMINAL JURISDICTION". Of that Part, Mason J said in R v Loewenthal; Ex parte Blacklock[63]:
"[Part] X of the [Judiciary] Act provided a solution to the difficulties arising from a duality of jurisdiction by applying to criminal cases heard by State courts in federal jurisdiction the laws and procedure applicable in the State (s 68). The purpose of the section was, so far as possible, to enable State courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system."
Indeed, shortly after the 1932 amendment, Dixon J said of the "general policy disclosed by [s 68(2)]" that it was[64]:
"to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice".
The result is that, subject to the imperatives of s 80 of the Constitution, the course taken at trial of an offence against the laws of the Commonwealth may vary from State to State (and, given the terms of s 68, from Territory to Territory). The policy of which Dixon J spoke in Williams v The King [No 2] has been given legislative preference to a consideration that federal law always should have a uniform operation throughout the Commonwealth.
[63](1974) 131 CLR 338 at 345.
[64]Williams v The King [No 2] (1934) 50 CLR 551 at 560.
Moreover, it was decided in Leeth v The Commonwealth[65] that that exercise of legislative choice manifested in provisions such as s 68(2) violates no constitutional imperative. In their joint judgment in that case, Mason CJ, Dawson and McHugh JJ, after referring to the statement by Dixon J in Williams[66] set out above, proceeded[67]:
"Thus the administration of the criminal law of the Commonwealth is organized upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried."
[65](1992) 174 CLR 455.
[66](1934) 50 CLR 551 at 560.
[67](1992) 174 CLR 455 at 467.
The relationship between s 68(2) and ss 72‑77
With these considerations in mind, there is no difficulty in giving to Pt X of the Judiciary Act, including s 68(2) and ss 72‑77, the harmonious operation of which Gibbs J spoke in Ross[68].
[68](1979) 141 CLR 432 at 440.
Division 3 of Pt X supplements the conferral of jurisdiction in Div 1 (s 68). If the procedures which s 72 provides are utilised and the presiding judge signs a case stating the question of law reserved for the "Full Court of the Supreme Court of the State" spoken of in s 72(1), the Full Court is invested with federal jurisdiction to hear and determine, in accordance with ss 73 and 74, the question reserved. Section 15C of the Acts Interpretation Act 1901 (Cth) makes clear the investment of federal jurisdiction in the Full Court. As presently relevant, it enacts that where a provision of a statute "whether expressly or by implication" authorises a criminal proceeding to be instituted in a particular court in relation to a matter, that provision shall be deemed to vest that court with jurisdiction in that matter. That grant of jurisdiction operates by the further grant to that made in criminal cases by s 68(2)[69]. It is unnecessary to determine the extent to which those two grants of jurisdiction operate cumulatively or alternatively to the general grant in s 39(2). Somewhat differing views on that matter were expressed in R v Bull[70]. Subsequently, in Brown v The Queen, Brennan J said[71]:
"Jurisdiction to try persons charged on indictment with federal offences is conferred on State courts by s 68(2) of the [Judiciary Act] and by s 39(2) of that Act so far as the general provisions of s 39(2) are not inconsistent with the more particular provisions of s 68(2): Adams v Cleeve[72]; R v Bull[73]. We need not consider the general provisions of s 39(2) in the present case; it is sufficient to consider the more particular provisions of s 68(2)."
[69]cf R v Bull (1974) 131 CLR 203 at 258.
[70](1974) 131 CLR 203 at 233‑234, 245, 257‑259, 272‑273, 275.
[71](1986) 160 CLR 171 at 197.
[72](1935) 53 CLR 185 at 190‑191.
[73](1974) 131 CLR 203 at 233‑234, 258‑259, 275.
In Bull, Mason J observed[74] that that case was not the occasion to undertake an exposition of the precise relationship between s 39(2) and s 68(2) of the Judiciary Act. The same is true now. However, it should be observed that since the decision in Bull, s 39A was inserted by the Judiciary Act 1968 (Cth). Among other things, s 39A(1) subjects the federal jurisdiction invested by a provision of the Judiciary Act other than s 39 to the conditions and restrictions now detailed in pars (a), (c) and (d) of s 39(2)[75]. Section 39A(2) states that nothing in s 39A or s 39 or any earlier statute prejudices the application of ss 72‑77 in relation to jurisdiction in respect of indictable offences.
[74](1974) 131 CLR 203 at 275. See also Macleod v Australian Securities and Investments Commission (2002) 76 ALJR 1445 at 1447 [8]-[10]; 191 ALR 543 at 546.
[75]See Cowen and Zines's Federal Jurisdiction in Australia, 3rd ed (2002) at 233. Paragraph (a) bars Privy Council appeals from a court of a State exercising federal jurisdiction conferred by s 39, par (c) bars any prohibition by State law upon the grant of special leave by the High Court and par (d) deals with the exercise of federal jurisdiction by State courts of summary jurisdiction. Paragraph (b) was repealed by s 8 of the Judiciary Amendment Act 1976 (Cth).

The powers of the Commonwealth DPP
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.
KIRBY J. 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.
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.
The Commonwealth DPP applied to the Full Court to direct Anderson DCJ to reserve certain questions for consideration by that Court. The application was made purportedly in reliance upon s 350 of the State Act. The respondents did not at first contest the jurisdiction of the Full Court to entertain the application. In September 1999, by majority[84], the Full Court ("the first Full Court") purported to require Anderson DCJ to reserve questions on a case stated for the opinion of the Full Court.
[84]Gee and Thaller (1999) 110 A Crim R 1: Olsson and Mulligan JJ; Nyland J dissenting.
It was at this point that the respondents raised the objections now before this Court. In November 1999, they applied to the Full Court to quash the decision of the first Full Court on the ground that it had been made without jurisdiction. Alternatively, they asked the Full Court to reopen the matter. The Full Court refused to do this. On 14 December 1999, in compliance with the order of the first Full Court, Anderson DCJ stated a case for the opinion of the Full Court.
An application for special leave to appeal against the orders of the first Full Court was refused by this Court. In May 2000 Anderson DCJ amended the stated case which was thus returned before the Full Court, differently constituted ("the second Full Court")[85]. The respondents advanced their challenge to the validity of the proceedings. That Court was then reconstituted to include five judges[86] to hear the respondents' challenge. It was this Full Court that in March 2001 concluded that it lacked jurisdiction to entertain the questions reserved. In accordance with its conclusion, the Court declined to answer the questions reserved[87].
[85]Doyle CJ, Duggan and Lander JJ.
[86]Because a question had arisen as to the correctness of the decision in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.
[87](2001) 79 SASR 295 at 321 [106].
The applicable legislation
Before turning to the reasons of the Full Court, and my own reasons, I must identify the State and federal laws the intersection of which ultimately determines the issues in this appeal.
The State Act was before this Court in Director of Public Prosecutions (SA) v B[88]. The provisions of the State Act for reserving questions of law arising on a criminal trial in South Australia were amended, in terms inapplicable to the information laid in that case[89]. However, those amendments introduced some of the provisions that now fall to be considered in this appeal.
[88](1998) 194 CLR 566.
[89]Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA). See Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at 572-573 [5], fn 31 and at 584-585 [41], fn 72.

Section 285A of the State Act provides that before the jury are empanelled, a court before which the accused is arraigned may hear and determine questions of law affecting the trial, including the admissibility of evidence[90]. Such a question must be one "affecting the conduct of the trial". Given the context, it is clear that the "trial" is defined broadly. The section itself contemplates that the question may arise "before the jury is empanelled".
[90]The section is set out in the reasons of Callinan J at [162].
The critical provisions of the State Act are found in s 350. As its terms are set out in other reasons, I will not repeat them[91]. Section 351 of the State Act provides for the statement of a case by the "trial judge"[92] and for the Full Court, if necessary, to refer the stated case back to the judge for amendment. By s 351A, the Full Court is empowered to determine a question "reserved under this Part and make consequential orders and directions". Specific provision is made concerning the setting aside of a conviction and the ordering of a new trial. However, if a defendant has been acquitted at trial "no determination or order of the Full Court can invalidate or otherwise affect the acquittal"[93].
[91]Reasons of Callinan J at [197]. See also the reasons of McHugh and Gummow JJ at [26].
[92]So described in the heading to s 351 of the State Act. In the section the judicial officer is described as the "presiding judge".
[93]State Act, s 351A(2)(c).
By s 352 of the State Act, provision is made for the "right of appeal in criminal cases"[94]. Provision is made for appeals "on an issue antecedent to trial" adverse to a party[95]. By s 352(2), where an appeal or application for leave to appeal is made to the Full Court under the section, that Court is empowered to require the court of trial to state a case on the questions raised in the appeal or proposed appeal. The matter must then be dealt with as if such questions had been reserved on a stated case.
[94]So described in the heading of the State Act, s 352 and in s 352(1) and (2).
[95]State Act, s 351(1)(b) and (c).
The provisions of the JA, relevant to these proceedings, are set out in other reasons[96]. Similarly, the terms of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act") are itemised and can be incorporated by reference[97].
[96]Reasons of Gleeson CJ at [4], reasons of McHugh and Gummow JJ at [22], reasons of Callinan J at [190]-[191].
[97]Reasons of Callinan J at [198].
The common references in s 68(1) and (2) of the JA to the "hearing and determination of appeals" were inserted by the Judiciary Act 1932 (Cth)[98]. That amendment was enacted to fill the gap identified by the decision of this Court in Seaegg v The King[99]. As originally enacted, the JA included ss 72-77 providing for "Appeal". The word "appeal" for the purposes of the JA is defined in s 2. By that section, unless the contrary intention appears, the word "appeal" in the JA "includes an application for a new trial and any proceeding to review or call in question the proceedings, decision or jurisdiction of any Court or Judge".
[98]Judiciary Act 1932 (Cth), s 2(a) and (b).
[99](1932) 48 CLR 251.
The provisions in the present Pt X Div 3 of the JA (ss 72-77) reflect the limited form of appeal in criminal jurisdiction that existed in Australia before and at the time of federation[100]. Prior to the enactment of the Criminal Appeal Act 1907 (UK), a general appeal in criminal proceedings, whether against conviction or sentence, was not available. The normal way of challenging a conviction was by writ of error brought on the fiat of the Attorney-General to reverse the judgment (or a like writ[101]) or by the reservation by the trial judge, during the trial, of questions of law that, after the verdict of the jury, formed the basis of a stated case which the judge could transmit to the judges of the Supreme Court in banc. They had the power to determine the question, to affirm, amend or reverse the judgment and arrest the same in a case where a substantial wrong or other miscarriage of justice was shown[102].
[100]See eg Administration of Criminal Law Act 1848 (Imp), s 2 (11 & 12 Vict c 78); Criminal Law Consolidation Act 1876 (SA), ss 397-400; Criminal Law Consolidation Act 1935 (SA), ss 350-351; Crimes Act 1900 (NSW), ss 470-475; Crimes Act 1890 (Vic), ss 481-485; Supreme Court Act 1890 (Vic), s 25; Crimes Act 1928 (Vic), ss 478-481, 593(a); Criminal Code Act 1899 (Q), ss 668B, 668C; Criminal Code Act 1902 (WA), ss 667-671; Criminal Law Procedure Act 1881 (Tas), ss 7-10.
[101]See eg Crimes Act 1900 (NSW), s 471.
[102]See eg Crimes Act 1900 (NSW), s 470; cf s 428.
At the time of federation, it was not uncommon for such procedures to be collected in colonial statutes under the heading of "appeals"[103]. These features of criminal "appeals" therefore existed at the time of the original passage of the JA in 1903. They explain the title ("Appeals") under which ss 72-77 of that Act still appear[104]. For the majority in the second Full Court, the continued presence of these sections was determinative.
[103]Such was the heading to Pt XIII Div D of the Crimes Act 1900 (NSW) repealed in 1912 with the enactment of the Criminal Appeal Act 1912 (NSW).
[104]These sections of the JA are set out in the reasons of Callinan J at [196].
The decision of the second Full Court
On the way to reaching the conclusion that it lacked jurisdiction to decide the case stated by Anderson DCJ, the second Full Court disposed of a number of arguments raised by the respondents. Thus, in answer to the contention that s 68(2) of the JA had not been engaged because the "trial" of the proceedings against the respondents had not commenced, the Full Court concluded that, to determine when a trial begins, it is necessary to have regard to the context for which the question must be answered[105]. On that basis, as the respondents had been arraigned in the District Court before the judge who was to conduct their trial, the question reserved was one arising out of the trial. Upon this point, there was no disagreement in the Full Court[106].
[105]Thaller and Gee (2001) 79 SASR 295 at 300-301 [31] referring to Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at 578 [17].
[106](2001) 79 SASR 295 at 299-301 [25]-[31], 318-319 [93]-[94] per Doyle CJ, 321 [107] per Prior J, 321 [108] per Duggan J, and at 328 [177] per Bleby J.
Another argument was based on the contention that the procedure for reserving questions of law under s 350 of the State Act, as it had been invoked, did not come within the meaning of the word "appeal" in s 68(2) of the JA. Lander J, one of the judges in the majority in the Full Court's disposition of the matter, did not consider that the procedure contemplated by the State Act was an "appeal" for the purposes of the JA[107]. However, all the other judges in the second Full Court[108], including the dissenting judge[109], reached the opposite conclusion. For them, the case stated procedure envisaged by s 350 of the State Act, although not an appeal as that word is now ordinarily used, sufficiently fell within the extended definition of "appeal" in the JA to attract s 68(2).
[107]In particular, his Honour did not consider that the procedure fell within the definition of "appeal" in JA, s 2: see (2001) 79 SASR 295 at 327-328 [170]-[174].
[108](2001) 79 SASR 295 at 319 [99] per Doyle CJ with whom Prior and Duggan JJ agreed.
[109](2001) 79 SASR 295 at 328 [178] per Bleby J.
A majority of the judges of the Full Court also rejected the respondents' argument that the review of the decision of Anderson DCJ, on the questions reserved, was a purely advisory or hypothetical exercise, such as could not be conferred on a court, including a State court, exercising federal jurisdiction. Their Honours accepted that, were it so, the attempted conferral of advisory jurisdiction would fail for constitutional reasons. However, they held that what the second Full Court was required to do, pursuant to the application before it, was part of "the ordinary administration of the law"[110]. The trial judge would be obliged, in disposing of the trial, to follow the answers given by the Full Court on any application to reconsider his evidentiary rulings. On that basis a majority decided that the Full Court's jurisdiction was not advisory[111].
[110]Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 305.
[111](2001) 79 SASR 295 at 319-320 [98]-[99], 320 [103] per Doyle CJ (Prior and Duggan JJ agreeing).
The same majority rejected an argument that the Commonwealth DPP lacked power, pursuant to his own Act[112], to ask the trial judge to reserve a question of law, or to apply to the Full Court to request such a reservation, relying upon s 350 of the State Act[113]. They held that there was no reason to read the reference to rights of "appeal" more narrowly in the DPP Act than in the JA.
[112]Director of Public Prosecutions Act 1983 (Cth), s 9(7) ("the DPP Act").
[113](2001) 79 SASR 295 at 320-321 [105] per Doyle CJ; 321 [107] per Prior J; 321 [108] per Duggan J.
Having reached these conclusions, the majority of the Full Court struck the obstacle that was regarded as fatal to the purported reference of questions to that Court. Three judges in the majority (Doyle CJ, Prior and Duggan JJ), rejected the construction of "appeal" in s 68(2) advanced by the Commonwealth DPP. They did so because of the express provisions for "appeals" by way of a stated case in ss 72-77 of the JA.
Doyle CJ, who expressed the reasons for the majority's conclusion in this regard, was driven to his opinion by his view concerning the operation of the latter provisions in the context of the JA and by a number of related historical considerations. Such considerations included the fact that, when the word "appeal" was inserted in s 68(2) in 1932, there were no State legislative provisions conferring jurisdiction on State courts similar to those now contained in s 350 of the State Act[114]. Further, when it inserted the word "appeal" in s 68(2) of the JA the Federal Parliament did not repeal, but left standing, ss 72-77[115]. Having provided expressly by federal law for a case stated procedure, there was neither need nor occasion for the JA to adopt a State procedure for stating cases that overlapped with the provisions of the JA that the Federal Parliament had left standing[116].
[114](2001) 79 SASR 295 at 312-313 [69]-[70] per Doyle CJ.
[115](2001) 79 SASR 295 at 314 [75]. There have been minor though immaterial amendments to those provisions of the JA.
[116](2001) 79 SASR 295 at 315 [80]-[82].
In his dissenting reasons, Bleby J reached the opposite conclusion on this point. He regarded ss 72-77 as providing a "fundamental guarantee, whatever restrictions may be placed on appeals or reviews by State legislation"[117]. Accordingly, he did not consider that the broad definition of "appeal" in s 2 of the JA should be read down to reflect a contrary intention in that Act, read as a whole[118]. On that footing, Bleby J concluded that s 68(2) could pick up the State Act provisions. In his view, the procedure could properly be characterised as an "appeal". The sub-section therefore conferred on the State courts "the like jurisdiction with respect to persons who are charged" with federal offences.
[117](2001) 79 SASR 295 at 330 [185].
[118](2001) 79 SASR 295 at 329-330 [185]-[186].
The respondents supported the conclusions of the majority in the Full Court. They also filed a notice of contention. This contested the existence of an "appeal" within the JA; asserted that the purported "appeal" amounted to an advisory opinion forbidden by the Constitution and repeated the argument concerning the want of power of the Commonwealth DPP to prosecute his application to the Full Court. The Commonwealth DPP submitted that the conclusions of Bleby J were correct.
The basic problem, two questions and five issues
The problem:It would have been possible for the Constitution to have established a single national judicial system, with courts having jurisdiction to apply both federal and State laws. Instead, it provided for separate systems of federal and State courts.
The inventive provision[119] by which federal law could provide for "investing any court of a State with federal jurisdiction" has been held to exclude reciprocal measures by State law[120]. Provided there is a foundation in its legislative powers, the Federal Parliament can enact laws to govern the exercise of federal jurisdiction, both at first instance and on appeal[121]. However, such laws must conform to the rule obliging the Commonwealth to accept State courts as it finds them[122]. In the present case, the Federal Parliament could have enacted specific laws permitting State courts exercising federal jurisdiction to reserve questions for the determination by a Full Court on matters arising before the commencement of a criminal trial. Such laws could have allowed the Commonwealth DPP to secure review by a Full Court of a decision at first instance. Such a federal law would have uniform application throughout the Commonwealth to all persons charged with offences against a law of the Commonwealth. Any such provision would be subject to the requirements of s 80 of the Constitution[123].
[119]Constitution, s 77(iii).
[120]Re Wakim; Ex parte McNally (1999) 198 CLR 511; cf Gould v Brown (1998) 193 CLR 346.
[121]Ah Yick v Lehmert (1905) 2 CLR 593 at 603-605.
[122]Le Mesurier v Connor (1929) 42 CLR 481 at 496, 498; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; Russell v Russell (1976) 134 CLR 495; cf Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142-1145; Lorenzo v Carey (1921) 29 CLR 243 at 251-253; Solomons v District Court of New South Wales (2002) 76 ALJR 1601 at 1615 [71]; 192 ALR 217 at 235-236.
[123]See Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278.
Because there is no specific federal law to sustain the proceedings that the Commonwealth DPP has brought to the Full Court, it is necessary to decide whether the relevant State laws are picked up by the general provisions of the JA to invest that Court with federal jurisdiction. The State laws, on their own, cannot achieve this result. It is not competent for the State Parliament, by its law, to control and regulate the exercise of federal jurisdiction. A similar issue arises in relation to the exercise of his federal powers by the Commonwealth DPP. This follows as a matter of statutory construction. The references in the State Act to the "court" and "Full Court" must be read as limited to such bodies exercising State jurisdiction. The reference in the State Act to the "Director of Public Prosecutions"[124] would likewise be interpreted to refer only to the State office holder of that name. However the problem lies deeper. Without consent by federal law, State lawmakers enjoy no power to regulate federal concerns or the conduct of federal office holders.
[124]State Act, s 352(1)(a), (ab), (b).
It was to solve such problems that the JA provided, in a number of sections, for the investment of federal jurisdiction in State courts[125] and the application of State laws to the exercise of such jurisdiction[126]. Necessarily, such provisions, expressed in general terms, present controversies at the margins concerning whether, in the particular case, a State court has "like jurisdiction" with respect to persons charged with federal offences[127]. Similarly, questions can arise as to whether State laws are applicable to the particular case. Because the application of such provisions involves a measure of adaptation proceeding through reasoning by analogy[128], it is inevitable that, in particular cases, different minds will reach different conclusions. The duty of this Court is not simply to solve each such problem as it arises. It is to do so according to clear and consistent principles.
[125]JA, ss 39, 68.
[126]JA, ss 68(1), 79, 80, 80A.
[127]JA, s 68(2).
[128]Williams [No 2] (1934) 50 CLR 551 at 561 per Dixon J.
Two questions:There are two questions that need to be answered. The first (which was determinative for the Full Court) is whether the JA[129] invested the Full Court with federal jurisdiction to require Anderson DCJ, pursuant to the State Act so applied, to reserve a relevant question[130] and thereafter to consider and determine that question[131].
[129]Either by virtue of s 68(2) or s 39(2) of the JA.
[130]State Act, s 350(a1) and (2).
[131]State Act, s 351A(1).
Secondly, assuming that question is answered favourably to the Commonwealth DPP, a further question is raised by the notice of contention filed by the respondent, Mr Gee. This concerns whether the Commonwealth DPP had any such right of "appeal" under the DPP Act enumerating his powers, when that law is read together with the State Act and the JA.
The issues:The arguments addressed to these two questions were fleshed out to present five issues for the decision of this Court.
§The appeal issue: Whether by force of s 68(2), read with s 2, of the JA, the State Act was engaged so that it applied to State courts exercising federal jurisdiction.
§The stated case issue: Whether, having regard to the provisions in Pt X Div 3 of the JA, the subject matter of "appeal" by reservation of questions in a stated case had been expressly covered by the JA, so as to make it clear that the general provisions of that Act did not confer on State courts exercising federal jurisdiction the jurisdiction to reserve and determine questions in accordance with the State Act.
§The trial issue: Whether, having regard to s 80 of the Constitution, whereby the "trial" on indictment of an offence against federal law must be by jury, the application to such a trial of provisions of the State Act allowing for interlocutory appeals was forbidden.
§The advisory opinion issue: Whether the exercise of the Full Court's power to determine the reserved questions under the State Act amounted to the provision of an advisory opinion, forbidden to that Court when exercising federal jurisdiction.
§The Cth DPP power issue: Whether, having regard to the federal legislation conferring his powers, the Commonwealth DPP had the authority to invoke the jurisdiction conferred on the Full Court under the State Act.
The case stated was an appeal within federal law
The respondents' arguments: The respondents' first argument was that the JA was not engaged in their case to confer jurisdiction on the Full Court either to require the reservation of questions or to hear and determine such questions under the State Act. They contested the proposition that the general language of s 39(2) of the JA picked up such an exceptional State procedure. They also submitted that the particular language of s 68(2) of the JA, in respect of criminal jurisdiction, was only engaged to confer a "like jurisdiction" where federal jurisdiction was being exercised.
Primarily, the respondents' submission on this point involved arguments of statutory construction. They submitted that the provisions of the State Act governing the reservation of questions for the Full Court, and the determination of such questions by that court, did not constitute "laws of the State … with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith" within s 68(2) of the JA. The respondents argued that the word "appeals", where used in that sub-section, did not extend to the kind of procedure permitted by the State Act. Even if it did, such procedures did not fall within the adjectival clause in their case. This was because the respondents had not been "convicted" nor had their "trial" commenced. As a matter of construction, therefore, the proceedings before the Full Court did not "arise out of" a trial nor "out of any proceedings connected" with it.

Several things may be noted about this section. It is expressed in comprehensive terms, implying thereby an intention to "pick up" as comprehensively as possible State procedural laws. At first sight there appears to be no textual impediment to regarding the State procedure adopted here as being other than, at least, the hearing of an appeal arising out of a proceeding connected with a trial.
As will appear, further examination of the Federal Act serves to confirm that first impression.
It is unnecessary to set out s 69 of the Federal Act other than sub‑ss (1), (2) and (2A):
"(1)Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf.
(2)Any such appointment shall be by commission in the Queen's name, and may extend to the whole Commonwealth or to any State or part of the Commonwealth.
(2A)Nothing in subsection (1):
(a)affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name; or
(b)affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;
indictable offences against the laws of the Commonwealth."
Division 3 of Pt X (ss 72-77) of the Federal Act is headed "Appeals". It provides for a form of reservation of questions of law typical of the procedures available for challenging legal error in criminal matters before the enactment of provisions for a general right of appeal in the United Kingdom and this country in and after 1907.
The Division states:
"72     Reservation of points of law
(1)When any person is indicted for an indictable offence against the laws of the Commonwealth, the Court before which he or she is tried shall on the application by or on behalf of the accused person made before verdict, and may in its discretion either before or after judgment without such application, reserve any question of law which arises on the trial for the consideration of a Full Court of the High Court or if the trial was had in a Court of a State of a Full Court of the Supreme Court of the State.
(2)If the accused person is convicted, and a question of law has been so reserved before judgment, the Court before which he or she was tried may either pronounce judgment on the conviction and respite execution of the judgment, or postpone the judgment until the question has been considered and decided, and may either commit the person convicted to prison or admit him or her to bail on recognizance with or without sureties, and in such sum as the Court thinks fit, conditioned to appear at such time and place as the Court directs and to render himself or herself in execution or to receive judgment as the case may be.
(3)The presiding judge is thereupon required to state in a case signed by him or her the question of law so reserved with the special circumstances upon which it arose, and if it be reserved for the High Court the case shall be transmitted to the Registry of the High Court.
73       Hearing
Any question so reserved shall be heard and determined after argument by and on behalf of the Crown and the convicted person or persons if they desire that the question shall be argued, and the Court may:
(a)affirm the judgment given at the trial; or
(b)set aside the verdict and judgment and order a verdict of not guilty or other appropriate verdict to be entered; or
(c)arrest the judgment; or
(d)amend the judgment; or
(e)order a new trial; or
(f)make such other order as justice requires;
or the Court may send the case back to be amended or restated.
74       Effect of order of Full Court
(1)The proper officer of the Court by which the question reserved was determined shall certify the judgment of the Court under his or her hand and the seal of the Court to the proper officer of the Court in which the trial was had, who shall enter the same on the original record.
(2)If the convicted person is in custody, the proper officer of the Court by which the question reserved was determined shall also forthwith transmit another certificate of the same tenor under his or her hand and the seal of the Court to the superintendent of the prison or other person who has the custody of the convicted person. The certificate shall be a sufficient warrant to all persons for the execution of the judgment if it is certified to have been affirmed or as it is certified to be amended, and execution shall thereupon be executed upon the judgment as affirmed or amended: And if the judgment is set aside or arrested the certificate shall be a sufficient warrant for the discharge of the convicted person from further imprisonment under that judgment, and in that case the superintendent is required forthwith to discharge him or her from imprisonment under that judgment, and if he or she is at large on bail the recognizance of bail shall be vacated at the next criminal sitting of the Court in which the trial was had: And if that Court is directed to pronounce judgment, judgment shall be pronounced at the next criminal sitting of the Court at which the convicted person appears to receive judgment.
75       Certain errors not to avoid conviction
A conviction cannot be set aside upon the ground of the improper admission of evidence if it appears to the Court that the evidence was merely of a formal character or not material, nor upon the ground of the improper admission of evidence adduced for the defence.
76       Appeal from arrest of judgment
(1)When the Court before which an accused person is convicted on indictment for an offence against the laws of the Commonwealth arrests judgment at the trial, the Court shall on the application of counsel for the prosecution state a case for the consideration of a Full Court of the High Court or a Full Court of the Supreme Court of the State in manner hereinbefore provided.
(2)On the hearing of the case the Full Court may affirm or reverse the order arresting judgment. If the order is reversed the Court shall direct that judgment be pronounced upon the offender, and he or she shall be ordered to appear at such time and place as the Court directs to receive judgment, and any Justice of the Peace may issue his or her warrant for the arrest of the offender.
(3)An offender so arrested may be admitted to bail by order of the Court which may be made in Court or in Chambers, at the time when the order directing judgment to be pronounced is made or afterwards.
77       No other appeal
Except as aforesaid, and except in the case of error apparent on the face of the proceedings, an appeal shall not without the special leave of the High Court be brought to the High Court from a judgment or sentence pronounced on the trial of a person charged with an indictable offence against the laws of the Commonwealth."
It is convenient at this point to set out s 350 of the State Act:
"Reservation of relevant questions
350 (a1) In this section -
'relevant question' means -
(a)a question of law; or
(b)to the extent that it does not constitute a question of law - a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(1)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue -
(a)antecedent to trial; or
(b)relevant to the trial or sentencing of the defendant, and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(2)A relevant question must be reserved for consideration and determination by the Full Court if -
(a)the Full Court so requires (on an application under this section or under another provision of this Part 1 [s 352(2)]); or
(b)the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court.
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4)If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the court of trial or the Supreme Court may release the person on bail on conditions the court considers appropriate."
By reason of its relevance to other issues raised by the respondents I also set out s 9 of the Director of Public Prosecutions Act 1983 (Cth) (the "Director's Act") as in force at the relevant time[207]:
[207]Section 9(8A) was repealed by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth).
"Powers of Director
(1)For the purposes of the performance of his or her functions, the Director may prosecute by indictment in his or her official name indictable offences against the laws of the Commonwealth, but nothing in this subsection prevents the Director from prosecuting an offence against a law of the Commonwealth in any other manner.
(2)Where the Director institutes a prosecution on indictment for an offence against a law of the Commonwealth, the indictment shall be signed:
(a)      by the Director; or
(b)for and on behalf of the Director, by a person authorized by the Director, by instrument in writing, to sign indictments.
(3)For the purposes of the performance of his or her functions, the Director may take over a prosecution on indictment for an offence against a law of the Commonwealth, being a prosecution instituted by another person (other than the Attorney-General or a Special Prosecutor).
(3A)Where a person holding office as a Special Prosecutor under the Special Prosecutors Act 1982 dies, or ceases for any reason so to hold office and is not forthwith re-appointed, the Director may, for the purposes of the performance of the Director’s functions, take over a prosecution on indictment for an offence against a law of the Commonwealth, being a prosecution that:
(a)      was instituted; or
(b)was, at the time when the person died or ceased so to hold office, being carried on;
by the person, or by a person acting as a Special Prosecutor under that Act in the place of the first-mentioned person.
(4)      Where:
(a)a person is under commitment, or has been indicted, on a charge of an indictable offence against a law of the Commonwealth; and
(b)the prosecution for the offence was instituted, has been taken over or is being carried on by the Director;
the Director may decline to proceed further in the prosecution and may, if the person is in custody, by warrant signed by the Director, direct the discharge of the person from custody, and where such a direction is given, the person shall be discharged accordingly.
(5)For the purposes of the performance of his or her functions, the Director may take over a proceeding that was instituted or is being carried on by another person, being a proceeding:
(a)for the commitment of a person for trial in respect of an indictable offence against a law of the Commonwealth; or
(b)for the summary conviction of a person in respect of an offence against a law of the Commonwealth;
and where the Director takes over such a proceeding, he or she may decline to carry it on further.
(5A)Where the Director is carrying on a proceeding instituted by another person, being a proceeding of the kind mentioned in paragraph (5)(a) or (b), the Director may decline to carry it on further even if the Director has not taken it over under subsection (5).
…
(7)Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director 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.
(8)Nothing in subsection (7) prevents the exercise by the Attorney‑General of a right of appeal that, but for that subsection, would be exercisable by the Attorney-General.
(8A)    In subsections (7) and (8):
'right of appeal' includes a right:
(a)      to apply for a review or rehearing; or
(b)to institute a proceeding in the nature of an appeal or of an application for a review or rehearing.
(9)For the purposes of the performance of the function referred to in paragraph 6(1)(g), the Director may institute, in the name of the Commonwealth or of an authority of the Commonwealth, proceedings for the recovery of a pecuniary penalty under a law of the Commonwealth.
(10)For the purposes of the performance of a function referred to in paragraph 6(1)(fa) or (h), the Director may take, in the name of the Commonwealth or of an authority of the Commonwealth, civil remedies on behalf of the Commonwealth or of that authority, as the case may be.
(11)Where an authority of the Commonwealth is a party to a proceeding in respect of a matter:
(a)that has arisen out of or is connected with the performance of any of the functions of the Director; or
(b)that may result in the performance by the Director of such a function;
the Director, or a person who is entitled to represent the Director in proceedings referred to in subsection 15(1), may act as counsel or solicitor for that authority."
The respondents, as did the Full Court, relied upon the description in Adams v Cleeve[208] by Rich, Dixon and Evatt JJ, of ss 72-77 of the Federal Act as a "code of procedure" and contended that those sections were exhaustive. This was the nub of the respondents' argument. They also pointed to the degree of overlap between ss 72-77 of the Federal Act and s 350(a1) of the State Act which was not confined in its operation to the sort of situation which exists here, of a preliminary ruling on a point of evidence. They emphasised that, notwithstanding Seaegg and the amendment to the Federal Act which followed, and the enactment of the various provisions in the States for general rights of appeal, ss 72-77 of the Federal Act have remained in force and have not been materially amended.
[208](1935) 53 CLR 185 at 190-191.
The appellant sought to explain any abstention from amending or repealing ss 72-77 on these bases: that the amendment to s 68(2) was a pragmatic response to Seaegg; that the provisions in the Federal Act with respect to appeals were left as minimum appeal rights; and ss 72-77 to continue to allow for a case to be stated directly from a State Supreme Court to the High Court[209]; and they make provision for a Justice of the High Court conducting a trial[210], or the trial judge of any other federal court with jurisdiction to hear indictable offences against the laws of the Commonwealth, to reserve questions of law for the consideration of the Full Court of the High Court.
[209]R v Sharkey (1949) 79 CLR 121; R v Murphy (1985) 158 CLR 596 at 619.
[210]Under s 30(c) of the Federal Act the High Court has original jurisdiction in trials of indictable offences against the laws of the Commonwealth.
The appellant submitted that the assimilation of Commonwealth and State criminal jurisdictions can only effectively be achieved if s 68(2) is given an ambulatory operation (which Doyle CJ in the second Full Court accepted the sub-section should have), so that the equivalent of any State jurisdiction which falls within the ordinary connotation of the word "appeal" is conferred on State courts hearing Commonwealth matters.
The appellant further submits that the procedure for which s 350(a1) of the State Act makes provision is different from the procedures prescribed by ss 72‑77 of the Federal Act: s 72 of that Act provides for the reservation of a question of law after verdict, and either before or after judgment on the application of the accused made before verdict, or, in the discretion of the trial judge at any time. In the case of a question reserved following a verdict of guilty, the procedure for a case stated operates as an appeal on a question of law[211]. It is only if a trial judge arrests judgment following a verdict of guilty that the trial judge will be required to state a case on the application of the prosecution. On the other hand a question cannot be reserved on an interlocutory question or issue before verdict pursuant to ss 72-77.
[211]Federal Act, ss 73 and 76.
In my opinion, s 68(2) of the Federal Act does pick up and apply s 350(a1) of the State Act and those other sections of it providing the machinery for the reservation and determination of relevant points of law and the giving of such directions as may be necessary to a trial judge. This is so for two particular reasons: because of the amplitude of the words used in s 68(2) of the Federal Act: in particular, the words "with respect to", "arising out of any such trial …", "or out of any proceedings connected therewith" and the broad definition of "appeal" in s 2 which includes "any proceeding to review or call in question the … decision … of any Court or Judge"; and, because, as the appellant correctly submits, the respective procedures in the State Act and the Federal Act are different in some significant respects.
There is good reason why the Federal legislature may have left ss 72-77 of the Federal Act materially unchanged during and since the period that the States enacted separate and much more expansive provisions for rights of appeal, and indeed, provisions of the kind under consideration here in the State Act, designed to facilitate the more expeditious and convenient form of trial than that which may result from lengthy argument on major points of evidence after a jury is empanelled[212]. The presence of s 72-77 ensures that no matter how the States may legislate, and whatever procedures they may adopt, minimum, effectively guaranteed rights under those sections will remain.
[212]See for instance s 592A of the Criminal Code (Qld). Queensland provides for early (after presentation of an indictment) determination procedures for, inter alia, questions of admissibility of evidence by sub-s (4), though no interlocutory appeal may be brought. Victoria has similar provisions in s 446, Crimes Act 1958 (Vic), although the Victorian legislation does not provide that interlocutory appeals may not be brought from pre-trial determinations of points of law.
Other points by way of contention and otherwise were raised by the respondents. One was that the trial in this case had not commenced, and that until it did, the Federal Act could have no operation to pick up any provision of the State Act. I would reject that argument. Director of Public Prosecutions, South Australia v B[213] does not assist the respondents. There, the question was whether the trial had begun at a stage when the prosecutor sought to enter a nolle prosequi, a stage before the arraignment and plea of the accused. In the joint judgment[214] it is expressly stated that the trial began on the arraignment of the accused[215]. In this case, the respondents had been arraigned before Anderson DCJ. Accordingly, the trial had begun.
[213](1998) 194 CLR 566.
[214]Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 571 [1] per Gaudron, Gummow and Hayne JJ.
[215]See also McHugh J at 582 [32], Kirby J at 589-592 [48]-[49].

Nothing here turns upon the partial overlap between the relevant provisions of the State Act and ss 72-77 of the Federal Act. There is room for the operation of both. The "field" is not covered by the Federal Act, and, to the extent that there is no inconsistency, the State Act may, and does have operation here.
The respondents sought to call in aid s 80 of the Constitution[216]. Their argument seems to be that because s 80 is mentioned in s 68(2) of the Federal Act, the reference in the latter to an appeal can only be to an appeal following a trial in which the jury has participated, presumably up to the stage of giving a verdict and not to a trial of, or a decision with respect to, some other issue or issues. The argument has no substance. Sub-section 68(2) of the Federal Act refers, for example, to a "decision" in criminal trials on matters of law before a judge, and these will ordinarily include points of evidence.
[216]"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."
Another argument that was advanced by the respondents was that the procedure contemplated by the State Act involved the exercise of an advisory, that is to say, a non-judicial function incompatible with the exercise of the judicial power of the Commonwealth.
The question which was raised here was no more hypothetical than any other relevant question arising from time to time in the ordinary course of a criminal trial in relation to the admissibility of evidence. Even when the ruling on the question involves, as it often will, discretionary considerations, there will still usually be an underlying legal question, whether the grounds for an exercise of the discretion have been laid. Each point taken will require a trial judge to give a ruling, and to make a decision which is, subject to appellate review, or some other development in the trial, conclusive. The rulings that will be made may well vary in significance and importance. Whether they are decisions, as opposed to advisory or hypothetical opinions, does not depend upon their relative importance. Rulings on the admissibility of evidence are at least as closely connected with a trial as the matters the subject of the reference by the Attorney-General to the Court of Criminal Appeal in Mellifont v Attorney‑General (Q)[217].
[217](1991) 173 CLR 289.
The respondents mounted a last argument, that it was beyond the power of the appellant to invoke the jurisdiction of the South Australian Court to deal with the questions raised pursuant to s 350(a1) of the State Act. The appellant's powers if they exist, in this regard, must be found in ss 7, 8 and 9(8A) of the Director's Act, the last of which included the power "to apply for a review or rehearing" or "to institute a proceeding in the nature of an appeal"[218]. Once again these are words of amplitude. I do not doubt that the process for which the State Act makes provision is a proceeding in the nature of an appeal. It is not only that, but it is also, in my opinion, at least a proceeding to call in question a decision of a judge, that is to say, an appeal within the meaning of s 2 of the Federal Act. This is not a case in which there is any attempt by the holder of a federal office to exercise the powers of the holder of an office under State law[219].
[218]Section 9(8A) was repealed by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth).
[219]cf Rohde v Director of Public Prosecutions (1986) 161 CLR 119.
The appeal should be upheld. I would not make any order for costs. The appeal was of particular relevance to the appellant and his office. The case should be remitted to the Full Court for further disposition.