R v Murphy

[1985] HCA 50

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ.

THE QUEEN v. MURPHY

(1985) 158 CLR 596

14 August 1985

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Investiture of State courts with federal jurisdiction with respect to matters arising under laws made by Parliament—Offence of attempting to pervert course of justice in relation to judicial power of Commonwealth—Committal proceedings—Whether part of "course of justice"—Whether offence confined to course of justice in court exercising judicial power—Conferring jurisdiction on State courts to hear committal proceedings for offences against laws of Commonwealth—Validity—The Constitution (63 &64 Vict., c. 12), ss. 76, 77, 80—Judiciary Act 1903 (Cth), ss. 68, 72—Crimes Act 1914 (Cth), ss. 43, 85E.

Decision

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE, DAWSON JJ.: The Honourable Lionel Keith Murphy, a Justice of this Court (to whom it will be convenient to refer as "the applicant") was charged on indictment in the Supreme Court of New South Wales with the following offences, namely -

"(1) that he between the 1st day of December in the year 1981 and about the 29th day of January in the year 1982 at Sydney in the State of New South Wales and elsewhere whilst a Justice of the High Court of Australia did attempt to pervert the course of justice in relation to the judicial power of the Commonwealth in that he did attempt to influence Clarence Raymond Briese, Chairman of the Bench of Stipendiary Magistrates in the said State to cause Kevin Jones, a Stipendiary Magistrate in the said State, to act otherwise than in accordance with his duty in respect to the hearing of committal proceedings against one Morgan John Ryan on charges of forgery and conspiracy under Section 67(b) and Section 86(1)(d) respectively of the Crimes Act 1914 then being heard by the said Kevin Jones;

(2) that he between the 1st day of July in the year 1983 and the 9th day of July in the year 1983 at Sydney in the said State and elsewhere whilst a Justice of the High Court of Australia did attempt to pervert the course of justice in relation to the judicial power of the Commonwealth in that he did attempt to cause Paul Francis Flannery, a Judge of the District Court of the said State to act otherwise than in accordance with his duty with respect to the trial of the count of conspiracy under Section 86(1)(d) of the Crimes Act 1914 against one Morgan John Ryan which commenced before His Honour and a jury on 11 July in the year 1983."

He pleaded not guilty to each count and after a trial by jury was found guilty on the first count and not guilty on the second count.

2. Thereafter, the learned trial judge, Cantor J., reserved, on the application of the applicant made under s.72 of the Judiciary Act 1903 (Cth), as amended, twenty-one questions for the consideration of a Full Court of the High Court. The questions were described as questions of law but counsel for the Crown disputed that all of them properly answered that description. The applicant also moved to arrest judgment on the ground that s.43 of the Crimes Act 1914 (Cth), as amended, on its proper construction, is incapable of application to the facts alleged in the indictment and, alternatively, if the section on its proper construction can be so applied, it is invalid for the reason that it is beyond the legislative power of the Commonwealth.

3. Subsequently, by an amended Notice of Motion filed in this Court, the Attorney-General for the State of New South Wales sought the following order:

"An order pursuant to Section 40(1) of the

Judiciary Act 1903 removing into this Honourable Court that part of the cause pending in the Criminal Division of the Supreme Court of New South Wales which raises the question whether Section 43 of the Crimes Act, 1914 applies in respect of committal proceedings with respect to indictable offences against the laws of the Commonwealth

conducted by a Magistrate appointed under the Justices Act, 1902 of New South Wales, and if so, whether in relation to such committal proceedings Section 43 of the Crimes Act, and Section 68 of the Judiciary Act are valid laws of the Commonwealth, and whether, prior to its repeal, Section 85E of the Crimes Act, 1914 was a valid law of the Commonwealth."

This Court ordered that the part of the cause pending in the Criminal Division of the Supreme Court of New South Wales which raised the questions stated in the amended Notice of Motion be removed into this Court.

4. It is convenient first to consider the questions so removed. Section 43 of the Crimes Act provides as follows:

"Any person who attempts, in any way not

specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.

Penalty: Imprisonment for two years."

5. The contentions advanced on behalf of the applicant, shortly stated, were as follows: It was first submitted that s.43 of the Crimes Act did not apply to an attempt to obstruct, prevent, pervert, or defeat, the course of justice in the committal proceedings against Mr Morgan Ryan, because the words "the course of justice in relation to the judicial power of the Commonwealth" describe only the exercise of judicial power and committal proceedings do not involve an exercise of judicial power. It was further submitted that s.68(2)(b) of the Judiciary Act is, and s.85E of the Crimes Act while in force was, invalid to the extent that they purported to invest courts of a State with non-judicial power, so that Mr Jones, the magistrate who heard the committal proceedings, was not empowered by a law of the Commonwealth to hear them, and so that on any view of its construction s.43 would have no operation. Finally, it was submitted that if s.43, on its proper construction, does apply to committal proceedings held by a State magistrate in respect of a Commonwealth offence, it is invalid.

6. Section 43 of the Crimes Act in substance reproduces the words of s.140 of the Criminal Code (Q.), which is in the following terms:

"Any person who attempts, in any way not

specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment with hard labour for two years."

Section 140 was based on the words of a section of the draft code of the criminal law prepared in 1879 by a commission of which Sir James Stephen was a notable member, which itself reflected the rule of the common law that an attempt to obstruct the course of justice was a punishable misdemeanour: Reg. v. Vreones (1891) 1 QB 360, at p 367. As Archbold's Criminal Pleading, Evidence and Practice 41st ed. (1982), at par.24-39, puts it, the offence "is, somewhat confusingly, referred to in a number of ways - for example, defeating the due course of justice, perverting the course of justice, interfering with the administration of justice, obstructing the administration, or course of justice, defeating the ends of justice or even, until recently, effecting a public mischief". Some only of those descriptions were used in the drafting of s.140 of the Criminal Code and s.43 of the Crimes Act, and their use causes no confusion in the present case. Similar statutory provisions appear in the laws of New Zealand and Canada. The gist of the offence was described by Pollock B. in Reg. v. Vreones, at p 369, as "the doing of some act which has a tendency and is intended to pervert the administration of public justice". It is quite clear that at common law, and under the statutory provisions of Queensland, New Zealand and Canada, an attempt made to pervert the course of justice at a time when no curial proceedings of any kind have been instituted is an offence: see Reg. v. Vreones; R. v. Sharpe, (1938) 1 All ER 48; 26 CrAppR 122; Reg. v. Kane (1967) NZLR 60; Reg. v. Spezzano (1977) 76 DLR (3d) 160; Reg. v. Thomas (1979) QB 326. In Reg. v. Kane the court held that a person commits the offence of attempting to pervert the course of justice if, when a crime has occurred and the police are investigating it, he is guilty of conduct aimed at preventing or obstructing a prosecution which he contemplates may follow. In a later case, Reg. v. Selvage (1982) 1 QB 372, the Court of Appeal reaffirmed that there may be an attempt to pervert the course of justice notwithstanding that no legal proceedings have begun, and attempted to define the limits of the offence. Watkins L.J. said, at p.380:

"It is obvious from these cases that this

offence which affects the administration of justice is not confined to matters directly concerning criminal proceedings already in being. It impinges upon the process of investigating crime suspected by the police of having been committed or falsely alleged to have been committed by a person desirous of unlawfully bringing criminal proceedings about or of causing police officers to embark upon the process of investigating false accusations to the detriment of their other duties."

Later his Lordship, at p.381, referred to "one of the vital tests or principles which helps to determine whether or not a charge of perverting the course of justice is properly laid", and said:

"This we take to be that a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice."

Whatever the limits of the offence there can be no doubt that at common law, and in jurisdictions where the offence has been defined by statute, "the course of justice" would include the conduct of committal proceedings.

7. However, the submission on behalf of the applicant was that the introduction into s.43 of the words "in relation to the judicial power of the Commonwealth" restricts the scope of the section, so that it applies only to an attempt to pervert the course of justice in a court exercising judicial power. It has been held in this Court that a magistrate conducting committal proceedings is not exercising judicial power: Huddart, Parker &Co. Proprietary Ltd. v. Moorehead (1909) 8 CLR 330, at pp 354-358, 366, 378; Ammann v. Wegener (1972) 129 CLR 415, at pp 435-436. Therefore, it was said, s.43 does not make it an offence to attempt to pervert the course of justice in relation to the conduct of committal proceedings. This construction would, as Sheppard J. said in Foord v. Whiddett (unreported, 14 May 1985), narrow the section in a most arbitrary fashion for which there is no apparent reason.

8. The reason for the insertion into the section of the words "in relation to the judicial power of the Commonwealth" is readily apparent. If s.43 had been in the same words as s.140 of the Criminal Code, it would have been too wide and invalid, unless, of course, it could have been read down to limit it to interference with the course of justice in relation to some matter within Commonwealth power. The insertion of the express words limiting the operation of the section ensured the section's validity. If the words inserted had been "in any judicial proceeding" (an expression defined in s.31 of the Crimes Act) the scope of s.43 would have been reduced, not merely to render it applicable only to matters within Commonwealth power, but to limit its application in respect of such matters, thereby rendering it significantly narrower in its operation than the common law or the corresponding section in other jurisdictions. The words "in relation to the judicial power of the Commonwealth" give the section a wider operation than it would have had if the limitation had been expressed by the use of the words "in any judicial proceeding".

9. The section renders unlawful an interference with the course of justice in relation to the judicial power of the Commonwealth. Clearly an attempt to pervert the course of committal proceedings is an attempt to pervert the course of justice. The critical question is whether, when the committal proceedings are in relation to an offence against a law of the Commonwealth, the course of justice can properly be said to be "in relation to the judicial power of the Commonwealth". The words "in relation to" simply connote the existence of a connexion or association between the course of justice which is attempted to be perverted and the judicial power of the Commonwealth: see the discussion of the meaning of similar words in such cases as Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at p 77; Victoria v. The Commonwealth (1971) 122 CLR 353, at p 399; Fountain v. Alexander (1982) 150 CLR 615, at p 629 and Re Ross-Jones; Ex parte Green (1984) 59 ALJR 132, at p 136; 56 ALR 609, at p 616.

10. Subsequently in this judgment, we consider in more detail the traditional nature and function of committal proceedings and the close relationship between committal proceedings and the exercise of the judicial power of the Commonwealth in the trial of an alleged offender against a law of the Commonwealth. It suffices, for the moment, to make some general comments. In the case of an alleged offence against a law of the Commonwealth, the ultimate issue which it is the function of committal proceedings to determine is whether the alleged offender should or should not be subjected to the exercise of the judicial power of the Commonwealth in a subsequent trial. In such a case, the committal proceedings themselves form part of a curial process which is centred upon the judicial power of the Commonwealth and which, in the case of a subsequent trial, culminates in the exercise of that power. The course of justice in the case of such an alleged offence includes that curial process. Its concern is the judicial power of the Commonwealth: whether it should be invoked, its invocation and its exercise. That course of justice relates, at every stage, to that judicial power.

11. For these reasons, we hold that an attempt to pervert the course of committal proceedings in relation to an alleged offence against a law of the Commonwealth is an attempt to pervert the course of justice in relation to the judicial power of the Commonwealth within the meaning of s.43.

12. We then turn to the question whether the three sections now challenged were valid. Before dealing with the validity of s.43 of the Crimes Act it is convenient to examine the validity of s.68(2) of the Judiciary Act and s.85E(1) of the Crimes Act. If these provisions are invalid, Mr Jones, the magistrate who heard the committal proceedings was not authorized by a law of the Commonwealth to hear them, so that s.43 would have no operation.

13. Sub-sections (1) and (2) of s.68 provide:

"(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for-

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2) The several Courts of a State or Territory exercising jurisdiction with respect to-

(a) the summary conviction; or

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

(c) the trial and conviction on indictment;

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

14. Although s.85E was repealed in 1982, it was in force when Mr Morgan Ryan was committed for trial by Mr Jones S.M. on 22 March 1982. Section 85E(1) invested the several courts of the States with federal jurisdiction with respect to offences against the Crimes Act. Section 85E(5) was in terms substantially similar to s.68(1) except that it was confined in its application to a person charged with an offence against the Crimes Act. It is unnecessary for us to determine whether the authority for the conduct of the committal proceedings was provided by s.68 or s.85E or both provisions. The validity of each section depends upon the same considerations. Accordingly, it will be sufficient if we deal with the arguments which have been directed against s.68(2).

15. The attack on s.68(2) is based on four propositions. They are: (1) that the sub-section, in attempting to invest State courts with jurisdiction in committal proceedings, selects as recipients of that jurisdiction those courts as distinct from the persons who comprise them; (2) that in exercising jurisdiction in committal proceedings the function of a court in inquiring and deciding whether the person charged should or should not be committed for trial is non-judicial and does not involve an exercise of the judicial power of the Commonwealth; (3) that the power conferred by s.77(iii) of the Constitution to invest State courts with federal jurisdiction does not extend to imposing on State courts a non-judicial function unless that function is incidental to the exercise of a judicial function otherwise invested in that court pursuant to the exercise of the power; and (4) that the powers of the Parliament under s.51 of the Constitution to impose administrative functions on the agencies or officers of a State is subject to the concurrence of the State. The correctness of the first proposition may be accepted. The remaining propositions require examination.

16. The power given to the Parliament by s.77(iii) of the Constitution to make laws investing any court of a State with federal jurisdiction is "with respect to" any of the nine matters mentioned in ss.75 and 76. These matters include matters arising under any laws made by the Parliament (s.76(ii)). To what extent s.51(xxxix) of the Constitution may confer ancillary power to invest federal jurisdiction is an unresolved question on which conflicting opinions have been expressed (R. v. Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437, at p 452; Lorenzo v. Carey (1921) 29 CLR 243, at p 252; The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman (1924) 35 CLR 69, at pp 105, 115-116; Le Mesurier v. Connor (1929) 42 CLR 481, at pp 498, 514). According to the authorities, the power conferred by s.77(iii) is limited by the principle, which has been distilled from Ch.III and the dispositions it makes with respect to the judicial power, that only judicial functions and functions incidental thereto may be invested in a State court.

17. Although, as will appear, we think that the relationship between committal proceedings and the trial of an indictable offence is such that they are part of the matter which the trial ultimately determines, we are also, perhaps necessarily, of the view that the relationship is such that to make provision for the conduct of committal proceedings is incidental to the investing of a State court with jurisdiction to try an indictable offence against a law of the Commonwealth. It may be that the first limb of the incidental power contained in s.51(xxxix) would support the validity of s.68(2)(b), although s.77(iii) alone would confer sufficient power.

18. That powers incidental to judicial functions as well as judicial functions may be invested in State courts has long been recognized (Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR 25, at p 37; Cominos v. Cominos (1972) 127 CLR 588, at pp 591, 599 and 605; Russell v. Russell (1976) 134 CLR 495, at p 530). Some of these cases relate to the vesting of jurisdiction in a federal court, but for the purposes of the question under discussion no distinction is to be drawn between vesting jurisdiction in a federal court and investing a State court with federal jurisdiction (Insurance Commissioner v. Associated Dominions Assurance Society Pty. Ltd. (1953) 89 CLR 78, at p 85). The constitutional authority for investing in a State court functions which are incidental to a judicial function is to be found either in the circumstance that power to invest is conferred "with respect to ... matters" or in the rule that the ambit of the power extends to what is incidental to the subject matter.

19. Statements have at times been made which, viewed in isolation, may tend to suggest that no non-judicial function can be vested in State courts. Latham C.J. in British Medical Association v. The Commonwealth (1949) 79 CLR 201 said (at p 236):

"There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power."

This observation was quoted with approval by the Court in its judgment in Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144, at pp 151-152, where the Court went on to say:

"It would be strange indeed if the Constitution contained a grant of legislative power which would enable the Parliament to require or to authorise State courts as such to execute duties, functions or powers which were not judicial."

However, earlier, the Court had observed (at p.151):

"Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers."

In Queen Victoria Memorial Hospital the function sought to be entrusted to State courts of summary jurisdiction was a bare administrative function, a power to make an appointment in substitution for an appointment made by an employer.

20. Subsequent decisions make it clear that the judgment in Queen Victoria Memorial Hospital was not regarded as qualifying in any way the principle as we have stated it. See, for example, the discussion in the joint judgment of Dixon C.J. and McTiernan J. in Reg. v. Davison (1954) 90 CLR 353, at pp 368-369. And in Steele v. Defence Forces Retirement Benefits Board (1955) 92 CLR 177 the Court, after referring to the discussion in Reg. v. Davison of judicial power and what may be incidental to its exercise, observed (at pp 186-187):

"But what is a bare administrative function cannot be committed to a court. Such a function cannot be committed to a court so to speak in gross as opposed to a thing appurtenant to the performance of a principal judicial duty to which it is an accessory. This is shown by Queen Victoria Memorial Hospital v. Thornton ...".

21. In the authorities which we have mentioned, attention was directed to the exercise by a court of a function which was incidental to the principal judicial function discharged by that court. In no case apart from Pearce v. Cocchiaro (1977) 137 CLR 600, to which we shall refer shortly, has there arisen for consideration the question whether the Parliament can invest in a State court a function which is incidental to a judicial function when that judicial function is entrusted to a State court other than the court in which the incidental function is reposed. The applicant submits that as a matter of principle this general question must be answered in the negative. We do not consider that the question admits of an absolute answer, though we agree that it may be that in most situations a function, regarded as incidental to the judicial function when performed in association with it, ceases to be so and becomes a bare administrative function when performed on its own.

22. As we have already mentioned, it has been said that the function of a court in deciding whether a person charged should or should not be committed for trial is non-judicial. In Huddart, Parker &Co. Proprietary Ltd. v. Moorehead Griffith C.J. went further and said (at p 357) that the function did not involve the exercise of judicial power. These statements do not, we think, fully reflect the character of committal proceedings. The hearing of committal proceedings in respect of indictable offences by an inferior court is a function which is sui generis. Traditionally committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights. At the same time they have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged (Sankey v. Whitlam (1978) 142 CLR 1, at pp 83-84). The procedure followed on the hearing of committal proceedings is similar to that followed on the hearing of judicial proceedings (see, e.g., 11 &12 Vict. c.42, s.17; Justices Act 1902 (N.S.W.), s.36). Subject to the provisions of applicable Bail Acts, the ordinary consequence of an adverse determination of them is, as their name implies, the commitment to prison of the accused until the sittings of the court before which he is to be tried (see 11 &12 Vict. c.42, s.25; Justices Act, s.42). Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power: see Ammann v. Wegener, at p 437; Barton v. The Queen (1980) 147 CLR 75, at p 99.

23. It is inconceivable that, when s.80 of the Constitution provided for "the trial on indictment of any offence against any law of the Commonwealth (to) be by jury", the ordinary curial process for bringing an alleged offender to trial was not intended to be followed in the case of federal indictable offences.

24. The exercise of jurisdiction by State courts in committal proceedings in respect of federal offences goes back to the earliest days of federation. It began with the Punishment of Offences Act 1901 (Cth) which was a temporary measure ceasing to have effect when the High Court was established (s.1). It contained provisions similar to s.68(1) and (2). It conferred jurisdiction on the courts and magistrates of each State to commit a person for trial who had been charged with an offence against a Commonwealth law, subject to the qualification that jurisdiction should only be exercised with respect to summary conviction, or examination and commitment for trial, by designated magistrates (s.3). In 1903 the Punishment of Offences Act was replaced by the relevant provisions of the Judiciary Act, including s.68, which has stood unchallenged for eighty-two years as a central provision in the administration and enforcement of federal criminal law. What is more, s.68 fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law 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 courts with federal jurisdiction. The importance of s.68 in this respect has been expressly recognized in the judgments of this Court (Williams v. The King (No. 2) (1934) 50 CLR 551, at p 560; Reg. v. Loewenthal; Ex parte Blacklock (1974) 131 CLR 338, at p 345).

25. Underlying s.68(2) and s.85E(1) is the assumption - in our opinion well-founded - that in giving jurisdiction to State courts in committal proceedings the Parliament is investing those courts with jurisdiction in a matter arising under s.76(ii) of the Constitution, the matter being the claim or charge that the person charged has committed an offence against a particular law of the Commonwealth. Except in the rare case where the charge is made in an ex officio indictment, the curial process which determines that matter consists in the committal proceedings and, if an order for commitment is made, in the trial which follows the presentation of an indictment. The point to be made is that the Parliament might, if an appropriate State court structure existed, invest in one State court jurisdiction to determine the entire "matter", consisting of the committal proceedings and the trial for the offence following upon an order for commitment. Given the existing State court structure, Parliament has invested State inferior courts with jurisdiction in committal proceedings and other State courts with jurisdiction in trials in respect of federal offences. We see no constitutional objection to the acceptance of this traditional division in the exercise of jurisdiction in the curial determination of charges in respect of federal indictable offences. In our opinion it results in a valid investment by s.68(2) and s.85E(1) of jurisdiction in State inferior courts with respect to matters arising under s.76(ii) of the Constitution.

26. Pearce v. Cocchiaro confirms the correctness of this conclusion. There the Court upheld the validity of s.273(2) of the Bankruptcy Act 1966 (Cth). It provided that where proceedings for certain offences under that Act are brought in a court of summary jurisdiction, the court may either determine the proceedings or commit the defendant for trial. Gibbs J. (with whom Stephen, Jacobs and Aickin JJ. agreed) pointed out (at p.609) that, in so far as the power invested was judicial power, the section was validly enacted under s.77(iii) of the Constitution and that, in so far as the power was of a non-judicial kind, it was a valid law with respect to those matters in relation to which the Parliament may create criminal offences - in that case s.51(xvii) of the Constitution. In the light of the conclusion that we have reached on the scope of the power to invest State courts with federal jurisdiction it is unnecessary to place any direct reliance upon the various paragraphs of s.51 to sustain the validity of either s.68(2) or s.85E(1).

27. The attack upon the validity of s.43 of the Crimes Act has to be considered in the light of the interpretation which we have already given to the section. Although we have rejected the narrow interpretation advanced on behalf of the applicant, the effect of the words "in relation to the judicial power of the Commonwealth" is to confine the proscribed attempts to pervert the course of justice to those which have a relationship with the exercise of that judicial power. If we accept the applicant's contention that the exercise of the judicial power begins with the presentation of an indictment for an indictable offence, the course of justice in relation to the actual exercise of that power which takes place thereafter necessarily comprehends the committal proceedings which are preliminary to indictment and trial. In the light of the unique relationship between those proceedings and the trial there is every reason for concluding that the relevant head of power under s.51 extends to protection of the committal proceedings as an integral element in the course of justice in relation to the exercise of judicial power. Granted that legislative power exists to create a particular offence, that legislative power necessarily extends to the protection of the course of justice in relation to the process of bringing the offender to justice and enforcing the law against him. The creation of the offence of perverting the course of justice or attempting to pervert the course of justice is an appropriate means of giving such protection.

28. It remains to consider the reservation by Cantor J. of questions for the consideration of this Court. The reservation purports to be made in accordance with s.72 of the Judiciary Act. Section 72(1) reads as follows:

"When any person is indicted for any

indictable offence against the laws of the Commonwealth, the Court before which he is tried shall on the application by or on behalf of the accused person made before verdict, and may in its discretion either before or after judgment without such application, reserve any question of law which arises on the trial for the consideration of a Full Court of the High Court or if the trial was had in a Court of a State of a Full Court of the Supreme Court of the State."

A question arises whether on its proper construction the section authorizes, in a case where the trial proceeds in a court of a State, the trial judge to state a case to this Court. Read literally, there is something to be said for the view that it is only where a trial proceeds in the High Court or a Federal Court that the reference may be made to a Full Court of the High Court. The history surrounding the amendment of the sub-section by Act No. 4 of 1915 supports a contrary view. Some doubt was expressed on the matter in R. v. O'Donoghue (1917) 23 CLR 9. The Court has, however, accepted jurisdiction to decide questions reserved by a State court: R. v. Sharkey (1949) 79 CLR 121. We think it appropriate to do likewise. This course is supported by the view expressed by Mason J. in Ex parte Clyne (unreported, delivered 1 November 1984). We add that we agree with the construction of s.72 by Mason J. in the last-mentioned case to the effect that it does not confer upon an accused person the right to nominate the Court for the consideration of which the questions are reserved. Were it to do so, the procedure would, as his Honour emphasized, stand in marked disconformity with the structure of the appellate jurisdiction of the Court.

29. The real issue for determination is whether the Court should exercise the power conferred upon it by s.44 of the Judiciary Act to remit the consideration and determination of the questions reserved to a Full Court of the Supreme Court of New South Wales. It is conceded by counsel for the applicant that the power to remit is available in the circumstances of the case. Before us the Crown argues for a remitter. Most, if not all, of the twenty-one questions reserved for consideration are questions which this Court would not ordinarily be asked to consider without the benefit of the views of an intermediate court of appeal. The sole argument advanced for the applicant against remitter was that it was in the interests of all in the community that the matter should be finally disposed of as soon as possible and that this Court is the only forum that can achieve that result. However, the course of argument soon demonstrated that finality might not be achieved by this Court proceeding to determine the reserved questions because there are other issues not reserved which would be pursued on appeal if the necessity arose. One of those issues is based on a submission that the verdict is unsafe and unsatisfactory, a submission which would involve a far-reaching examination of the evidence and a close scrutiny of the trial proceedings and necessarily encompass many of the matters raised by the reserved questions. These other issues which the applicant may raise can be pursued only on appeal to the Court of Criminal Appeal in New South Wales. On such an appeal the questions reserved by Cantor J. may also be involved. Indeed, if it should transpire that some of the questions reserved are not truly questions of law that are open to be reserved under s.72 those questions might be susceptible of consideration only in the appeal.

30. In all the circumstances, the preferable course is that the questions reserved be remitted to the Supreme Court of New South Wales. Such action may enable steps to be taken that will allow the prosecution of an appeal concurrently with the consideration of the reserved questions. In addition to considerations of expedition and convenience which support a remitter, support for that course is also to be gained from the fact that even if the matter ultimately falls to be resolved by this Court it is of great importance that this Court should have the benefit of the considered opinion of a Full Court of the Supreme Court on the questions involved.

31. For the reasons we have given we have decided that:

(i) section 43 of the Crimes Act applies in respect of committal proceedings with respect to indictable offences against the laws of the Commonwealth conducted by a magistrate appointed under the Justices Act 1902 (N.S.W.), as amended; and

(ii) in relation to such committal proceedings s.43 of the Crimes Act, and s.68 of the Judiciary Act are valid laws of the Commonwealth, and s.85E of the Crimes Act was, prior to its repeal, a valid law of the Commonwealth,

and we have ordered under s.44 of the Judiciary Act that the reserved questions be remitted to a Full Court of the Supreme Court of New South Wales.

Orders

In the cause removed under s.40 of the Judiciary Act,

determine that:

(i) section 43 of the Crimes Act applies in respect of committal proceedings with respect to indictable offences against the laws of the Commonwealth conducted by a magistrate appointed under the Justices Act 1902 (N.S.W.), as amended;

(ii) in relation to such committal proceedings s.43 of the Crimes Act and s.68 of the Judiciary Act are valid laws of the Commonwealth, and s.85E of the Crimes Act was, prior to its repeal, a valid law of the Commonwealth.

Remit the questions reserved under s.72 of the Judiciary Act to a Full Court of the Supreme Court of New South Wales.