R v L

[1994] FCA 340

R v L
IN THE MATTER of a submission pursuant to Section 30A of the Federal Court Act
1976 of a question of law for the determination of a Full Court of the Federal
Court of Australia
No. ACTG1 of 1994
FED No. 340/94
Number of pages - 7
Appeal - Acts Interpretation Act 1901
(1994) 49 FCR 534
(1994) 122 ALR 464

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT, MILES AND RYAN JJ

CATCHWORDS

Appeal - competency of appeal - special case on a question of law submitted under s.30A Federal Court of Australia Act 1976 - whether reference in s.30A to Director of Public Prosecutions refers to the Commonwealth DPP or the Australian Capital Territory DPP.

Acts Interpretation Act 1901 - unless contrary intention appears, reference to any officer or office will be construed as being in and for the Commonwealth - limited use of extrinsic material where language of legislation is clear.

Federal Court of Australia Act 1976, s.30A
Director of Public Prosecutions Act 1983 (Cth)
Director of Public Prosecutions Act 1990 (ACT)
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Acts Interpretation Act 1901, sub-s.15AA(1), para.21(a)

Re Application of The News Corp Ltd (1987) 15 FCR 227
Trevisan and Another v. Commissioner of Taxation (1991) 29 FCR 157

HEARING

CANBERRA, 21 April 1994
#DATE 31:5:1994

Counsel for the appellant: Mr. K. Crispin, QC

with Mr. S. Loomes

Solicitors for the appellant: ACT Director of Public Prosecutions

Counsel for the respondent: Mr. B. Salmon, QC

with Mr. J. Brewster

Solicitors for the respondent: McPhillamy, Cummins and Gibson

ORDER

THE COURT ORDERS THAT

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT, MILES AND RYAN JJ This appeal comes before a Full Court as a reference appeal under s.30A of the Federal Court of Australia Act 1976 (the Federal Court Act), the relevant subsections of which provide as follows:

"30A(1) Where:

(a) a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory: and

(b) the person has been acquitted in respect of the whole or any part of the indictment:

the Attorney-General or the Director of Public Prosecutions may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court, on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial.

(2) The Full Court shall hear and determine the question.

(3) A determination made by the Court under this section does not invalidate or affect any verdict or decision given at the trial.

(4) Any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory is entitled to be heard in the proceedings to determine the question.

(5) If it appears that a person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory does not propose to be represented in the proceedings to determine the question, the Attorney-General or Director of Public Prosecutions, as the case requires, shall instruct counsel to argue the question on the person's behalf."

1. The appeal was initiated by the filing in the ACT District Registry of a special case which set out the questions of law submitted for the determination of the Full Court. The special case was filed on behalf of the Director of Public Prosecutions of the Australian Capital Territory (the ACT DPP), appointed pursuant to the Director of Public Prosecutions Act 1990 (ACT) (the ACT DPP Act), an enactment of the Legislative Assembly of the Australian Capital Territory.

2. When the appeal was called on for hearing, Mr. Crispin QC, the ACT DPP, appeared in order to present submissions on the questions of law set out in the special case. Mr. Salmon QC, appeared for the person charged and acquitted at the trial, in the exercise of that person's entitlement under sub-s.30A(4) to be heard in the proceedings to determine the question. Mr.Crispin properly raised an initial question as to the competency of the appeal, but submitted notwithstanding that the appeal did not lack competency. Mr. Salmon supported the submissions of Mr. Crispin on the initial question of competency.

3. After hearing submissions only on the initial question of competency, the Court decided that the appeal should proceed no further at that stage, stating that reasons would be given at a later time. No submissions were received on the questions set out in the special case for the determination of the Full Court.

4. The Court has formed the view that the appeal is incompetent and now gives its reasons for arriving at that view.

5. The short point raised by the initial question of competency is whether the reference to the Director of Public Prosecutions in sub-s.30A(1) of the Federal Court Act is or includes a reference to the ACT DPP, or is a reference to the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1983 (Cth) (the Commonwealth DPP and the Commonwealth DPP Act respectively).

6. The issue arises against the background of the granting of self-government to the Australian Capital Territory. The scheme of self-government has been outlined by the High Court in Capital Duplicators Pty Ltd v. The Commonwealth (No.1) (1992) 177 CLR 248 and by this Court in Attorney-General for the Australian Capital Territory v. Commonwealth of Australia (unreported, 4 September 1990). Part of the history of the legislation relating to the Commonwealth DPP and the ACT DPP is discussed in Storer v. Murphy and Another (unreported, ACT Supreme Court, 15 August 1991, Miles CJ). These matters of background and history need but brief discussion in this judgment.

7. The Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self Government Act) establishes the Australian Capital Territory as a body politic under the Crown (s.7). It constitutes the Legislative Assembly (s.8(1)) with "power to make laws for the peace, order and good government of the Territory" (s.22(1)) subject to Part IV and to the exclusion of certain subject matters (s.23). It establishes the Australian Capital Territory Executive (s.36) with executive government responsibility for the matters specified in Sched.4. The matters specified in Sched.4 include "Law and Order" and "Matters incidental to the exercise of any power of the Executive". There is no reference in Sched.4 to the prosecution of offences against the laws of the Territory or to the office or the functions of the Attorney-General or Director of Public Prosecutions.

8. The Australian Capital Territory Executive consists of the Chief Minister and such other Ministers as the Chief Minister appoints from among members of the Legislative Assembly (ss.39, 41). There is no requirement that any of the Ministers hold office as Attorney-General, but we were told that the Executive has in fact always included a Minister holding the office of Attorney-General (whilst at the same time holding other ministerial portfolios).

9. The relevant provisions of the Self Government Act came into force on 11 May 1989 (sub-s.2(2) and Commonwealth of Australia Gazette 1989 No. S.164).

10. The Commonwealth DPP Act came into force on 5 March 1984 (Commonwealth of Australia Gazette 1984 No. S.55), long before the Self-Government Act. Among the functions conferred by the Commonwealth DPP Act upon the Commonwealth DPP was that of prosecuting for "offences against the laws of the Commonwealth" (para.6(1)(a)). The term "laws of the Commonwealth" was defined by sub-s.3(1) of the Commonwealth DPP Act to include the laws of the Australian Capital Territory. Section 30A was inserted into the Federal Court Act by Act No. 11 of 1990 which came into effect on 14 February 1990. On that date, as indicated above, the Commonwealth DPP continued to have the function of prosecuting for offences against the laws of the Commonwealth, which at that stage included offences against the laws of the Australian Capital Territory.

11. From 1 July 1990 an important limit was placed on the time during which the function of prosecuting for offences against the laws of the Australian Capital Territory would continue to be performed by the Commonwealth DPP. It was to continue only so long as no one held office or was acting as ACT DPP under the ACT DPP Act. The Director of Public Prosecutions Regulations (Cth) were amended to read, where relevant, as follows:
    

"3. For the purposes of paragraph 6(2) of the Act, the other functions of the Director are -

.....

(c) to perform, in respect of matters arising under laws made under, or continued in force by, the Australian Capital Territory

(Self-Government) Act 1988, the functions conferred on the Director of Public Prosecutions of the Australian Capital Territory by the Director of Public Prosecutions Act 1990 of the Australian Capital Territory, during any period when no person holds office, or is acting, as Director of Public Prosecutions under that Act.".

4. The Director has the power, during any period referred to in paragraph 3(c), to exercise the powers conferred on the Director of Public Prosecutions of the Australian Capital Territory by the Director of Public Prosecutions Act 1990 of the Australian Capital Territory, in respect of matters referred to in that paragraph."

1. Although most of the ACT DPP Act came into force on 1 July 1990 (ACT Gazette 1990, No. S 44) those sections providing for the appointment of the ACT DPP and staff, and related matters, (ss.5, 19-32) did not do so until a year later.

2. On 26 June 1991 the ACT Executive appointed Mr. Crispin to be the ACT DPP for the period from 1 July 1991 to 30 June 1998 under s.22 of the ACT DPP Act. That section itself came into force also on 1 July 1991 by virtue of notice in the ACT Gazette published on 26 June 1991. The appointment thus brought to an end the power of the Commonwealth DPP continued by regulation 3 to perform the functions conferred on the ACT DPP by the ACT Act.

3. The functions conferred on the ACT DPP by sub-s.6(1) of the ACT DPP Act include:
   

"(a) in relation to indictable offences -

(i) instituting prosecutions on indictment or summarily;

(ii) conducting prosecutions on indictment or summarily, whether instituted by the Director or not;

.....

(fa) where the Director is authorised -

(i) by a law of the Commonwealth;

(ii) under an instrument issued by or on behalf of the Commonwealth in pursuance of an agreement between the Territory and the Commonwealth; or

(iii) pursuant to an agreement with the Commonwealth Director; to prosecute offences against the laws of the Commonwealth - instituting or conducting such a prosecution in accordance with the terms of the law, instrument or agreement;

(g) in relation to appeals in respect of matters referred to in paragraphs (a) to (fa) (inclusive)-

(i) instituting or responding to appeals;

(ii) conducting appeals as appellant or respondent whether instituted or responded to by the Director or not." .....

(gb) representing or acting as agent for the Commonwealth Director; .....

(k) doing anything incidental or conducive to the performance of another function."

1. There is nothing in para.6(1)(a) which expressly restricts the offences which the ACT Director of Public Prosecutions may prosecute to offences against the laws of the Territory. But it is clear that such a restriction is implied both by the general nature of the ACT DPP Act, as an enactment of the Legislative Assembly and also by other provisions in sub-s.6(1). Those provisions include the conferring of the function of prosecuting offences against the laws of the Commonwealth but only where the ACT DPP is so authorised as provided by para 6(1)(fa), and of representing or acting as agent for the Commonwealth DPP, as provided by para.6(1)(b).

2. It was submitted that the reference to the Director of Public Prosecutions in s.30A of the Federal Court Act must be taken to be a reference to the person holding the office to which was attached the function of prosecuting for offences against the laws of the Australian Capital Territory as that function might from time to time be allocated by legislation. Hence, so it was submitted, from the time that the ACT DPP was appointed on 1 July 1991, the reference in s.30A to the Director of Public Prosecutions must be taken as a reference to the ACT DPP.

3. Reliance was placed upon sub-s.15AA(1) of the Acts Interpretation Act 1901, which provides as follows:
   

"Regard to be had to purpose or object of Act 15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

1. However, sub-s.15AA(1) does not provide an answer to the question whether the term "Director of Public Prosecutions" in s.30A refers to the Commonwealth DPP or to the Territory DPP. The requirement of sub-s.15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and sub-s.15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan and Another v. Commissioner of Taxation (1991) 29 FCR 157 at 162 per Burchett J. As Bowen CJ said in Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236:
   

"A more important rule in this context is that embodied in s.15AA of the Acts Interpretation Act 1901 (Cth) requiring the court to lean towards the construction that will promote the purpose of the Act. In the end the task of the court is to ascertain and to enforce the actual commands of the legislature: Scott v. Cawsey (1907) 5 CLR 132 at 155. This will best be achieved by studying the words used and the context and the purpose or object underlying the Act."

1. There are several difficulties with the notion that s.30A empowers the ACT DPP to bring a reference appeal pursuant to the section. The Acts Interpretation Act 1901 provides in para.21(a) that in any Act, unless the contrary intention appears, reference to any officer or office shall be construed as references to such officer or office in and for the Commonwealth. Another difficulty is that the purpose or object of the Act is to be found primarily in the words of the Act itself. Thus, where the language of the Act is clear, recourse to such extrinsic aids as second reading speeches is of limited assistance if not impermissible. In any event, there is nothing in the second reading speech of the Deputy Prime Minister and Attorney-General, relating to amendments to the Federal Court Act to allow for reference appeals, to which we were referred, to suggest that it was intended to confer the power of bringing a reference appeal upon the ACT DPP. Indeed the prediction by the Attorney-General for the Commonwealth that reference appeals from the ACT Supreme Court were likely to have no financial impact beyond increasing the expenditure of the Director of Public Prosecutions by an estimated $21,000 a year suggests that it was expenditure by the Commonwealth DPP that was under consideration.

2. Moreover, regulation 3 of the Director of Public Prosecutions Regulations, commencing on 1 July 1990 and authorising the Commonwealth DPP to continue to perform the functions conferred on the ACT DPP by the ACT DPP Act so long as no one held office or was acting in the office of ACT DPP, is hardly to be construed as having the purpose of transferring the power of bringing reference appeals from the Commonwealth DPP to the ACT DPP once appointed. The bringing of reference appeals is simply not one of the functions conferred upon the ACT DPP by the ACT DPP Act.

3. Regard should also be had to the effect of s.30A of the Federal Court Act that the power to bring a reference appeal is conferred concurrently upon the Attorney-General and the Director of Public Prosecutions. Having regard to what we have already said there can be little doubt that the reference to the Attorney-General is a reference to the Commonwealth Attorney-General. Counsel was not able to suggest any reason why the power of the Commonwealth Attorney-General to bring a reference appeal should be regarded as shared with, or as later passing to, the Attorney-General of the ACT. That is, in our view, an additional reason for regarding the concurrent power as being conferred on and remaining with the holders of both Commonwealth offices, that is the Commonwealth Attorney-General and the Commonwealth DPP.

4. We observe, too, that sub-s.30A(5) specifically casts the burden of an expense upon "the Attorney-General or Director of Public Prosecutions"; it is in the last degree unlikely that Parliament meant to cast the burden on the officers of a different administration without saying so directly, and leaving its intention to be deduced by a process of uncertain inference.

5. The present position may appear to be anomalous in the light of developments in the self government of the Australian Capital Territory whereby the Commonwealth DPP no longer has the function of instituting or conducting prosecutions on indictment in the ACT. However, the Commonwealth does not lack entirely interest in or responsibility for the administration of justice in the Australian Capital Territory. Appeals from the ACT Supreme Court lie to this Court in the ordinary way under para.24(1)(b) of the Federal Court Act. The provisions of s.30A enlarge the appellate jurisdiction of the Federal Court in relation to proceedings in the ACT Supreme Court. If that jurisdiction is to be invoked only by the Commonwealth Attorney-General or the Commonwealth DPP and not by their ACT counterparts, no insuperable difficulty would seem to arise to prevent arrangements between Territory and Commonwealth authorities whereby one might act on behalf of the other. It is to be borne in mind that a power given to a prosecuting authority to resurrect by way of appeal a question of law that has arisen in a trial resulting in an acquittal is itself an anomaly and is not inferred lightly. It is not incidental or conducive to the performance of any of the other functions of the ACT DPP within para.6(1)(k) of the ACT DPP Act. The grant of such a power to the ACT DPP is not to be inferred from s.30A of the Federal Court Act.

6. The effect of the legislation under consideration in this case is quite different from that considered in Peel v. The Queen (1971) 125 CLR 447, which decided that the Judiciary Act 1903 (Cth) operates on the Criminal Appeal Act 1912 (NSW) so as to enable the Commonwealth Attorney to appeal to the NSW Court of Appeal against a sentence pronounced by a New South Wales court upon the conviction of a person charged with an offence against a law of the Commonwealth. Nor is there anything in the later case, Rohde v. The Director of Public Prosecutions (1986) 161 CLR 119, to affect our conclusion in respect of the present appeal.

7. In our view, the ACT DPP has no power to submit a question of law for determination by the Court under s.30A of the Federal Court Act. The appeal is incompetent and is dismissed with costs.