R v Gee and Thaller

No judgment structure available for this case.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A61 of 2002

B e t w e e n -
THE QUEEN
Appellant
and
ROBERT GORDON POLLYBANK GEE and HANS ADALBERT THALLER
Respondents

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 13 AUGUST 2002, AT 2.32 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MR D. PETRACCARO, for the appellant. (instructed by the Commonwealth Director of Public Prosecutions)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR A.L. TOKLEY and MR S.D. OWER, for the first respondent. (instructed by Jon Lister)

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MS N.M. HURLEY, for the second respondent. (instructed by Noelle Hurley)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR C.D. BLEBY, for the Attorney‑General for South Australia intervening in support of the Commonwealth. (instructed by the Crown Solicitor for the State of South Australia)

GLEESON CJ: Yes, Mr Kourakis.

MR KOURAKIS: If the Court pleases, in the appellant’s submission the Full Court in this case has erred by placing an unduly narrow construction on what it recognised was the otherwise wide meaning of the word “appeal” and the ambulatory nature of section 68(2) of the Judiciary Act and it gave an unduly narrow meaning because of what the Full Court said was the implication from the continued retention of sections 72 to 77 of the Judiciary Act. In the appellant’s submission, there is no textual warrant for such an unduly narrow construction and, moreover, that narrow construction is inconsistent with the legislative purpose identified and explained by his Honour Justice Dixon, as he then was, in Williams and accepted by a majority of this Court in Peel’s Case.

Before going to the reasons of the Chief Justice in the court below, can I take your Honours briefly to the State provisions, which the appellant contends are picked up by section 68, and to the relevant provisions of the Judiciary Act itself. If I can take your Honours to volume 2 of the book of materials, can I start with the Criminal Law Consolidation Act South Australia and ask your Honours to go to page 50 of volume 2 which is headed “LEGISLATION”. Your Honours will find at page 50 section 284 which provides for the arraignment, which then puts in train the trial process. Over on the next page of the materials your Honours will find section 285A which provides for the determination of questions such as:

the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled.

In the South Australian case of Attorney‑General, reference No 3, former Chief Justice King held that for the purposes of South Australia, on the enactment of this provision the trial commenced on the arraignment before the judge who would hear such preliminary questions, although that question ultimately was not finally decided in this Court on a subsequent appeal in B but, in my submission, for reasons that appear in the judgment of Chief Justice Doyle, a final resolution of that question is not needed in this case.

Your Honours, on page 52 of the materials your Honours will find section 350, which is the section that the appellant contends is picked up by the provisions of the Judiciary Act. Your Honours will see that in the definition provisions at the commencement of the section it applies to questions of law but by subparagraph (b) of that definition that is extended to the exercise of a discretion in so far that it is something more than just a question of law. By subsection (1) the trial court can in its discretion simply reserve a question for the consideration of the Full Court.

Can I just pause there to make this submission. In my submission, that process whereby a trial court might reserve a question in its own discretion would, in fact, be picked up by section 39 and the plain words of section 39. Subsection (1) is not limited to indictments for State offences; it is to indictments generally. Accordingly, by the application of section 39 of the Judiciary Act, to which I will come later, that section could be picked up in that way. Similarly, in my submission, if the trial judge was to reserve questions himself or herself, the jurisdiction of the Full Court to hear and determine the questions so reserved would probably be picked up by section 39 and certainly in any event picked up by the provisions of section 68.

KIRBY J: When did this come into the South Australian statute?

MR KOURAKIS: 1995, if the Court pleases, and the statute itself appears elsewhere in the book. Your Honours, however, in the circumstances where the trial judge declines to reserve questions, subsection (2) provides that the Full Court can require the reservation of those questions, going to the words in the parentheses in subparagraph (a), “on an application”. The identity of the applicant is not limited, in my submission. Accordingly, subsection (2) varies significantly from provisions such as the State common form appeal provisions which provide for, in the case of Crown appeals, appeals at the instance of the State Attorney‑General. In my submission, by subparagraph (a) and the fact that the applicant is not limited, it confers jurisdiction to deal with applications, to have a trial judge hearing a trial on indictment, be it for a State offence or Commonwealth offence, to reserve a question of law. It is wide enough in that sense to be picked up if the provisions of the Judiciary Act do pick it up.

McHUGH J: Does subsection (2)(b) in its reference to the “Attorney‑General or the Director of Public Prosecutions” apply to the Commonwealth holders of those offices?

MR KOURAKIS: In my submission, it would by section 68(2) if one was picking it up, but in its terms on its own face, clearly not. In my submission, it refers to the State office holders. That restriction is not a restriction that appears in subparagraph (a) where the identity of the applicant, as I say, is not limited. Your Honours, can I also point out this about subparagraph (a). It refers to “an application under this section” – that is section 350 – “or under another provision of this Part”. The footnote in the Act itself refers to section 352(2).

Your Honours can find that subsection, albeit wrongly numbered, at the very bottom of page 55. The computer printout for some reason has numbered that subsection as subsection (3) but it is indeed, I tell your Honours, subsection (2). Your Honours will see that the section to which 350(2) refers is a section which allows the Full Court, in hearing an appeal on a question of law, under the most modern form of the general appeal provisions that were introduced at the commencement of last century, to require the court appealed from “to state a case on the questions raised”.

Can I go from the consideration of those provisions of the State legislation quickly to the provisions of the Judiciary Act upon which the appellant relies and which are discussed in the authorities, to which I will go later, but, in my submission, it is helpful just to go directly to the sections for a moment. Firstly, the definition section of the Judiciary Act, section 2, can be found by your Honours at page 2 of the materials. Can I take your Honours to the definition of “appeal” which appears at the foot of the page. The definition defines an appeal to extend and include to a review or a proceeding which calls “in question the proceedings decision or jurisdiction of any Court or Judge”. Certainly in the use of the words “proceedings . . . or jurisdiction”, in my submission, there is an indication that the appeal as defined there is not limited to an appeal from a judgment finally resolving a proceeding, the word “proceedings” being used in addition to the word “decision”.

Finally, of course, the word used is “decision” and not “judgment” and accordingly, in my submission, within this definition of “appeal” there is in fact no indication in the text of any intention by the Parliament to limit appeal to a decision which is a final judgment or disposition of a proceeding.

GUMMOW J: Has this definition of “appeal” been in the Judiciary Act since 1903?

MR KOURAKIS: Yes, if your Honour pleases.

GUMMOW J: It predated the modern Courts of Criminal Appeal.

MR KOURAKIS: Yes, it did but it was the definition ‑ ‑ ‑

GUMMOW J: So at the time of enacting this there would have been case stated procedures within the State criminal structures, would there not?

MR KOURAKIS: Yes, there were.

GUMMOW J: They are not reported cases where some of them came here?

MR KOURAKIS: I am sorry, your Honour?

GUMMOW J: From the early years of this Court, are there not criminal appeals which arose out of such pre‑Court of Criminal Appeal procedures in the State courts which were entertained here?

McHUGH J: Peacock v The Queen, the leading case on circumstantial evidence – I think it is in 13 CLR – is a case on a stated case.

MR KOURAKIS: If the Court pleases. Can I just say this about the definition. It was clearly there at the time that the amendment to section 68(2) was enacted, so the Parliament put the word “appeal” into section 68 with that definition firmly in place. Other than that, it would appear that its major use prior to the inclusion of the word “appeal” in section 68(2) was probably in section 77 of the Judiciary Act, which your Honours can find at page 15 of the materials, which provided that:

Except as aforesaid –

the earlier provisions, which I will come to in a moment –

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 –

One can see the importance of the wide definition of “appeal” in terms of erecting the need for special leave for appeals to be brought directly from decisions of State courts exercising criminal jurisdiction. Nonetheless, I repeat the submission that at the time of the amendment in 1932 which inserted the word “appeal” into section 68, that was the definition that stood.

McHUGH J: Mr Kourakis, I have not quite followed whether or not you rely just on the general term “appeal” or whether you rely on the words “proceedings decision or jurisdiction”.

MR KOURAKIS: Your Honour, it would be sufficient, in my submission, to rely simply on that which comes within the meaning of “appeal” alone but any doubt is removed by the word “decision”.

McHUGH J: But “decision” has a particular meaning, has it not? It really means the decision that disposes of the proceedings. Is that not the general meaning of it? That was the view that was taken of the term “decision” I think in the Bank Nationalisation Case before the Privy Council, in cases I think on section 44 of the AAT Act and appeals to the Federal Court. I think the case is called Director of Social Services v Chaney. Does “decision” include interlocutory rulings? It would be unlikely, would it not, that you were going to be giving rights of appeal in respect of interlocutory rulings?

MR KOURAKIS: In my submission, it would include that. In the case of Elliott, the reference to which I do not have at the moment, there was an appeal. Special leave was refused but nonetheless an appeal directly from a decision excluding certain evidence by the trial judge in Victoria on a Commonwealth offence. The report seems to proceed on the basis that that decision was appellable. In my submission, “decision” does include “interlocutory decision” and not just “final decision”. There are a number of things that the appellant can rely on. The word “proceedings” and appeal including a review or calling into question of proceedings is probably sufficient as well, particularly when one comes to section 68(2). It can be seen that section 68(2) picks up appeals which arise out of any proceedings connected with the hearing of the indictment and in those circumstances, in my submission, it would extend to an appeal of an interlocutory decision on such a matter as the admissibility of evidence.

GLEESON CJ: Have you looked at the Criminal Appeal Act of New South Wales?

MR KOURAKIS: Not the existing one. Historically both before and after the Judiciary Act ‑ ‑ ‑

GLEESON CJ: I forget whether it is section 5A or 5F but it might be worth looking at. There are provisions in that for appeals by leave from interlocutory decisions of certain kinds. It was actually inserted to deal with decisions relating to applications for stay of proceedings, I think.

MR KOURAKIS: And the Criminal Law Consolidation Act in section 352 has similarly been amended to allow for appeals from stays. In the South Australian Act they are called issues antecedent to trial. Your Honours, can I then go through to section 39 of the Act which your Honours can find at page 5. It is subsection (2) which the decision of this Court in Seaegg held it would not extend to include or apply at that time to State common form appeal provisions. As your Honours will see in a moment when I go to Seaegg, that decision of this Court in Seaegg was based on a construction of the State provisions which were held to give a jurisdiction which was limited to a jurisdiction over appeals brought by the State Attorney and it was thought therefore that section 39(2) ought not be extended or should not be given what I call an extended meaning to in fact confer a jurisdiction which, strictly on a construction of the State statute, the State court did not have.

Next can I take your Honours to section 68 at page 7. Your Honours can see in subsection (1)(d) the words:

the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith –

which were the words added by the amendment in early December 1932 after the decision in Seaegg in September 1932. Your Honours will see the same words but not as a subparagraph in subsection (2) in the second line:

with respect to the hearing and determination of appeals arising out of any such trial or conviction –

The reason it does not appear there as a subparagraph in similar form to subsection (1) is probably because of the words “and for holding accused persons to bail” which appear in subsection (1) but not subsection (2) which just made that more convenient drafting exercise not possible. If I can stay with subsection (2) which deals with the jurisdiction of the courts, the words of extension introduced in 1932 were these:

and with respect to the hearing and determination of appeals arising out of any such trial or conviction –

Your Honours, Justice Gibbs, as he then was, in Peel, although he held that sentence came within the term “conviction”, nonetheless placed considerable emphasis on the words “arising out of” as a second reason for finding that subsection (2) picked up the appeal provisions against sentence by the Crown in that case.

For the purposes of this case, the importance, in my submission, is this, that section 68(2) picks up such provisions for the hearing and determinations of appeals arising out of not just a conviction but also arising out of the trial. If the appeals that the section meant to be picked up were simply from ultimate judgments resolving the criminal proceeding, in my submission, the word “trial” is not a word that fits neatly with that. Rather the use of the word “trial” suggests that the intention of the Parliament was to pick up appeal provisions from decisions which were something less than or antecedent to the final disposition of the matter.

Could I next go to section 72. It is sections 72 through to 74 upon which the court below relied heavily to read down the word “appeal” in section 68. Section 72 provides at page 10 for what, in my submission, is both a case stated provision and an appeal on a question of law provision. I say that because it allows for the case stated after verdict but before judgment but also allows for the case to be stated after judgment. If the case is stated after verdict and at a time where judgment has been postponed, it more conveniently fits into the description of a case stated, whereas if the questions are reserved after judgment, then the effect, in my submission, is more strictly perhaps an appeal in that on the reservation of the question after judgment, the appeal court in this case will set aside the judgment below. Section 72 plainly applies only with respect to convictions in that it is decisions decided adversely to the accused which are subject to that reservation.

Section 73 sets out the powers of the court which hears and determines the questions reserved and your Honours can see they include the power to set aside not just the verdict but also the judgment in the court below. Section 74 is largely a machinery provision for the putting into effect of the judgment as varied or ordered by the appeal court. Section 75 puts a brake on the exercise of the powers in section 73 and restricts the power to set aside a conviction in the cases dealt with by section 75.

McHUGH J: Does not that tell against your argument? Your argument is that it can only apply to a stated case under 72, is it not?

MR KOURAKIS: I am sorry, your Honour?

McHUGH J: Is it your argument that 75 only applies to a case reserved under section 72 or does it have ‑ ‑ ‑

MR KOURAKIS: Yes, it is my case, if your Honour pleases.

McHUGH J: That means then that, notwithstanding that the Parliament has legislated particularly on this point, a conviction can nevertheless be set aside on the ground of improper admission of evidence by reference to the 350 procedure.

MR KOURAKIS: If that is a difficulty – and for the submission I will make in a moment it is probably not – it is a difficulty which equally applies to the appeal on a question of law alone under the common form provisions which are picked up. Under those provisions an appeal on a question of law will be allowed unless the court is satisfied that there is no miscarriage of justice, which is not the same test in terms of simply the text as section 75, but no one suggests that there is a direct inconsistency between picking up the common form appeal provisions on questions of law for reason of that difference. In practice, in my submission, it is unlikely that there will be any difference as a result of the application of those tests.

Section 76 deals with the case of a Crown appeal where, after a verdict of guilty, the trial judge nonetheless moves to arrest the judgment on that verdict of guilty. The decision of the trial judge to arrest judgment for whatever reason must be reserved as a question on the application of Crown counsel. So it is only in that very limited circumstance that the provisions of the Judiciary Act allow for any case stated at the request of the prosecution. Importantly, none of the provisions that I have just taken your Honours to – and, apart from the final provision, section 77, which I went to before, that is it – none of those provisions deal with the reservation of a question of law during the trial for either the guidance of the trial judge or for the correction of a decision made by the trial judge in the course of the proceedings. It is of course mostly that that section 350 of the Criminal Law Consolidation Act deals with.

So, in my submission – and I will come back to this when I go to the reasons of his Honour Chief Justice Doyle in a moment – there is nothing in the suggestion that the provisions of the Judiciary Act make special and particular provision for the sort of proceedings provided for by section 350; in fact, quite the reverse. These provisions between sections 72 and 76 are best characterised or more accurately characterised as provisions for appeals on questions of law. If there was to be any implication from their existence – that is Parliament’s enactment of provisions for appeals on questions of law – one would have thought it would have been to restrict the general form provisions which are picked up, restrict them so that the appeal on question of law provisions were not picked up in case there was an inconsistency. Generally as to section 350 in so far as it applies to the determination and review of determinations on admissibility, it deals really with a very different subject matter to the provisions in sections 72 to 77.

GUMMOW J: Are these provisions in Division 3 investing State courts with some new jurisdiction within the meaning of section 77(iii) of the Constitution or are they conferring an additional power in relation to jurisdiction conferred by some other law of the Commonwealth? If the latter, what is the other law of the Commonwealth?

MR KOURAKIS: In my submission – I have not given this consideration other than now on my feet, your Honour.

GUMMOW J: It is basic really. It is from that that you construe it.

MR KOURAKIS: If your Honour pleases, it would appear that it gives the State courts a jurisdiction that they would not otherwise have pursuant to those provisions of the Constitution.

GUMMOW J: So it is not merely conferring some power?

MR KOURAKIS: No, conferring a jurisdiction. Can I next go to the judgment of his Honour the Chief Justice in the court below which your Honours can find in the appeal book. Can I take your Honours into the judgment of the Chief Justice at page 76 because it is from paragraph 62, after setting out much of the history and some of the submissions, that his Honour sets out his reasons for reaching the conclusion he does. Can I take your Honours over the page to page 77 and to line 35. His Honour had earlier in the preceding paragraph set out passages from this Court’s decision in Seaegg. What his Honour says about this Court’s decision in Seaegg at the bottom of paragraph 63 is this:

The reasoning of the Court was that ss 72-77 of the Judiciary Act made specific provision for appeals by persons convicted on indictment of offences against the laws of the Commonwealth, and the general provisions of s 39 and s 68 should not be read as conferring a jurisdiction with respect to appeals, the content of which jurisdiction was to be found in State law, that would in practical terms render unnecessary or redundant the express provision made by ss 72-77 of the Judiciary Act.

In my submission, there is error in that paragraph in so far as his Honour seems to have treated the decision in Seaegg as a decision which held that the words of other provisions in the Judiciary Act should in fact be read down because of the existence of sections 72 to 77, whereas in effect the decision of this Court in Seaegg was simply to say that it would not give an extended operation over and above the meaning of the plain words of section 39 and section 68 so as to apply it to State provisions which in any event are similar to the provisions in sections 72 to 77.

In my submission, there is an important difference between whether one reads down plain words which are capable of picking up provisions such as section 350 on the one hand, or whether one simply takes the approach that there is no warrant for extending the operation of other Judiciary Act sections beyond what appears on their face when other provision is made.

Can I attempt to elaborate on that submission by taking your Honours to Seaegg 48 CLR 251. Can I take your Honours to page 255. In the first half of that page, really from the words:

We do not think that the State enactment by these general words intends to refer to prosecutions on indictment -

their Honours explained their construction of the New South Wales appeal provisions then in force and why, on a proper construction of those sections, the jurisdiction was limited to a jurisdiction to hear appeals at the instance of the State Attorney‑General. Now, that statutory construction of those sections by their Honours is the setting for all that follows. Their Honours then proceeded really from the foot of page 255 to consider section 39(2). They set out what it provides and how section 39(2) operates. Going over the page to page 256 at about point 4, their Honours said:

It has not, so far, been decided that sect. 39(2) can operate to increase or vary the subject matter of the jurisdiction. In the present instance, the subject matter is confined to appeals against convictions upon indictment preferred under State law.

Now, your Honours, that followed from a construction of the State statute. The jurisdiction was limited to a jurisdiction on the application of the identified Attorney. Their Honours were simply saying that section 39(2) until that point had not been held to in fact not just allow State courts operation within existing jurisdiction but to give them an analogous jurisdiction. Their Honours went on:

It may well be that sec. 39(2) cannot convert the jurisdiction over that subject matter into a Federal jurisdiction over a different subject matter, viz., appeals against convictions upon indictment -

but then they say:

But in any case we think we ought not to construe sec. 39(2) as operating to give by reference to State law another and different jurisdiction over the very same subject as the Judiciary Act 1903‑1927 itself specially provides for, viz., appeal from conviction.

So, your Honours, their decision there was not to read down the obvious operation of 39(2) in so far as it allows State courts jurisdiction over Commonwealth offences within their existing jurisdiction, but simply that they would not extend the operation of 39(2) to give over and above that an analogous jurisdiction over Commonwealth offences in the presence of sections 72 to 77 of the Judiciary Act. In my respectful submission, a similar approach was taken with respect to section 68. At the foot of page 256 their Honours said this:

It is next said that sec. 68(2) of the Judiciary Act 1903‑1927 operates to give the appellant the right of appeal described by the Criminal Appeal Act 1912 of New South Wales against his conviction under Federal law. This sub‑section provides that the several Courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with -

Commonwealth -

offences.

Then their Honours said in the next sentence:

Does the Supreme Court, as a Court of Criminal Appeal, exercise jurisdiction with respect to the trial and conviction on indictment of offenders?

At that point in time section 68 was limited in that it gave State courts a like jurisdiction only with respect to the trial and conviction on indictment. Their Honours are there asking does that term extend to the jurisdiction of a Court of Criminal Appeal? The answers were simply:

The words -

they mean by that the words “trial and conviction” -

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 secs. 72-77 again operates to preclude such an interpretation.

If the Court pleases, the approach of the court is simply to say again that they would not extend the natural meaning of the words “trial and conviction” to include a jurisdiction as to appeals in the presence of sections 72 to 77, but that is a very different approach to saying that plain words appearing elsewhere, for example, in section 68, must be read down to accommodate 72 to 77 in the sense that there ought not be or should not be any overlap between the various provisions.

Your Honours, can I return to the judgment of his Honour Chief Justice Doyle at page 77 of the appeal book and take your Honours to paragraph 67. His Honour says in the first few sentences of paragraph 67 that provisions 72 to 77 can also be described that they provide for an appeal of a limited kind, limited to questions of law. His Honour at the foot of that paragraph refers to the appeals against acquittal which are available in Tasmania and concludes the paragraph by saying:

It was the presence of ss 72‑79 that played an important part in the High Court’s approach to the meaning of s 39 and s 68 as they originally stood.

I of course repeat the submission about how they played a part.

Can I take up from the Chief Justice’s observation that the provisions 72 to 77 provided for an appeal on a question of law by making this submission. At the time of the enactment of the amendment in 1932, in at least three of the States, South Australia, New South Wales and Victoria, there were provisions whereby the State Courts of Criminal Appeal under the general appeal provisions could require an appeal on a question of law to be put before it in the form of questions reserved on a case stated. The consequence of that is this, that if, as it has always been accepted that the amendment to section 68 picked up the general form appeal provisions, including appeals on questions of law, what then happens should the State court exercising a like jurisdiction with respect to Commonwealth offences direct that the appeal on the question of law be stated to it on the basis of questions reserved.

If it truly is the case that sections 72 to 77 prevent 68 picking up any case stated procedure, then it would appear that the jurisdiction which the Court of Criminal Appeal had, because the general appeal provisions were picked up, were suddenly lost because of its decision to have the procedure changed and have the provision put before it as a case stated. All this simply goes to really support the submission I made earlier that if there is any inconsistency between the provisions of sections 72 to 77 in any State laws, it is with respect to the State laws that provide for in the general form appeals on questions of law.

GUMMOW J: Now, there is a debate that has never really been resolved, is there not, as to overlap between sections 39 and 68 of the Judiciary Act? On the face of it, why is not everything in 68 within 39? That is not the way we think.

MR KOURAKIS: No, but if your Honours please, there is certainly an argument to that effect. The only reason ‑ ‑ ‑

GUMMOW J: Section 39 does not use the word “civil”.

MR KOURAKIS: No. There is, in my submission, no reason why it should not apply. Can I just say this. No submission was put to the court below that section 350 could be picked up by section 39. His Honour the Chief Justice, however, held that it could not by reason of the decision in Seaegg. That appears in paragraph 65 at page 77. Your Honours, this is as convenient a time as any, I suppose, to seek leave from your Honours to provide a supplementary submission which has been provided, I think just yesterday ‑ ‑ ‑

GLEESON CJ: Is that opposed?

MR WALKER: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR KOURAKIS: I seek leave to file ‑ ‑ ‑

GLEESON CJ: You have that leave.

MR KOURAKIS: If the Court pleases. Your Honours, in my submission, section 39 can apply in this case at the very least for this reason. When I took your Honours to section 350 I pointed out that the jurisdiction of the Full Court to order that a trial judge reserve questions to it is not limited by reference to the application of the State Attorney‑General, certainly in so far as subsection (2)(a) is concerned. It not being so limited, then it can be simply said that State courts have jurisdictions to reserve questions of law to the Full Court, the Full Court has jurisdiction to require a trial court to reserve a question to it in all cases where there are trials for an indictable offence. It does not matter whether it is a State offence or a Commonwealth offence.

On a construction of section 350, unlike the construction of section 5 of the New South Wales Act in Seaegg, the jurisdiction is not dependent upon an application or appeal by the State Attorney‑General. If that is so, applying section 39 to section 350 requires no extension of the jurisdiction in the way referred to by their Honours ‑ ‑ ‑

GUMMOW J: How do you overcome the point Justice McHugh put to you, about the identity of the State officers?

MR KOURAKIS: The identify of the State officers is in ‑ ‑ ‑

GUMMOW J: In 339. How does it work?

MR KOURAKIS: If your Honour pleases, as to subparagraph ‑ ‑ ‑

GUMMOW J: The pivot of 39 is that this Court could be given the jurisdiction.

MR KOURAKIS: Yes, but the reference to the State officers in section 350 was only with respect to an appeal following an acquittal by the State Attorney but there was no limitation on those who could take an application other than the acquittal and no reference to the State officers, as to that part of the provision. It is for that reason that I make the submission which is contained in the supplementary submissions before your Honours, that section 39 can have application to section 350 at least in so far as it refers to applications before acquittal where the identity of the officer is not in issue.

GUMMOW J: Well, it is part of 350, is it not?

MR KOURAKIS: Yes, and a part upon which this particular case on the question reserved relies is not dependent upon the identity of the officer. Your Honours, that is the submission I make as to section 39 It is simply to make that distinction between the provisions considered in Seaegg and the provision in section 350.

Can I return though to the Chief Justice’s consideration of section 68 by taking your Honours to page 79 of the appeal book. Your Honours will see that after discussing Peel’s Case from the foot of page 78 in paragraph 70, his Honour the Chief Justice identifies the reliance in the reasons of the Justices of the majority in Peel back to the decision of his Honour Justice Dixon in Williams and sets out on page 79 the purpose of the legislative amendment identified by his Honour Justice Dixon. Reading into the passage which is set out on page 79, that legislative purpose is described in this way:

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. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States.”

It is the appellant’s submission that once that legislative purpose is accepted, as indeed it was by the majority in Peel’s Case, then there is no room for restricting the provisions that are picked up so long as the State provisions come within the general description of “appeals” and the natural meaning of those words in section 68.

Indeed, so much was accepted even by Chief Justice Barwick in dissent in Peel’s Case where, at page 453 - and I might take your Honours to that passage if I can. I take your Honours to the decision of this Court if Peel’s Case 125 CLR 447. Can I take your Honours to page 453. Chief Justice Barwick in the first part of that page sets out a passage from the judgment of Justice Dixon in Williams. Then about halfway down the page he explains his Honour’s process of reasoning. Then at about point 5 Chief Justice Barwick said this:

Having by this process included a right in the prisoner to appeal against sentence, no ground can be seen for excluding the right of the Attorney‑General so to appeal. This assumption of policy could not be limited to existing rights or remedies in the State systems, and quite clearly would not be valid if the right to appeal against an acquittal was not given to the Commonwealth Attorney‑General in respect of federal offences tried in Tasmania.

His Honour the Chief Justice in that case, even though in dissent, accepted and acknowledged the effect of accepting as the legislative purpose of the amendment that it intended to ensure that there was one system of justice within each State, the effect being that it could not thereafter be said that the provision was limited to provisions of the type that were in existence on the enactment of the amendments to section 68(2).

It is convenient at this point to consider further the reasoning of his Honour Justice Dixon in Williams’ Case. Can I take your Honours back to that. Williams v The King [No 2] 50 CLR 551. I take your Honours to page 558 and to the reasons of his Honour Justice Dixon, as he then was. Your Honours will see that from the foot of page 558 his Honour sets out the steps in the reasoning process by which his Honour finally concluded that the amendment to section 68(2) by the insertion of the word “appeal” and the expressions that followed it authorised the Commonwealth Attorney‑General to bring an appeal before the Court of Criminal Appeal in New South Wales, that is an appeal against sentence.

Paragraphs (1) and (2), or the first two steps in the reasoning process, deal with the question of the constitutional power to invest State courts with the jurisdiction and in doing so provide a source of power for the provision of new remedies. In paragraph (3) on page 559 his Honour then turns to the question of the effect of the amendments. Firstly, his Honour in paragraph (3) says:

It is, therefore, certain that the amendment was intended to confer upon the Courts of Criminal Appeal of the States a jurisdiction to hear and determine appeals in the case of Federal offences such as existed in the case of State offences and to confer upon prisoners, at any rate, a right to invoke that jurisdiction and to obtain analogous remedies.

So stated, that was the position taken even by the dissentients in the whole Court in Williams. His Honour went on:

No construction of the provision should be adopted which defeats that object, unless the language in which it is expressed is found incapable of any construction that would accomplish it.

His Honour then goes on to further consider the effect of the enactment and its object, going over the page to the passage which has been referred to earlier, the passage starting at about point 2 at 560:

A provision conferring jurisdiction to hear and determine appeals of a specified kind may, perhaps, be taken to mean to do no more than to say which shall be the Court to entertain appeals and administer the remedies . . . But it is also open to an interpretation by which it gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them.
If the Court pleases, that was in effect in answer to a position taken by Chief Justice Gavan Duffy in that case to the effect that section 68 only conferred jurisdiction but gave no party in the Commonwealth proceedings a power to exercise it, but that is the position effectively rejected by his Honour Justice Dixon there. Then in the next step in his reasoning, his Honour says:

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 -

and his Honour then sets out the general policy, which was the general policy of the amendment, which was accepted by the majority in Peel. By paragraph (6) his Honour explains his conclusions for finding that sentence came within the meaning of the word “conviction” as it is there used, a problem which obviously does not arise in this case. In my submission, these proceedings and these decisions of proceedings are at the very least connected with the trial in that they determined questions of admissibility of evidence on the trial. It is in the step in the reasoning numbered (7) on page 561 where his Honour considered the importance of there already existing in New South Wales a provision which allowed a Crown appeal against sentence as of the time of the amendment to section 68 and the inclusion of the word “appeal”.

My submission is this. His Honour there was certainly not relying on the fact that such an appeal provision existed before section 68, or the amendment to it was enacted, as being a necessary part of his reasoning. It is clearly, when that paragraph is considered, a reply to the contention that notwithstanding all the preceding reasons for reading the word “appeal” widely, it should nonetheless be read down because a Crown appeal against sentence was a departure from the principles governing the exercise of penal jurisdiction in the past. The importance of a provision existing in New South Wales in terms of his Honour Justice Dixon’s reasons was purely that, that is that when Parliament amended section 68 it was aware that the appeals that would be picked up from the States included an appeal, at least in the case of New South Wales, by the Crown against sentence but nonetheless amended the words as widely as it did. Once those principles and that reasoning was accepted in Peel’s Case, in my submission, there is simply no reason to read down the word “appeal” certainly in so far as it is capable of picking up the case stated provisions in section 350.

Can I return then to the judgment of his Honour the Chief Justice, and take your Honours to the passages where, notwithstanding the recognition of that general principle, his Honour decided otherwise and construed the words more narrowly. I had taken your Honours to page 79 where the passages from Justice Dixon in Williams are set out. His Honour the Chief Justice sets out from line 40 a passage from the seventh step in his Honour Justice Dixon’s reasoning, and then Chief Justice Doyle says at line 55:

It is implicit in these words that his conclusion was influenced by the fact that the type of appeal in question was a known type of appeal when the amendment was enacted.

In my submission, that is not strictly correct in that his Honour Justice Dixon’s reasons proceeded simply from a construction of the plain words. The only reference to the earlier existence of the Crown appeal provision in New South Wales was to counter the suggestion that the word “appeal” should be construed narrowly because it cut across accepted principles of the criminal law.

If I can next just go to page 80 to paragraph 75. In my submission, at about line 57 the Chief Justice, with respect, correctly, recognises that the general policy statement does not necessarily determine or define the precise reach of the words inserted into section 68. His Honour though then, from about line 60, placed importance on the fact that the Commonwealth Parliament did not repeal sections 72 to 76 when the word “appeal” was included in subsection (2) of section 68, but of course ‑ ‑ ‑

GUMMOW J: Why would they need to? Why would the Commonwealth want to? You have two strings to a bow. Why would you want to take one away?

MR KOURAKIS: If the Court pleases, that is a submission that we put. Perhaps even more starkly, to make another submission about that, your Honours, if they had been repealed, Federal Courts exercising criminal jurisdiction would have been left with no case stated provision that they could exercise. So, in my respectful submission, the continued retention is not a reason for reading down the section.

Your Honours, at page 81 in paragraph 77 the Chief Justice acknowledged the width of the term “appeal” in section 68, and in paragraph 78 acknowledged that:

There is no reason to read a conferral of jurisdiction narrowly -

Then, from paragraph 80, comes back to the theme that allowance must be made that Parliament for the likelihood in the context of the pre‑existing remedies in the Judiciary Act Parliament may not have intended to apply or pick up State provisions when there were similar rights in the Commonwealth law. When I took your Honours to the sections earlier, it is plain in any event that section 350 deals with very different procedures to section ‑ ‑ ‑

GUMMOW J: Now, we can all read this but what in propositional form, as you understand it, are the steps in the reasoning of the Chief Justice by which, having reached what seems a positive outcome for you, he reaches a negative outcome?

MR KOURAKIS: With respect, your Honour, it is not possible to discern what the steps were. One finds the conclusion in paragraph 81 and his Honour calls on “ordinary principles of interpretation” but just what they are, given all the findings before, in my submission, is not possible to discern. No other policy contrary to the accepted policy in Peel’s Case is referred to in terms of the purpose of the legislation. No particular absurd result is referred to.

McHUGH J: His Honour probably had in mind the principle that Justice Dixon stated in Amalgated Clothing v Anthony Hordern 47 CLR 1, that when a statute confers a specific power to do something, that power is hedged with conditions. You do not read a general power in the same instrument as allowing you to achieve the same result without those conditions.

MR KOURAKIS: If the Court pleases, in the face though of a particular legislative purpose identified by Justice Dixon in this case, there does not appear to be any reason for that principle. Indeed, the opposite, the overlap of jurisdiction, so that State offenders and Commonwealth offenders are dealt with under the same principle, as appears to have been the very purpose of the legislation. That particular principle of construction just does not sit ‑ ‑ ‑

McHUGH J: That is a two‑way sword really, is it not, because a jurisdiction within a State you get the same approach but it frequently, and usually, brings about disunity around the nation for those convicted of federal offences.

MR KOURAKIS: If your Honour pleases, that was precisely the point in Chief Justice Barwick’s dissent but it, with respect, was that, a dissent. The majority in Peel accepted, perhaps as a matter of policy or discerning Parliament’s intention, that if two prisoners were down in the cells below the court, it was best that, they being side by side, they were dealt with under the same system of criminal administration even though different systems operated elsewhere, and one can understand the general policy for that reason if no other.

McHUGH J: Yes, but we were told a few years ago in one of the cases that people serving sentences in New South Wales were not happy about what happened to those in Western Australia who got much better ‑ ‑ ‑

MR KOURAKIS: Your Honour, communication is improving. Alternatively, of course though, your Honours, there is always the risk, and up until now probably the likelihood, of differences although with time there is increasing uniformity across a range of jurisdictions and legislation between the States. In any event, from the time of the decision of his Honour Justice Dixon in Williams’ Case, the identified legislative purpose was to assimilate procedures within States for State offenders and Commonwealth offenders.

KIRBY J: There is no doubt that Chief Justice Doyle was sailing in one direction but then his ship hit section 72 to 77. He makes that pretty clear at paragraph 82 on page 82.

MR KOURAKIS: Yes. If Your Honour pleases ‑ ‑ ‑

McHUGH J: And it does lead to this, if I might add, if my memory is right in Murphy’s Case there was both an appeal and a section 72 stated case to the New South Wales courts, one heard by the Court of Appeal and one heard by the Court of Criminal Appeal.

MR KOURAKIS: Yes.

McHUGH J: So you can get this odd result.

MR KOURAKIS: Yes, but it does not result in something that is unworkable, in my submission.

McHUGH J: No.

MR KOURAKIS: It has not been suggested that it is unworkable.

KIRBY J: What is the bias of the court? Is it to have consistency in the treatment of federal offenders throughout the country and the procedure should, as it were, be uniform, or is it that consistently with the principle of analogous reasoning in the Judiciary Act that you pick up any beneficial procedures as there provided from place to place and if they exist, well, that is it?

MR KOURAKIS: In my submission, as a matter of authority the latter, and one can argue, because of the decision in Peel’s Case, the underlying policy advantages or disadvantages but, in my submission, at the very least there is no great enough imbalance between advantages and disadvantages to differ from the authoritative determination in Peel’s Case.

McHUGH J: I must say I would have thought section 68 makes it very plain that the object is that there be uniformity between State and federal offenders.

KIRBY J: In the particular State.

MR KOURAKIS: Yes. If the Court pleases, what this decision has done is to have uniformity within a State as to the general appeal provisions but then have differences within the State as to provisions like section 350 and probably further differences across the country if you like. So this decision increases differences without leaving us with a uniform approach to Commonwealth offenders throughout the country, because the general appeal provisions still apply. So as to the general appeal provisions there will be State‑based differences. As to questions reserved, there is the consistency in the sense that 72 to 77 apply. But that only gives consistency as to matters which really are appeals on questions of law and not the reservation of questions in the course of a trial.

The threads running through his Honour the Chief Justice’s reasons are that sections 72 to 77 deal with the same subject matter but provide a detailed particular procedure for reserving questions of the type that section 350 contemplates, whereas section 350 is really much wider. If this argument was to be run to ground, the truth is that sections 72 to 77 were reasons for not picking up appeals on questions of law alone as enacted by the States because that is the same subject matter as is dealt with by sections 72 to 77. If the Court pleases, they are my submissions on that matter and I would reserve the right to reply on the alternative contentions as part of my reply.

GLEESON CJ: Thank you. Yes, Mr Solicitor.

MR SELWAY: If it please the Court, we rely upon our written submissions with one qualification. In paragraph 7 of our written submissions we suggest that Seaegg may have been wrongly decided. I withdraw that, for a reason I will come to in a moment.

KIRBY J: Which paragraph is it?

MR SELWAY: Paragraph 7.

GUMMOW J: Paragraph 7(d), the top of page 6.

MR SELWAY: Yes, your Honour. Yes, 7(d) and probably also 7(e). As I will come to explain, our basic submission is that the Court of Criminal Appeal has adopted similar reasoning to that adopted by the High Court in Seaegg. Our submission is that that reasoning used by the High Court in Seaegg was wrong. We say that the result in Seaegg can be justified on another ground, that ground being that section 39(2) of the Judiciary Act as it existed in 1932 should have been read as not extending to Crown appeals in criminal matters under the ordinary principles of statutory interpretation that general appeal provisions are not read as including Crown appeals.

Now, your Honours, the last statement of that principle – the last application of it, I think was Byrnes v The Queen (1999) 199 CLR 1 at 26 to 27. That was a basis for limiting section 39(2), which is not referred to by the Court in Seaegg but we say would be a proper basis to support the decision. It would only be a proper basis to support it until the amendment of section 68(2) later in 1932. Once that amendment had been made, and accepting for this purpose that that amendment was designed to ensure Crown appeals in criminal matters, then section 39(2) need then be no longer so limited under the ordinary principle that the amendment of even section 68 meant that section 39 then had to be reinterpreted in light of that amendment.

McHUGH J: But the basic principle you rely on, saying that Seaegg could have been decided on another ground, is that the Crown is not bound, but is there not also a principle that the Crown can take advantage of a statute?

MR SELWAY: With respect, I was not putting, hopefully, that the Crown was not bound, your Honour. The proposition I was putting was that a general appeal provision would not normally be read as including a Crown appeal from conviction or sentence. So that it is the double jeopardy argument of statutory interpretation.

McHUGH J: Yes.

MR SELWAY: What we say is that that argument would have justified the result in Seaegg, and in fact that was the argument that was applied in Byrnes to read down I think a provision of the South Australian Corporations Law, so that it did not give a right of appeal.

We say that there are three elements of the reasoning in Seaegg. The first, and probably the primary one, was that section 39(2) of the Judiciary Act was limited by sections 72 to 73 of the Judiciary Act, which are the case stated provisions. Your Honours can see that – I do not need to take your Honours to it – at 48 CLR 251 at 256 about point 7 to point 9. We say that same approach was adopted by the Court of Criminal Appeal in this case. Your Honours can see the discussion of it in appeal book page 77, in the reasoning of Chief Justice Doyle, and in particular at page 82 in paragraph 81. It can also be seen at pages 91 to 92.

Your Honours, what we say is that that is simply an erroneous approach to the interpretation of a grant of judicial jurisdiction or power. The correct approach, we say, can be seen in the case of The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company (1994) 181 CLR 404.

GUMMOW J: What is said there has been repeated since I think.

MR SELWAY: I am sure it has, your Honour. I only used that case as an example. The same principle applies in constitutional interpretation, as has been stated many times there as well. In that case an argument was put that the general words in section 4(2) of the Admiralty Act 1988 should be read down by reason of context and history, and the Court rejected that approach, stating instead that the proper approach for interpretation – this is at pages 420 to 421 ‑ ‑ ‑

KIRBY J: But is this in the context of the general proposition of the conferral of power or is it in the context of the general proposition plus a specific proposition that is said to be contradictory to the general grant of power? You see, that is the special feature of the sections in this case.

MR SELWAY: Yes, could I come perhaps to the qualification in a moment, your Honour. The qualification certainly exists and we say it has no application here properly read. I do not need to read the words out to your Honours at the bottom of the paragraph on page 420 and over onto 421, but they stand for – the proposition which we put is that:

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.

That general proposition, as I say, is just in the constitutional context as well, but it is subject to contrary indications. One example is the acquisition power in section 51(xxxi) of the Constitution. The same rule of interpretation applies generally to section 51 so that powers are not limited by the existence of other powers, but where you have a qualification and limitation as is contained in 51(xxxi), that qualification would be defeated by reading all the other powers as, if you like, covering the same area as 51(xxxi) and as a matter of statutory interpretation and constitutional interpretation the other provisions of 51(xxxi) are read down, so that they do not apply to acquisitions. Acquisitions are covered by 51(xxxi).

We say that no sort of a problem arises in relation to section 68(2) since it was amended, nor we would say in respect of section 39(2). We say the purpose and object of those provisions are as stated by Justice Mason in R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345 – I do not need to take your Honours to it – and also Justices Rich and Dixon in Williams [No 2], Justice Rich at 558, Justice Dixon at 559, and my learned friend has taken your Honours to Peel.

The purpose of section 68(2), and we would say section 39(2), was to provide the same procedures in relation to federal matters as exist in State jurisdiction. The question then is, what was the purpose of section 72 to 73? For this purpose, your Honours, we would ask that your Honours pay attention to the differences in the operation of sections 72 to 73 and sections 74 to 77. The argument about exclusivity only sensibly relates to sections 72 to 73. The other provisions, and in particular sections 75 and 77, can have a more general operation. Indeed, if one looks at section 77, it presupposes that there are other bases for appeal beyond sections 72 and 73. Your Honours will see:

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 ‑

Clearly an assumption within that section that there is a capacity for appeal provisions beyond sections 72 to 73. What we say is that if there is any exclusivity, the exclusivity is in relation to sections 72 to 73, and one can look at the other sections ‑ ‑ ‑

McHUGH J: But was not 77 necessary in that form to cut down the general power conferred by section 73 of the Constitution?

GUMMOW J: Yes, is that not what 77 is? It is an exercise of the reservation of exception power under section 73.

MR SELWAY: It is, your Honour, but the only point we make is it contemplates an appeal provision – maybe section 73 of the Constitution – but it contemplates appeals coming to this Court elsewhere than from sections 72 and 73. I do not need to refer it for any other purpose. It merely says section 72 and 73 are not a code.

In Seaegg the Court seemed to think that sections 72 and 73 were the exclusive means of appeal in relation to Commonwealth offences. In this case, the Court of Criminal Appeal seems to think that sections 72 and 73 are the exclusive means of stating a case in relation to Commonwealth offences. We say that neither of those positions can survive the clear terms of section 68(2) since the amendment because “appeal” obviously includes a review by way of case stated.

Consequently, your Honours, we submit that since the amendment to section 68(2) – although we would probably say before – the purpose of sections 72 to 73 has not been to provide an exclusive procedure for appeal or an exclusive procedure for case stated. Rather, since that amendment the purpose of those provisions is to provide a minimum procedure for review. So, for example, if a State under its provisions had no basis for review in relation to criminal offences or if the case stated was before a Federal Court, so sections 68 and 39(2) had no operation, then sections 72 to 73 ensure a minimum basis for review in federal jurisdiction. We say read that way, which is clearly the sensible way of reading it, the object or purpose of sections 72 to 73 are not inconsistent with a broad reading of section 68(2) or section 39(2).

McHUGH J: Mr Solicitor, how do you deal with a case of a State legislation that broadly tracks the language of 72 and 73? You cannot rely on 109 of the Constitution. What would happen in a case like that?

MR SELWAY: Well, the State provision will not apply of its own force. It only applies if it is picked up. So there is no 109 issue per se.

McHUGH J: No.

MR SELWAY: There is simply an issue of whether the State statute falls within the terms of sections 39(2) and 68(2). In our submission, it would, even if there was a federal provision to the same effect.

McHUGH J: I am suggesting an example where the State legislation is substantially the same as 72, 73. Let us assume there is some minor variation. What happens in a case like that? Does the Judiciary Act pick it up or does 72, 73 drive it out?

MR SELWAY: We would say it is wrong to approach it on the basis of 72, 73 driving it out, whatever the analysis.

GUMMOW J: Wait a minute. Would not 72 or 73 contract 68 to that extent?

MR SELWAY: It may.

GUMMOW J: Because the law of the Commonwealth would make provision.

MR SELWAY: That is right.

GUMMOW J: But 68 does not have those words.

MR SELWAY: Section 68 does not have those words, so what one is left with is whether, as a matter of interpretation, the differences are such that one comes to the conclusion as a matter of statutory interpretation in context that 68(2) does not have the effect of applying that particular jurisdiction.

KIRBY J: You are only here today expressing the view of the Attorney‑General for South Australia.

MR SELWAY: Yes, your Honour.

KIRBY J: I must admit that I am a little surprised the Attorney‑General for the Commonwealth is not here in this matter. I speak only for myself. There has not been any discussion between Attorneys‑General. You are just expressing your client’s point of view.

MR SELWAY: I am not aware of any discussion between Attorneys‑General, your Honour. There has been discussion between Solicitors‑General.

GUMMOW J: That is the engine room, is it not?

MR SELWAY: And I appear for the ‑ ‑ ‑

KIRBY J: That is what I meant.

MR SELWAY: I appear for the Attorney‑General for South Australia, not for the Attorney‑General for the Commonwealth, but here I am and the Court is sitting in Adelaide.

KIRBY J: Yes. Well, we are grateful for your assistance. It might have been nice to have had some assistance from another quarter.

MR SELWAY: Your Honours, our submission is at the end of the day the provisions are not mutually exclusive; they overlap. This is not surprising. It is the ordinary approach to the interpretation of grants of power. The other two reasons ‑ ‑ ‑

KIRBY J: Could I just say that the reason I made that observation is because it is really quite an important question of policy here as to how the Judiciary Act is to operate, and there are those competing approaches which I mentioned earlier to the appellant, and one would have thought that the Commonwealth would have had something to say. It is, after all, its Act. It is not your Act.

MR SELWAY: Your Honour, the Commonwealth Director of Public Prosecutions is here as a party.

KIRBY J: Yes, but that is a special interest.

MR SELWAY: I understand, your Honour, but ‑ ‑ ‑

KIRBY J: The Attorney-General for the Commonwealth has special responsibilities still.

MR SELWAY: Yes. I will not buy into that, if your Honour will forgive me. Your Honours, the second reason why the Court in Seaegg read down section 39(2) was that the relevant State provisions were understood as being limited to State matters by reference to State Attorney-General and so forth. Now, your Honours can see that in Seaegg at 255 point 4 to point 6 and 256 point 2 to point 5. Again, we say that reasoning cannot be supported. That part of the reasoning was not relied upon by the Court of Criminal Appeal. Nevertheless, we say that section 68(2) and section 39(2) both proceed by analogy.

As to section 39(2), we would refer the Court to the detailed, and we would submit, correct analysis by Justice Sackville in Ly v Jenkins (2001) 187 ALR 178 at 198 to 201. I do not need to take your Honours to that, but we would respectfully adopt his Honour’s analysis of the principles in the cases and say that section 39(2) in broad terms is sufficient to do almost everything, if not everything, that section 68(2) does.

The final reason given by the Court in Seaegg was that section 68(2), in the form it then was, did not confer an appeal. To the extent that that reason had any validity, it was corrected by the amendment incorporating the word “appeal” in section 68(2). Consequently, your Honours, we submit that the reasoning in Seaegg concerning section 39(2) is in error and to the extent that the decision in Seaegg can be supported, it is only in relation to the principle that general appeal provisions should be read down as not extending to Crown appeals in criminal jurisdiction. We also say that the Court of Criminal Appeal was wrong and in error in adopting the same reasoning as was adopted by this Court in Seaegg.

Finally, we would say that there is no constitutional issue that arises in this case. We say there is nothing in sections 68(2), 39(2) of the Judiciary Act, or in section 80 of the Constitution, or even in Chapter III of the Constitution, considered generally, which would prevent preliminary legal issues relating to the trial being resolved prior to the commencement of the trial.

KIRBY J: Well, the question is, how an Act of the Commonwealth is intended to operate under the Constitution throughout the nation. That raises the question as to what the Judiciary Act is intended to do in a case like this, and though on one level that is a matter of interpretation, on another level it is what is intended in the Commonwealth of Australia in cases like this, for prisoners, that they are subject to different procedural rules according to the rules of the State or that they are going to be treated evenly throughout the whole nation.

MR SELWAY: Yes, I accept what your Honour says. That is a matter ultimately of statutory interpretation within the constitutional context. As to that ‑ ‑ ‑

KIRBY J: But one construes it in the light of a theory of the operation of the Constitution.

MR SELWAY: Certainly that is true, your Honour, but nevertheless one construes it in light of the words themselves as well, and if section 68(2) is clear enough that the basic principle – and we say so is section 39(2) – is that in federal jurisdiction there is, so far as there can be, seamlessness with State jurisdiction, then that is the principle. One might be hesitant about reading it that way but there is clear authority over a very long time.

KIRBY J: Not necessarily. One could say that the provisions that permit the conferral of federal jurisdiction on State courts has that as its necessary corollary.

MR SELWAY: One could, your Honour, but that leads to an argument not necessarily of statutory interpretation but of constitutional principle, that there is a constitutional principle that there must be consistency across State boundaries, if you like, in federal jurisdiction. That was an argument which was rejected in Cheatle and we say properly so.

GUMMOW J: In Ly

MR SELWAY: Yes, I apologise, your Honour, Ly. But the argument here that we were directing in relation to the Constitution is that put by my learned friends, as we understand it, which is that these legal issues did not relate to the trial and there was no matter and it was a breach of section 80 because the legal issues were resolved prior to the trial commencing. We say that there is no legal principle that would prevent legal issues being resolved prior to the trial commencing so long as the legal issues are properly related to the proceedings.

GLEESON CJ: Mr Solicitor, I am just looking at page 55 of the appeal book. I am trying to relate some of these statutory provisions to others. What we are concerned with is a judgment of the Court of Criminal Appeal. Is that the Full Court?

MR SELWAY: Yes, your Honour.

GLEESON CJ: In New South Wales, as you may know, there is a separate body called the Court of Criminal Appeal and it consists of certain people who happen to be judges of the Supreme Court of New South Wales. Is that the same system in South Australia?

MR SELWAY: Not exactly, your Honour. What we have is the Full Court puts on another hat. It is still the Full Court but it is called the Court of Criminal Appeal in the Criminal Appeal Rules, so it is still the ‑ ‑ ‑

GUMMOW J: It does not have a separate statutory base, does it?

MR SELWAY: It does not have a statutory base. It is still the Full Court, but it is called the Court of Criminal Appeal when sitting as a Full Court in relation to criminal appeals.

GLEESON CJ: How does section 72 of the Judiciary Act operate in relation to New South Wales?

McHUGH J: Well, in Murphy’s Case it went to the Court of Appeal and there were ‑ ‑ ‑

GLEESON CJ: That was the problem, I guess, in Murphy’s case. The way they deal with this problem is to sit three judges who sit both as the Court of Appeal and the Court of Criminal Appeal, but section 72 refers to the “Full Court of the Supreme Court of the State” which technically is not the same thing in New South Wales as the Court of Criminal Appeal. It is certainly not the same thing as the Court of Criminal Appeal.

MR SELWAY: Yes. I would not necessarily want to make too many submissions about how all this operates in the context of section 73 of the Constitution, for example, which talks about the Supreme Court.

GUMMOW J Well, there are cases saying that nevertheless the same Courts of Criminal Appeal are the Supreme Court in section 73, in the early days, are there not?

MR SELWAY: Yes.

McHUGH J: That is the reason why you have not independent Courts of Appeal around the nation because it creates a great problem for section 73 of the Constitution. They have to be divisions of the Supreme Court.

MR SELWAY: Yes. So my submission would be, as it were, off the top of my head, that the Court of Criminal Appeal in New South Wales must still be seen as a division of the Supreme Court of New South Wales.

KIRBY J: Well, there is a decision which says that and similarly with Courts of Admiralty.

MR SELWAY: Yes.

GLEESON CJ: But in all events, notwithstanding the words “Court of Criminal Appeal”, that problem does not arise in South Australia because on any view of the matter it is the Full Court of the Supreme Court.

MR SELWAY: Yes, your Honour. It is the Full Court calling itself the Court of Criminal Appeal. If it please the Court, those are the submissions for the Attorney-General.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Walker.

MR WALKER: Your Honours, just on that last question. In paragraph 10 of Byrnes’ Case 199 CLR 1 at 12 there is a reference to what the learned Solicitor has just described as the self-naming of the Court of Criminal Appeal. It is:

styled or described for administrative purpose or for ease of reference –

Your Honours, my learned friend, Mr Tilmouth, and I have divided by and large the tasks, so that the first three of the issues stated in our first paragraph of our joint written submissions will be shouldered by me and the rest by Mr Tilmouth.

Your Honours, this is a case which might provide an occasion to undertake an exposition that Sir Anthony Mason found unnecessary in Bull’s Case 131 CLR 203, not a case that figures in the list of authorities because it did not do anything relevant for today’s argument. The reference to that comment is at page 275. Importantly, though, in making a comment, if I may respectfully call it that, about the relationship between section 39 and section 68 of the Judiciary Act as that which did not require or occasion detailed exposition in that case, his Honour did cite from Adams v Cleeve upon which we rely.

It would appear that one of the main divisions at the Bar table before your Honours is as to whether there has been, as it were, a revisionist view of what this Court did in Seaegg, what this Court divided equally about in Williams [No 2], though without consequence for my present argument, and then what this Court spoke of in Peel’s Case.

One thing which divides us even more vigorously, however, is the relevance of the particular words in question. Those words are principally found in three provisions, though there are of course other provisions which provide both context and contrast to each of them. Your Honours have been taken to each of them. I will go to certain words in them. They are section 350 of the Criminal Law Consolidation Act of South Australia; they are section 39 of the Judiciary Act, to which one must immediately add section 39A of the Judiciary Act; and they are section 68 of the Judiciary Act to which we are commanded one way or the other to yoke, in a way that requires examination, to sections 72 to 77, albeit sometimes framed as a different collection.

Your Honours, in our submission, the beginning and end, though not the middle of the question, is in the Judiciary Act and it is as well to note that Part X headed “Criminal jurisdiction” and starting “Division 1, Application of laws” commences itself with section 68, a jurisdictional provision, and there is no question but that in familiar form subsection 68(2) bestows or confers, in the constitutional sense, certain jurisdiction.

Now, against what my learned friend for South Australia has suggested should be some guiding approach of this Court to the interpretation of the statutory conferral of jurisdiction, we would simply pose this, that in relation to any conferral of jurisdiction, be it criminal or not, but with particular point in criminal jurisdiction, the jurisdiction is no greater, although of course no less, than what the words bestow.

Now, it is certainly true that Sir Garfield Barwick dissented on important issues in Peel’s Case. One thing that he did dissent on, we understood my learned friend, Mr Kourakis, to have suggested, was common ground between him and the majority. Now, that is found particularly at the passage quoted by learned friend from 125 CLR 453. It is not the case, with respect, that even the dissenter accepted that there was some assumption of policy which was valid and which would logically drive the outcome to which Sir Owen Dixon had come in Williams [No 2] and to which the majority was in the course of coming in that very case.

Your Honours will note that just above the passage from which my learned friend made his selection, about an inch and a half down on page 453, there is a reference as follows:

It seems to me that his Honour ‑

that is Sir Owen Dixon –

first makes what to my mind is an unwarranted assumption that it was the policy of the Judiciary Act –

et cetera. This is an unwarranted assumption, and from Chief Justice Barwick that should be regarded as an assumption which he does not share at all to any degree. In what concludes that paragraph, it is clear that referring to Sir Owen Dixon having assumed a policy, his Honour is there denouncing, advocacy style, a fallacious argument. It is clear, in our submission, when one drops down to the next paragraph, that his Honour, who of course had been a political officer himself, took a diametrically opposite view concerning what might be thought, as a matter of opinion – and your Honours will recall that Sir Owen had used the word “opinion” at the critical point – about the policy.

Now, the point of my starting with a reference to that matter, apart from the correction involved in what I have put, is that at the foot of that page 453, though he be a dissenter, Sir Garfield said things which, in our submission, are the test. They were not original when his Honour wrote them then and they have been repeated long after.

KIRBY J: In fact that identifies the policy debate, does not it?

MR WALKER: Your Honour Justice Kirby wrote, with great respect, a similar passage in Byrnes. The fact is we look to what are the expression and the only evidence of whatever policy it may have decided to pursue, namely the words of the statute, and, in our submission ‑ ‑ ‑

KIRBY J: Until you drew that to attention, I do not think I have ever read that passage – I may have, but dissents do not tend to get read.

MR WALKER: I hope that is not universally true, your Honour.

KIRBY J: Not immediately anyway.

McHUGH J: There are brooding presences in the sky, as Chief Justice……said, waiting for their day.

MR WALKER: Well, one thing that can be said about that dissent is that your Honours in Byrnes certainly had read an important part of it to which we have come, as your Honours will come, as your Honours have seen in our written submissions, and to which I will return.

May I, at peril of deferring what is, we would accept, the fundamental question, which is the relation between 39 and 68 and whether 68 has any work that matters, except in cases where the Commonwealth is more liberal to an accused than a State, venture upon the words of 68 which have not found any reflection whatever in the addresses your Honours have heard so far. Those words, in particular, are to be found in the critical provisions of subsection (2) and, in our submission, they answer the proposition, attractively put but, in our submission, wrong, from the learned Solicitor‑General, that what happened in 1932 was that the word “appeal” was put into section 68(2).

The word “appeal” was put in, your Honours, but it was put in in a phrase which hedged it around, and it is the hedging around which, in our submission, permits or, applying stare decisis, requires the same kind of reasoning, at a general level of course, that led to the result in Seaegg’s Case by reference to sections 72 and 77, driving out the possibility of an argument based on section 39 in this case as well.
Those words, your Honours will note, pick up a list which has at paragraph (c) the familiar expression “the trial and conviction on indictment”, and at that point those words are describing a kind of judicial activity in a phrase, namely:
The several Courts . . . exercising jurisdiction with respect to . . . the trial and conviction on indictment ‑

describing a category of judicial activity. Then it goes on and adds a fourth matter:

and with respect to the hearing and determination of appeals arising out of –

and then two very important words ‑

any such trial or conviction.

Now, we of course, submit that one of the reasons why the “and” is transformed into “or” is that there can be convictions without trials if there is a not guilty plea, but in any event, the collection of trial and a conviction suggests that it is paragraph (c), not paragraph (a), that is in question, but that very importantly “any such” refers to those which have happened. So selecting from the general category of judicial activity which might occur, about which one has jurisdiction but which need not ever occur if the populus never misbehaves, to one that has happened – actually has happened – trial or conviction. That is why the next words, which I concede are the powerful words against me because of their generality, are words which conclude with an equally important word not touched upon in the addresses so far because they read:

or out of any proceedings connected therewith –

and the antecedent of “therewith”, of course, must be:

any such trial or conviction.

An actual trial or conviction, not a potential or possible member of a category which may never happen. Now, your Honours, even if we are wrong about the section 2 argument, to which I will come, even if we are wrong about the constitutional argument about section 350 on the appellant’s argument, and our constitutional argument has not been, how shall I say, fully put by the Solicitor-General, nonetheless, there is an independent argument that these words do not capture what was done in this case.

McHUGH J: This argument does not give much weight to the words “and the procedure for” – “The laws of a State . . . and the procedure for”.

MR WALKER: It will, I think, your Honour, give complete ‑ your Honour is there in particular referring to the application of the laws in subsection (1)?

McHUGH J: Yes. It is not only the laws that apply but it is also the procedure.

MR WALKER: Well, it is:

The laws . . . respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

One would not divide procedures and laws, your Honour. They are lawful procedures.

McHUGH J: Well, that means you have to read “laws” as including common law.

MR WALKER: Yes. In any event, the common law applies, your Honour. What we have here in subsection (2) ‑ ‑ ‑

GUMMOW J: But subsection (2) is the jurisdiction conferral.

MR WALKER: That is so, it is the jurisdiction clause, and my argument is about jurisdiction. I seek to vindicate – though, as your Honours have seen from the existence of a notice of contention, on somewhat different grounds – a refusal of jurisdiction by the Full Court, not a question of whether they had misapplied the procedure permitted by section 350.

GLEESON CJ: Mr Walker, is that a convenient time?

MR WALKER: Your Honours, I note the time.

GLEESON CJ: We will adjourn until 10.15 am in the morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 14 AUGUST 2002

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R v Gee and Thaller [2002] HCATrans 300

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Byrnes v The Queen [1999] HCA 38

Owners of “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54

[2002] HCATrans 300

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