R v Luscombe

[1999] NSWCCA 365

Reported Decision: 48 NSWLR 282
168 ALR 227

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v LUSCOMBE [1999] NSWCCA 365
FILE NUMBER(S):	CCA 60789/98
HEARING DATE(S):	01/07/99
JUDGMENT DATE:	22 November 1999
PARTIES :	Darryl Leslie Luscombe Regina
JUDGMENT OF:	Spigelman CJ; Dunford J; Adams J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/12/0075
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ

COUNSEL:	J Basten SC / A P Cook (Appellant) J V Agius SC (Respondent)
SOLICITORS:	Cashman & Partners (Appellant) Commonwealth Director of Public Prosecutions
CATCHWORDS:	CRIMINAL LAW; jurisdiction of District Court; appeal against order made under s19B of the Crimes Act (Cth); STATUTORY INTERPRETATION; "manner in which dealt with"; Crimes Act s19B
ACTS CITED:	Commonwealth Employees Corporation Act (1930-1954) (Cth) Crimes Act 1914 (Cth) Crimes Amendment Act 1982 (Cth) Judiciary Act 1903 (Cth) Crimes Act 1900 Crimes and Other Act (Amendment) Act 1974 Criminal Appeal Act 1912 Criminal Appeal (Crimes) Amendment Act 1979 Justices Act 1902 Justices (Appeals) Amendment Act 1988 Justices Legislation Amendment (Appeals) Act 1998 Justices Act 1890 (Vic)
CASES CITED:	Application of Pearson (1999) 46 NSWLR 148 Adams v Cleeve (1935) 53 CLR 185 Ah Yick v Lehmert (1905) 2 CLR 593 Bropho v Western Australia (1990) 171 CLR 1 Cobiac v Liddy (1969) 119 CLR 257 Griffiths v R (1976-1977) 137 CLR 293 Goward v The Commonwealth (1957) 97 CLR 355 Pearce v R (1998) 156 ALR 684 Peel v The Queen (1971) 125 CLR 447 R v Carngham (1978) 140 CLR 487 R v Ingraessia (1997) 41 NSWLR 447 R v Murphy (1985) 158 CLR 596 R v On Clinic Australia Pty Limited (unreported NSWCCA 6 November 1996) R v Snow (1915) 20 CLR 315 R v Ward (1978) 148 CLR 584 R v Williams (1934) 34 SR(NSW) 143 Rohde v Director of Public Prosecutions (1986) 161 CLR 119 Seaegg v The King (1932) 48 CLR 251 The Queen v Murphy (1985) 158 CLR 596 Thompson v Mastertouch TV Services Pty Ltd (1979) 38 FLR 397 Wall v R; Ex parte King 7 Won & Wah On (No. I) (1927) 39 CLR 245 Williams v The King [No 1] (1933) 50 CLR 536 Williams v The King [No 2] (1934) 50 CLR 551
DECISION:	The answer to the question is ‘yes'; Case remitted to the District Court to be dealt with according to law.

IN THE COURT OF
CRIMINAL APPEAL

60789/98




SPIGELMAN CJ
DUNFORD J
ADAMS J

Monday 22 November 1999


REGINA v Darryl Leslie LUSCOMBE

The Commonwealth Director of Public Prosecutions has the right to appeal to the District Court against an order made by a magistrate under s19B of the Crimes Act 1914 (Cth) discharging a defendant against whom a charge is proved without proceeding to conviction, on the defendant entering into a recognisance to be of good behaviour for a specified period.

Properly construed, s19B(3)(b) confers on the Crown a right to appeal from the orders made under s19B(1)(c) and (d) and from the determination of inexpediency of which such an order is a consequence. Cobiac v Liddy (1969) 119 CLR 257 considered.

Section 19B(3)(b) picks up and applies existing rights of appeal. Through the operation of s39(2) of the Judiciary Act, s19B(3)(b) invokes State laws with respect to an appeal against a “sentence”, within the natural and ordinary meaning of that word. As the District Court has jurisdiction to hear an appeal against a sentence, the court has jurisdiction to hear an appeal under s19B(3)(b). Goward v The Commonwealth (1957) 97 CLR 355 referred to.

Obiter Consideration of the objective of s68 of the Judiciary Act (R v Murphy (1985) 158 CLR 596, R v Williams (1934) 34 SR(NSW) 143, Williams v The King [No 2] 50 CLR 551; Peel v The Queen (1971) 125 CLR 447.

Obiter In light of this objective, the words “trial or conviction” in s68(1)(d) and (2) are not restricted to trial on indictment. There is no basis to limit the word “appeal” to appeals in the strict sense. The procedure created by s131AB of the Justices Act is an “appeal” within the meaning of s68(2).

- 33 -

IN THE COURT OF
CRIMINAL APPEAL

60789/98




SPIGELMAN CJ
DUNFORD J
ADAMS J

Monday 22 November 1999



REGINA v Darryl Leslie LUSCOMBE

JUDGMENT

1    THE COURT: This is the hearing of a Case Stated by his Honour Judge Dodd of the District Court at Sydney concerning the right of the Commonwealth Director of Public Prosecutions (the DPP) to appeal to that Court against an order made by a magistrate under s19B of the Crimes Act 1914 of the Commonwealth (Crimes Act) discharging a defendant against whom a charge is proved without proceeding to conviction, on him entering into a recognisance to be of good behaviour for a specified period.

2    The facts found by his Honour were as follows:

(i) On Monday 20 October 1997, at about 9.30am, seventeen members of the Greenpeace Movement entered the grounds of the Prime Minister's Sydney residence, Kirribilli House. The Prime Minister was not in residence at this time. They obtained entry by using ladders to climb over the front fence. A number of solar panels and signs were carried over the fence and onto the roof.

(ii) The Defendant (Respondent) was charged (under s89 Crimes Act 1914) that he did on 20 October 1997 without reasonable excuse trespass upon prohibited Commonwealth land at Kirribilli.

(iii) The matters were dealt with by a Magistrate at the Local Court at North Sydney on 18 November 1997 and the Defendant pleaded guilty. The court discharged the Defendant without a conviction conditionally on him entering into a recognisance for good behaviour for three months.

(iv) The appellant by Notice of Appeal filed on 16 December 1997 sought to appeal leniency of the Magistrate's decision pursuant to s131AB of the Justices Act 1902.

(v) On 3 August 1998 the hearing of the appeal came on before me in the District Court at Sydney.

(vi) At the outset a preliminary point was raised by the Defendant that the Court had no jurisdiction to hear his appeal.

3 The Respondent submitted that a discharge without a conviction under s19B (1)(d) of the Crimes Act was not a "sentence" within the meaning of s131AB of the Justices Act 1902 (NSW) (Justices Act) as it was not included in the definition of sentence in s131AA of that Act and was not a sentence at common law, that s19B(3) created a right of appeal only for a defendant, and alternatively, that any rights of appeal the prosecution may have were limited to the terms and conditions of a discharge under s19B(1)(d) and did not include the decision not to record a conviction; but his Honour ruled that the District Court had jurisdiction to hear the appeal by the DPP and was thereupon requested to, and stated, the following question for the determination of this Court:

“Does the District Court have jurisdiction to hear and determine an appeal by the Commonwealth Director of Public Prosecutions from an order of a Local Court Magistrate pursuant to s19B(1)(d) Crimes Act 1914 (Cth) discharging a person without proceeding to conviction in proceedings for a summary offence carried on by the Commonwealth Director of Public Prosecutions?

4 The Respondent submits that this question should be answered “Yes”. It relies, alternatively on s39 or s68 of the Judiciary Act 1903 (Cth), as the statutory basis for the conferral of such jurisdiction on the District Court.

5    The Appellant in these proceedings did not advance a simple “No” answer to the question in the Stated Case. Counsel for the Appellant proposed the following answer:

“Yes, but the jurisdiction of the District Court -
(a) extends only to the conditions imposed by way of recognizance specified in the order pursuant to sub-paras (i)-(iii) of para (d) of sub-section 19B(1), and
(b) does not extend to permit the Court -
(i) to reconsider the decision of the Magistrate that it was inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
(ii) to set aside so much of the order as discharged the Appellant without proceeding to conviction, nor
(ii) to impose any conditions that could not have been imposed by the justice concerned, in accordance with s131AB(4).”

6 Under s5B of the Criminal Appeal Act 1912, this Court may answer a question in a stated case in the way propounded on behalf of the Appellant.

7 Section 19B(1) and (3) of the Crimes Act are as follows:

“19B(1) Where:

(a) a person is charged before a court with an offence against the law of the Commonwealth; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:


(i) the character, antecedents, cultural background, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:


(i) that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii) that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):


(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs - by specified instalments as provided in the order; and

(iii) that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.


(3) Where a charge or charges against a person is or are dismissed, or a person is discharged, in pursuance of an order made under subsection (1):

(a) the person shall have such rights of appeal on the ground that he was not guilty of the offence or offences concerned with which he was charged as he would have had if the court had convicted him of the offence or offences concerned; and
(b) there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offences concerned as there would have been if:

(i) the court had, immediately before so dealing with him, convicted him of the offence or offences concerned; and

(ii) the manner in which he is dealt with had been a sentence or sentences passed upon that conviction.”

8 To equivalent effect as s19B(3), a new s20 was inserted by the same amending act (the Crimes Amendment Act 1982 (Cth)). Subsection 20(1) empowers the court to order conditional release after conviction without the passing of sentence, and by subs 20(3):

“(3) Where a person is released in pursuance of an order made under subsection (1) without sentences being passed on him, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence in respect of which the order is made as there would have been if the manner in which he is dealt with had been a sentence passed upon his conviction for that offence.”

9 Section 20A(5) provides that where a person discharged under s19B(1) has, without reasonable cause or excuse, failed to comply with a condition of the order, the court may revoke the order, convict the person of the offence(s) in respect of which the order was made and deal with the person for the offence(s) as if the order had not been made.

Section 19B Crimes Act (Commonwealth)

10 The legislative scheme constituted by s19B to s20AC was inserted into the Crimes Act 1914 (Cth) by the Crimes Amendment Act 1982 (Cth). Section 19B and s20 of the Crimes Act 1914 (Cth) before this amendment referred, as they still refer, respectively, to conditional release with or without conviction. There was, however, no reference to rights of appeal. Such reference was introduced by the 1982 amendments.

11    The Commonwealth Attorney, when introducing the Amendment Bill, noted that it was, in part, based on the Report of the Australian Law Reform Commission Sentencing of Federal Offenders Report No. 15 (1980). The Attorney said:

“Certain of the Commission’s recommendations are given effect to in the present Bill and other provisions of the Bill reflect the experience of my Department in the day to day administration of the Crimes Act .” (Senate, Hansard, 15 October 1981 p1291)

12    In par 371 of its Report on the Sentencing of Federal Offenders, the Law Reform Commission referred to the High Court’s decision in Griffiths v R (1976-1977) 137 CLR 293. In that case the High Court had held that an appeal to the Court of Criminal Appeal under s5D of the Criminal Appeal Act 1912 was incompetent because the trial judge’s action in releasing an accused on remand was not a “sentence” within the meaning of s5D and, accordingly, the Court had no jurisdiction to hear an appeal by the Attorney General. In the course of the reasoning in Griffiths, the members of the High Court considered the meaning of both “conviction” and “sentence”.

13    In R v Carngham (1978) 140 CLR 487, the Court considered these provisions again, leaving open the question of whether or not an order for conditional release after conviction, under s20 of the Crimes Act 1914 in its then form, was a “sentence” from which the Attorney General could appeal.

14 In its Report, the Law Reform Commission made particular reference to s20. It also emphasised the fact that this line of authority restricted appeals by offenders as well as the Crown.

15    In New South Wales, the effect of Griffiths was restricted to doubts about appeals from an order granting conditional liberty after conviction, whether at common law or under s558 of the Crimes Act 1900 (NSW) (the equivalent of s20 of the Commonwealth Act) and the absence of a right to appeal on the part of the Crown. Section 556A(3) of the New South Wales Crimes Act already conferred a right on an offender to appeal on the ground that he or she was not guilty. The form, but not the substance of this right to appeal, was amended by a new s556A(3) substituted by the Crimes and Other Acts (Amendment) Act 1974. The primary response to Griffiths in New South Wales was the insertion of s2(2) into the Criminal Appeal Act, by the Criminal Appeal (Crimes) Amendment Act 1979.

16    When, by the Justices (Appeals) Amendment Act 1988, the Director of Public Prosecutions was given a statutory right to appeal against sentences and other orders imposed by magistrates in criminal matters, the legislature chose to follow the model previously established, by including as s131AA(2) of the Justices Act 1902, the extended definition of “sentence” in virtually identical terms to s2(2) of the Criminal Appeal Act.

17    When the Commonwealth Parliament made the 1982 amendments to the Crimes Act it adopted virtually the same terminology as s556A(3) of the New South Wales Act, in s19B(3)(a) of the Commonwealth Act. It pursued a similar drafting technique to s2(2) of the Criminal Appeal Act in s19B(3)(b) and s20(3). However, it employed different terminology.

18 The Appellant submitted that on the proper construction of s19B(3), no right of appeal was conferred on the Crown. In our opinion, the Parliament intended to put beyond doubt the position as to the Crown’s right of appeal in the cases of conditional release, with and without conviction, for which s19B and s20 of the Crimes Act 1914 respectively provide.

19 In our opinion, the intention of s19B(3)(b) is that the Crown, relevantly the Commonwealth Director of Public Prosecutions (Rohde v Director of Public Prosecutions (1986) 161 CLR 119), has a right of appeal from the dismissal of the charge or the discharge of the person as if it were a conviction. The distinction between “the person shall have” in s19B(3)(a) and “there shall be such rights” of appeal in 19B(3)(b), indicates that the Crown is intended to be accommodated within s19B(3)(b). The change of language is significant and indicates a clear intention that appeals under par (b) are not limited to appeals by the offender as are those under par (a).

20 The legislative history of the subsection, to which we have referred above, supports this construction. The Appellant’s submission that the Crown was not given a right of appeal under s19B(3)(b) should be rejected.

21 The operation of s19B(3)(b) turns on the phrase “the manner in which the person is dealt with”. That appears in both the introductory words to the paragraph and in subpar (ii) thereof. The same clause occurs in s20(3).

22 The words “dealt with” are of broad import. A wide variety of matters capable of being described as “dealings” are referred to in ss19B(1) and (2) and in s20. For example, “dismiss the charge”; “discharge the person”; “security … to the satisfaction of the court”; “conditions”; specification of a “period”; “make reparation or restitution or pay in compensation or … costs”; “condition … as the court thinks fit to specify”; the explanation in subsection 19B(2); etc.

23    The submission of the Appellant was that the clause “manner in which the person is dealt with” should not be construed as extending to the formation of an opinion under par 19B(1)(b) to the effect that it was “inexpedient to inflict any punishment” on the offender or that “it was expedient to release the offender on probation”. It was also submitted that the words should not be construed as extending to the order dismissing the charge or discharging the person under s19B(1)(c) or (d), relevantly the latter.

24 Notwithstanding the breadth of the phrase “manner … dealt with”, it does not encompass every decision in s19B(1) and (2). Under s19B(1)(b) the Court must be “satisfied … that the charge is proved”. That finding is the subject of an express right of appeal in s19B(3)(a). This may have been inserted ex abundanti cautela. It establishes a right of appeal for the offender. By omission it confirms that the Crown has no right of appeal from a failure to find a charge proved. However, it does have a substantive operation. The phrase “manner … dealt with”, does not extend to the ‘dealing’ by way of a finding of not guilty.

25    The Appellant submits that the finding of inexpediency of punishment, or of dismissal or discharge, should be regarded as equivalent to a finding of not guilty.

26    The order dismissing a charge or discharging an offender, impinges directly on the offender. In our opinion, an order with such an effect clearly falls within the natural and ordinary meaning of ‘manner in which the offender is dealt with’. The Appellant’s submission to the contrary should be rejected. The position is not so clear with respect to s19B(1)(b): the finding of “inexpedient to inflict punishment”.

27    In R v On Clinic Australia Pty Limited (unreported NSWCCA 6 November 1996) the Court of Criminal Appeal (presided over by Hunt CJ at CL) considered whether an order under s19B(1)(d) of the Act was a manifestly inadequate punishment. Smart J, with whom the other judges agreed in this respect, said that, “in deciding whether the sentence was manifestly inadequate it is necessary to determine whether any of the factors enumerated in s19B(1)(b) exist” and hence whether it was open to the sentencing judge to conclude that it was inexpedient to inflict any punishment.

28    The question now before the Court was not raised. However, no member of the Court considered that they should treat the appeal any differently from any other sentence appeal, in the sense that the question of adequacy of the orders made was thought necessarily to involve a consideration of the entire course of the proceedings and the appeal may have resulted in the imposition of a conviction. Having regard to the issues in that case, it affords no authority capable of determining the issue we are considering.

29    It is appropriate to approach the construction of s19B(3) by the application of the well known presumption that the Parliament does not intend to modify fundamental principles or common law rights except in clear and unambiguous language. The common law doctrine as to the effect of a verdict of acquittal is such a fundamental principle. (See R v Snow (1915) 20 CLR 315 at 322-323; Wall v R; Ex parte King & Won & Wah On (No. I) (1927) 39 CLR 245 at 250; Thompson v Mastertouch TV Services Pty Ltd (1979) 38 FLR 397 at 407-411; Rohde v Director of Public Prosecutions supra at 128-129; Bropho v Western Australia (1990) 171 CLR 1 at 17-18. See also the Sir Ninian Stephen Lecture of Spigelman CJ “Statutory Interpretation: Identifying the Linguistic Register” to be published in the Newcastle University Law Review accessible at

30    However, careful consideration of s19B does not suggest that the Parliament intended to assimilate a finding of inexpediency to an acquittal.

31 Section 19B(3)(b) creates the same rights of appeal that would be available if there had been a conviction and sentence, where (relevantly) a person is discharged without a conviction despite the charge being proven. The satisfaction of the Court that it is inexpedient to inflict any punishment etc cannot be regarded as equivalent to a finding of not guilty (ie an acquittal) since the right of appeal is that which the Crown would have if the person were convicted.

32    Moreover, satisfaction that a charge is proved, which must be beyond reasonable doubt, is a finding of guilt. That the offender is guilty of the charge is a most significant consideration in correctly characterising the substantive meaning and operation of the section. A finding of guilt, for the purpose of prescribing the rights of appeal, is to be regarded as a conviction although the formality of entering a conviction had been stayed because the court was of the opinion that it is inexpedient to punish the guilty person.

33    The varying character of the term “conviction” is discussed in Cobiac v Liddy (1969) 119 CLR 257 by Windeyer J at 270 ff where his Honour, among other things, said, in relation to a South Australian provision similar to s19B(1)(c):

“A condition precedent of an order under s4(1) of the [Offenders Probation] Act is that the court of summary jurisdiction thought the charge was proved. It seems to me therefore that if an offender who had had the benefit of the dismissal of a complaint pursuant to the subsection came again before a court, charged with having again committed the same offence, it would properly be called his second offence of the same kind, notwithstanding that formerly he had been formally not convicted.”

34 This approach is inconsistent with assimilating a dismissal following proof of guilt with an acquittal. The decision not to proceed to conviction under s19B(1)(d) is only a stay of execution. It is not analogous to an acquittal. Thus s20A(5) provides that an inexcusable failure to fulfil the conditions of the order made following a discharge may result in its revocation, the conviction of the offender and dealing with him as such. Whilst a dismissal of the charge is not revocable, the proceeding should be characterised in the same way as a proceeding under s19B(1)(d) and be regarded, therefore, as analogous to or part of a sentencing process rather than the guilt finding or conviction process. As Kirby J observed in Pearce v R (1998) 156 ALR 684 at 715 “entering a conviction is itself part of punishment”, and has long been so regarded (see also R v Ingraessia (1997) 41 NSWLR 447 per Gleeson CJ at 449). That this is so is implicit in the scheme of s19B(1) itself.

35    In the process of forming the opinion of ‘inexpediency’ or of “expediency” under s19B(1)(b), the Court must “have regard to” a range of personal characteristics of the individual. Although the formation of the opinion does not directly impinge upon the offender, nevertheless the process of assessment involves both the characteristics of the offender and the circumstances of the offence committed by the offender.

36    Assimilating the manner in which the person is dealt with to a sentence passed upon a conviction invokes the process by which a sentence is reviewed on appeal. Whilst, in form, the Crown appeals against a sentence imposing, say, a particular fine or term of imprisonment, it must point to an error in the process that has led to the sentence under attack or, if it cannot show some explicit error, it must demonstrate that the sentence itself is so wrong that such an error must have occurred. On the appeal, the court will consider the various relevant elements determining or, at least, influencing sentence which will certainly include the personal characteristics of the prisoner, the nature of the offence and the circumstances in which the offence was committed (essentially the same matters required to be considered under s19B(1)) and, having regard to these matters, the appropriateness of the punishment inflicted.

37    In our opinion, the phrase “in respect of the manner in which the person is dealt with” refers not only to the orders made under s19B(1)(c) and (d) of the Act but also to the determination of inexpediency of which such an order is a consequence. The phrase “the manner in which the person is dealt with” evinces an intention to describe the entire process resulting in and including the orders ultimately made. The phrase, though awkward, is in ordinary rather than technical language and connotes a general rather than a particular reference.

38 Section 19B(3)(b) and s20(3) confer “such rights of appeal in respect of the manner in which the person is dealt with” as there would have been if “the manner in which he is dealt with had been a sentence”. Neither section creates a right of appeal. Each picks up and applies existing rights of appeal. On the submissions made to this Court, such rights of appeal must be found by the application of either s39 or s68 of the Judiciary Act 1903 (Cth) (Judiciary Act). (Section 79 of the Judiciary Act was not relied on).

Section 39 of the Judiciary Act

39 The Appellant conceded that s39 of the Judiciary Act did confer a partial jurisdiction on the District Court. However, it was submitted that, as a matter of construction of s19B, that conferral of jurisdiction was limited in the manner set out in its proposed answer to the question, as set out above. The concession by the Appellant as to the applicability of s39 was properly made.

40 The issue to be determined in whether s39 operates to encompass the decision that it is inexpedient to inflict any punishment under s19B(1)(b), and/or a decision to discharge the offender under s19B(1)(d).

41 Section 39(2) of the Judiciary Act confers on the several courts of the States within the limits of their several jurisdictions, federal jurisdiction in which the High Court has original jurisdiction or in which original jurisdiction can be conferred on it, except as provided by s38. This includes jurisdiction in matters arising under any laws made by the Commonwealth Parliament (s76(ii) of the Commonwealth Constitution) which are not excluded by s38.

42    As long ago as 1905, it was held that the section, which so far as is material was in the same form as it is today, related to the appellate as well as the original jurisdiction of State courts, and so a person convicted of a federal offence by a Police Magistrate in Victoria had the same right of appeal to a Court of General Sessions under the relevant provision of the Victorian Justices Act 1890 as he would have had if he had been convicted of a State offence: Ah Yick v Lehmert (1905) 2 CLR 593.

43 The federal jurisdiction invested upon the District Court by s39(2) is invested “within the limits” of the District Court’s jurisdiction, including limits as to “subject matter”. The District Court has no jurisdiction to hear Crown appeals unless conferred by statute. The relevant State provision is s131B of the Justices Act.

44 Section 131AB together with the rest of Pt V of the Justices Act was repealed by the Justices Legislation Amendment (Appeals) Act 1998 which commenced on 1 March 1999. The repeal of s131AB does not affect the jurisdiction of the District Court to hear the appeal brought by the Commonwealth Director of Public Prosecutions, by force of the transitional provision in Pt 40 cl 2 of the Second Schedule of the Justices Act which provides:

“Part 5, as in force immediately before its repeal by the Justices Legislation Amendment (Appeals) Act 1998, continues to have effect in respect of convictions or orders made or sentences imposed before that repeal.”

45 Accordingly, s131AB continues to have effect for present purposes. No submission to the contrary was made.

46 Section 131AB relevantly provided:

“The Director of Public Prosecutions may appeal to the District Court against any sentence imposed by a Justice or Justices in:
………
(c) proceedings for any other summary offence if instituted or carried on by the Director of Public Prosecutions.”

47 Section 131AA(2) provided:

“(2) Without limiting the definition of ‘sentence’ for the purposes of this Division:

(a) an order under s556A(1) of the Crimes Act 1900 with respect to a person dealt with for an offence; or

(b) an order or decision under s558(1) of the Crimes Act 1900 with respect to a person dealt with for an offence; or

(c) any other order or decision of any kind whatever made by a Justice or Justices with respect to a person dealt with for an offence:
(i) deferring passing sentence on the person
………
whether or not the person has been convicted,
shall be taken to be a sentence imposed on conviction of the person, and the person shall be taken to have been convicted of the offence.”

48 Section 19B(3) of the Commonwealth Act contains the formulation “such rights of appeal … as there would have been if … the manner in which he is dealt with had been a sentence …”. An issue of construction arises as to whether this terminology is intended to confer federal jurisdiction on any court which can hear an appeal from sentence generally or whether it should be confined to a court which can hear appeals from orders of the character for which s19B and s20 provide. This is of some significance in view of the statutory position in New South Wales.

49 Section 2(2) of the Criminal Appeal Act (NSW) provides:

“Without limiting the definition of ‘sentence’ in subsection (1), for the purposes only of this Act, unless the content or subject matter otherwise requires or indicates -

(a) an order made under s556A(1) of the Crimes Act, 1900, with respect to a person tried for an offence;

(b) a decision to defer passing sentence referred to in s558(1) of that Act or an order made under that subsection upon or with respect to a person tried for an offence; or
(c) any other decision or order of any kind whatsoever being a decision or order to defer passing sentence on a person tried for an offence to remand such a person in custody or to remand such a person and to release him upon his compliance with any condition or otherwise whether or not in any such case the person has been convicted of an offence,
shall be deemed to be a sentence passed or pronounced upon the conviction of that person for the offence for which he was tried and that person shall be deemed to have been convicted of that offence.”

50 A distinction appears between par (a), concerned with s556A, and par (b), concerned with s558. The former extends the definition of sentence only to “an order made” under s556A. The latter refers both to “a decision to defer passing sentence” and an “order made” under s558. This distinction was reflected in similar language adopted when the Crown was given a right to appeal to the District Court by s131AB, in the distinction between “an order” under s556A(1), in par 131AA(2)(a), and “an order or decision” under s558(1), in par 131AA(2)(b).

51 At the time that the New South Wales Parliament inserted s2(2) into the Criminal Appeal Act, s558 has already taken its present form as follows:

“558(1) A court before which a person comes to be sentenced for any offence may if it thinks fit defer passing sentence upon the person and order his release upon his entering into a recognizance, with or without sureties, in such a manner as the court directs, to be of good behaviour for such period as a court thinks proper and to come up for sentence if called upon.”

52 Section 558 contains a clear distinction between the decision to “defer passing sentence upon the person” and the “order” of the offender’s “release upon his entering into a recognizance”. Section 2(2)(b) of the Criminal Appeal Act referred to both aspects of s558(1) in the extended definition of sentence with respect to which the Crown was given a right of appeal. The same was not done in s2(2)(a) with respect to s556A(1).

53 Section 556A(1) was then in its present form: the introductory words referred to the formation of an “opinion” that having regard to certain matters “it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation” and the subsection went on to say that having formed such an opinion:

“The court may, without proceeding to conviction, make an order either

(a) dismissing the charge, or

(b) discharging the offender conditionally on his entering into a recognizance … etc.”

54 In this statutory framework, the omission of any reference to the first stage, at which the opinion of inexpediency is formed by the Court, from s2(2)(a) of the Criminal Appeal Act, as adopted with respect to appeals to the District Court in par 131AA(2)(a) of the Justices Act, may be significant. It is not, however, necessary to express a concluded view on this matter.

55 Section 39, like s68, has long performed a fundamental function in the administration of justice in Australia. The Commonwealth Parliament when enacting specific provisions such as s19B(3) should not in the absence of express words or necessary intendment, be understood to have abrogated s39 by creating a special regime which constitutes a mini-code. Accordingly, s39 was not excluded by another Commonwealth statute which conferred part of the jurisdiction which s39 also confers. (See Adams v Cleeve (1935) 53 CLR 185 at 190-191 as explained in R v Ward (1978) 148 CLR 584 at 589).

56 This is not, however, a case in which s39 is suggested to have been superseded. Rather, this is a case in which, on one view, the Commonwealth has, by express statutory provision, determined that s39 should operate on a particular basis determined by the Commonwealth statute.

57    In Goward v The Commonwealth (1957) 97 CLR 355, the Court had before it s20 of the Commonwealth Employees Corporation Act (1930-1954) which provided:

“20 Any person affected by any determination or action of the Commissioner under this Act may, within thirty days of the date of the determination or the taking of the action or within such extended time as the Court upon application in that behalf allows, appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a rehearing.”

58 In the course of rejecting an argument that s39(2) of the Judiciary Act did not apply to such an express conferral of a jurisdiction which does not exist otherwise than pursuant to the Commonwealth statute, the High Court said:

“We are however disposed to think that, having regard to the purposes of s39 and what may be fairly called its basal character in matters concerning the federal jurisdiction of State courts, such a provision as s20 should be treated as implying an assumption that the general nature of the federal jurisdiction of State courts is fixed by its provisions. In other words we think that s20 should be interpreted in connexion with s39 and that it may be understood as meaning to enable the State courts which it mentions to give the relief it prescribes on the implied assumption that they will exercise federal jurisdiction as under s39.”

59 In the present case, the issue is not whether the jurisdiction is to be exercised “in connection with” or “as under” s39. The issue is, to what State provision does s39 attach? What State provision is encompassed by the words “within the limits of their several jurisdictions”?

60 Section 19B(3) is part of a legislative scheme encompassing s19B to s20AC inserted in 1982 as part of a comprehensive treatment of alternatives to imprisonment for Commonwealth offences. The intention of the Parliament was to invoke State laws with respect to “sentences” in the natural and ordinary meaning of that word as used in s19B(3), not a special meaning of “sentences” in any State act.

61    In our opinion, the federal jurisdiction of the District Court turns on its jurisdiction to hear appeals from sentences. It does not turn on its ability to hear appeals from State provisions equivalent to s19B or s20. On this approach, it would not matter if s556A of the Crimes Act 1900 (NSW) did not exist or if, there being such a provision, there was no appeal from such an order under State law. (See s131AA(2) of the Justices Act). The Commonwealth legislation confers such rights of appeal as exist with respect to sentences.

62 The “limits of the jurisdiction” of a State Court, within s39(2), is the “subject matter” of appeals against sentence, not appeals against orders under provisions equivalent to s19B.

63 On this analysis, s39(2) operates to confer jurisdiction in the present case.

Section 68 of the Judiciary Act

64 In view of the decision to which we have come with respect to s39, it is not strictly necessary to consider the Respondent’s alternative basis for jurisdiction under s68 of the Judiciary Act. Nevertheless, it is desirable to consider some of the submissions made because of the significance of this section in the administration of the criminal law.

65    In the joint judgment of six members of the High Court in R v Murphy (1985) 158 CLR 596 at 617, their Honours referred to s68 in the following terms:

“In 1903 the Punishment of Offences Act was replaced by the relevant provisions of the Judiciary Act , including s68, which has stood unchallenged for 82 years, as a central provision in the administration and enforcement of Federal criminal law. What is more, s68 fulfils an important role in ensuring that Federal criminal law is administered in each State upon the same footing as State courts and avoids the establishment of two independent systems of justice, this being the object which lies behind the grant by the constitution of power to invest State laws with Federal jurisdiction. The importance of s68 in this respect has been expressly recognised in the judgments of this court Williams v The King (No 2) (1934) 50 CLR 551 at 560; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345.”

66    In Seaegg v The King (1932) 48 CLR 251, it was held that the provisions of ss39(2) and 68(2) (as the latter provision then stood) of the Judiciary Act did not confer upon a State Court of Criminal Appeal jurisdiction to hear an appeal brought under the provisions of a State act, by a person convicted on indictment in a State Court of an offence against the laws of the Commonwealth as s72 of the Act dealt with appeals against conviction on indictment.

67    The position was explained by Jordan CJ in R v Williams (1934) 34 SR(NSW) 143 at 148:

"It is clear that, by virtue of the general provisions of s39(2), any appellate as well as any original jurisdiction possessed by a State Court, is exercisable by it with respect to any Federal matters which are within its jurisdiction; and that this is so in relation to criminal as well as to civil proceedings was decided by the High Court in Ah Yick v Lehmert (2 CLR 593) - a case of an appeal from a conviction for a non-indictable offence. Any such general provisions as are found in s39(2), must, however, be controlled by any special provisions which are inconsistent with them. It was accordingly held in Seaegg v The King (48 CLR 251) that the presence in s72 of the Act of special provisions for appeal in the case of indictable offences against the laws of the Commonwealth had the effect of preventing State Courts in the exercise of Federal jurisdiction with respect to such offences from exercising any appellate jurisdiction which they might possess with respect to similar offences against the laws of the State."

68 Section 68 of the Judiciary Act was thereupon amended by Act No. 60 of 1932, and s68(2) now reads as follows:

“The several Courts of a State or Territory exercising jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.”

69 The effect of the amendments was considered in a series of cases involving Mr Harold Williams who pleaded guilty at Sydney Quarter Sessions to certain offences against the laws of the Commonwealth and was sentenced to eighteen months imprisonment. On appeal to this Court by the State Attorney General, the sentence was increased, but he then appealed to the High Court which held that, notwithstanding the amendments to s68(2), this Court could not at the insistence of the State Attorney General alter the sentence imposed upon a person by a State Court for an offence against the laws of the Commonwealth: Williams v The King [No 1] (1933) 50 CLR 536. Subsequently, at the insistence of the Commonwealth Attorney-General, this Court increased the sentence imposed by the State Court at first instance: R v Williams supra. An application for leave to appeal to the High Court was refused, the six Justices being equally divided: Williams v The King [No 2] (1934) 50 CLR 551, and so the issue remained unresolved by the High Court until Peel v The Queen (1971) 125 CLR 447 at 451 when, by majority, the view of this Court, and of Rich, Starke and Dixon JJ in the High Court prevailed, and it was held that s68(2) of the Judiciary Act operated on s5D of the Criminal Appeal Act 1912 (NSW) so as to enable this Court to hear an appeal by the Attorney General of the Commonwealth against a sentence imposed by a State Court following conviction at a trial on indictment for Commonwealth offences.

70    In R v Williams, Jordan CJ with whose judgment Rich J in the High Court expressly agreed, said (at 34 SR(NSW)152)):

"I think that what s68(2) says is that when you have an offence against a law of the Commonwealth then as regards the person charged therewith this Court has - not the same but - a 'like' appellate jurisdiction as it has in the case of a person charged with an offence against the law of a State. I think that it is involved in this, that the person charged may appeal notwithstanding that he does not come within s5(1), because not convicted on a New South Wales indictment; and I think that it also follows that the person concerned on behalf of the Crown with the prosecution of offenders may appeal notwithstanding that he does not come within s5(D) because he is not the New South Wales Attorney-General."

71 Rich J in the High Court at 50 CLR at 558 and Dixon J at 560 both considered the policy of s68 as being to provide a uniform system of criminal law, including appeals, whether the offences involved were established by federal legislation or existed under state law, whilst Starke J at 558 referred back to what he had said in Williams [No 1] at 543 where he described "like jurisdiction" as "jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State." Dixon J at 561 also said that the reference to "like jurisdiction" recognised that the adoption of State law must proceed by analogy.

72    Peel has since been followed in Rohde v Director of PublicProsecutions supra, R v Carnghan supra, and applied in Application of Pearson (1999) 46 NSWLR 148. See also The Queen v Murphy supra as quoted in par [65].

73    These authorities make it clear that the section is to be construed liberally and applied by analogy so as to confer "like jurisdiction" in respect of appeals relating to Federal offenders as is conferred by the relevant State law in respect of State offenders.

74 The first submission put by counsel for the Appellant was that when Parliament introduced the terminology of “arising out of any such trial or conviction or out of any proceedings connected therewith” in both s68(1)(d) and in s68(2), it was intending to deal with the specific matter concerned in the decision of Seaegg v The King supra, ie a trial and conviction on indictment. Counsel for the Appellant submitted that this Court should not construe the words as extending to the reference to “summary conviction”.

75    As stated in Williams v The King supra by Rich J at 558:

“I take the object of the provision to be to assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences. The policy upon which the provision is based is that the administration of the criminal law should be uniform in any given state although some of the offences are created by Federal legislation and the others exist under State law.”

76    Similarly, Dixon J at 560 held:

“… 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.”
(See also R v Murphy as quoted above.)

77 There is no warrant for restricting the words “trial or conviction” in s68(1) and (2) to a trial on indictment. This would be contrary to the objective of assimilating Commonwealth with State criminal procedures and of avoiding the establishment of two independent systems of criminal justice.

78 The second submission put by counsel for the Appellant was that the procedures created by s131AB of the Justices Act (NSW) are not an “appeal” within the meaning of s68(2). That word, it was submitted, should be limited to “appeals” in the strict sense. Again, given the purpose of these provisions of the Judiciary Act, it is not appropriate to confine a word capable of general application by technical distinctions of this character. That the word is intended to have an expansive application appears from the fact that the section is not limited to an appeal from a conviction, but extends to an appeal “arising out of” a trial and also “out of any proceedings connected” with, either a “trial or conviction”.

79    The even division of the High Court in Williams v The King (No 2) was resolved by the majority judgment in Peel v The Queen supra. One of the issues that arose in those cases was whether or not the reference to “conviction” in s68 encompassed a sentence imposed by the Court. By the application of a purposive construction, the High Court reached the conclusion that, either the word “conviction” includes sentence (Williams v The King (No 2) supra at 560 per Dixon J) or an appeal against sentence is an appeal “arising out of a conviction” (Peel supra at 468 per Gibbs J). This construction of s68 was known to the drafter of the amendments to s19B which created both a “conviction” and a “sentence” where neither had in fact occurred. Section 68(2) confers a “like jurisdiction” to that conferred by a State statute.

80 Section 556A and s19B are sufficiently analogous for the purposes of s68(2). Using the words of that section:

81    (i) The magistrate exercised jurisdiction “with respect to the summary conviction” of the Appellant, being a “person charged with” an offence.

82 (ii) The making of an order under s556A is “proceedings connected” with the “summary conviction” with respect to which the jurisdiction referred to in (i) had been exercised. The word “proceedings” has a wide meaning. (See the authorities collected by Wood CJ at CL in Application of Pearson supra at [60]-[61]).

83 (iii) The appeal to the District Court under s131AB of the Justices Act is the exercise of jurisdiction by that Court “with respect to the hearing and determination of appeals, arising out of the … proceedings connected with” the summary conviction in the way identified in (ii).

84 (iv) Section 131AB(1)(c) gives the District Court a jurisdiction to hear appeals “against any sentence” imposed by a justice in summary proceedings instituted by the Director of Public Prosecutions. “Sentence” in that section embraces the natural and ordinary meaning of the word. It is extended by an inclusive definition of “sentence” in s131AA(1) and, by specific extension, to an order under s556A(1) of the Crimes Act and to the other matters referred to in s131AA(2).

85 (v) The District Court has a “like” federal “jurisdiction” to that conferred on it by s131AB of the Justices Act (NSW).

86 On this analysis it would be necessary to determine the scope of the jurisdiction of the District Court with respect to appeals from orders under s556A. As we have said above, this involves an issue of construction, by reason of the contrasting references to s556A and s558 in both s2(2) of the Criminal Appeal Act and s131AA(2) of the Justices Act. The Court has not heard argument on this issue. It is best to leave it until it is necessary to determine it.

Conclusion

87    The question asked in the Case Stated should be answered “Yes” and the case remitted to the District Court to be dealt with according to law.

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