Rohde v Director of Public Prosecutions

[1986] HCA 50

HIGH COURT OF AUSTRALIA

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

ROHDE v. DIRECTOR OF PUBLIC PROSECUTIONS

(1986) 161 CLR 119

26 August 1986

Criminal Law

Criminal Law—Offence against law of Commonwealth—Trial in State court—Appeal against sentence by delegate of Commonwealth Director of Public Prosecutions—Competency—Judiciary Act 1903 (Cth), s. 68(2)—Director of Public Prosecutions Act 1983 (Cth), ss. 9(7), 31—Crimes Act 1958 (Vict.), s. 567A—Acts Interpretation Act 1901 (Cth), s. 34A.

Decisions

GIBBS C.J., MASON and WILSON JJ.: Each of these applications for special leave to appeal raises two questions of substance touching the competence of an appeal instituted in each case by a delegate of the Director of Public Prosecutions (Commonwealth) ("the Director") against the sentence imposed upon the applicant following his conviction in Victoria for an offence against the laws of the Commonwealth. The first question is whether the Director himself has a right of appeal. The second is whether, if he has, that right may be exercised by a delegate. In each case both of these questions were answered in the affirmative by the Full Court of the Supreme Court of Victoria and it is from those decisions that the present applications are brought.

2. The Director of Public Prosecutions Act 1983 (Cth), as amended, ("the Act") establishes an Office of the Director of Public Prosecutions. The Act does not confer in express terms any right of appeal on the Director. Section 6(1) provides that the functions of the Director are, inter alia, to institute and to carry on prosecutions on indictment for indictable offences against the laws of the Commonwealth. Section 9 outlines the powers of the Director. So far as material it reads:

"9.(1) For the purposes of the performance of

his functions, the Director may prosecute by indictment in his official name indictable offences against the laws of the Commonwealth, but nothing in this sub-section prevents the Director from prosecuting an offence against a law of the Commonwealth in any other manner.

(2) Where the Director institutes a

prosecution on indictment for an offence against a law of the Commonwealth, the indictment shall be signed -

(a) by the Director; or

(b) for and on behalf of the Director, by a person authorized by the Director, by instrument in writing, to sign indictments.

...

(7) Where the Director has instituted or

taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him otherwise than under this sub-section, such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution.

(8) Nothing in sub-section (7) prevents the

exercise by the Attorney-General of a right of appeal that, but for that sub-section, would be exercisable by the Attorney-General".

3. It will be seen that the provisions of s.9(7) are of critical importance to the first question. By virtue of that subsection the Director may exercise such rights of appeal (if any) as are exercisable by the Attorney-General of the Commonwealth in respect of that prosecution. It has been established that s.68(2) of the Judiciary Act 1903 (Cth), as amended, operates upon s.5D of the Criminal Appeal Act 1912 (N.S.W.), as amended, so as to give the Attorney-General of the Commonwealth a right of appeal against a sentence pronounced by the Supreme Court of New South Wales in the exercise of the criminal jurisdiction of that Court upon the conviction of a person charged with an offence against a law of the Commonwealth: Peel v. The Queen (1971) 125 CLR 447; Reg. v. Carngham (1978) 140 CLR 487. Section 5D provides that the Attorney-General of the State of New South Wales may appeal to the Court of Criminal Appeal against any sentence pronounced, inter alia, by the Supreme Court. No special formalities are required of such an appeal.

4. A provision comparable to s.5D of the New South Wales Act appears in s.567A of the Crimes Act 1958 (Vic.), as amended, although its exercise is attended with greater formality. So far as material, the section provides:

"(1) Where a sentence is passed on a person

convicted on indictment ... and the Director of Public Prosecutions considers that a different sentence should have passed and is satisfied that an appeal should be brought in the public interest the Director of Public Prosecutions, on behalf of Her Majesty, may appeal to the Full Court against the sentence passed on the conviction unless the sentence is one fixed by law.

...

(2) Where the Director of Public Prosecutions

desires to appeal to the Full Court under sub-section (1) he shall cause notice of appeal setting forth the grounds thereof to be given to the respondent by serving upon him notice in writing signed by the Director of Public Prosecutions personally of his intention to appeal to the Full Court pursuant to the provisions of this section and setting forth the grounds of the appeal".

It is necessary then to consider the operation of s.68(2) of the Judiciary Act in relation to s.567A of the Crimes Act. In the application of the former provision "the adoption of State law must proceed by analogy" (Williams v. The King (No. 2) (1934) 50 CLR 551, at p 561, cited by Gibbs J., as he then was, in Peel, at p 469). In the absence of an express power conferred on the Director with respect to appeals, the appropriate analogy to the Victorian Director of Public Prosecutions is the Attorney-General of the Commonwealth. Section 567A confers the right of appeal on the Director of Public Prosecutions because he is the proper officer in that regard to represent the State. Section 68(2) when applied to s.567A has the effect of conferring a right of appeal on the Attorney-General of the Commonwealth because, in the absence of any express statutory provision, he is the proper officer to represent the Commonwealth: Peel, per Gibbs J. at p.469.

5. Once it be seen that the effect of s.68(2) of the Judiciary Act in pursuance of its established operation is to invest the Attorney-General of the Commonwealth with a right of appeal under s.567A of the Crimes Act, the stage is set for s.9(7) of the Act to operate so as to vest that same right of appeal in the Director. The first question must therefore be answered against the applicants.

6. We turn then to the question of delegation. Section 31 of the Act provides as follows:

"(1) The Director may, either generally or as

otherwise provided by the instrument of delegation, by writing signed by him, delegate to a member of the staff of the Office all or any of his powers under this Act, other than his powers under sub-section 9(2) and this power of delegation.

(2) A power so delegated, when exercised by

the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Director.

(3) A delegation under this section does not

prevent the exercise of a power by the Director".

It is contended for the applicants that the effect of s.567A is such that only the analogous officer, in these cases the Director, can exercise the right of appeal because that right is predicated upon matters that are personal to him. He himself must consider that a different sentence should have passed and must be satisfied that an appeal should be brought in the public interest. Furthermore, the notice of appeal must be in writing signed personally by the Director. It seems to us that the express authority to delegate conferred on the Director by s.31 is sufficient to answer this contention. The power to bring an appeal which is derived by the Attorney-General of the Commonwealth through s.68(2) of the Judiciary Act and which is invested in the Director by s.9(7) of the Act is a power which carries with it the conditions imposed upon its exercise. The bare power cannot be separated from those conditions, with the consequence that if the power itself is delegated then it is for the delegate to fulfil the conditions imposed upon its exercise. When exercised by the delegate, the power is deemed to have been exercised by the Director (s.31(2)). But it is not necessary for us to express a concluded view upon that question because s.34A of the Acts Interpretation Act 1901 (Cth), as amended, places the matter beyond doubt. That section reads:

"Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter".

It follows, in our opinion, that the authority of the Senior Deputy Director of Public Prosecutions as delegate of the Director to exercise the right of appeal in each of these cases is not open to attack.

7. An objection was taken to the form of two of the notices of appeal but this Court does not grant special leave to consider mere matters of form. In each case we would refuse special leave to appeal from the decision of the Full Court.

BRENNAN J.: In Williams v. The King (No.2) (1934) 50 CLR 551, this Court considered the operation of s.68(2) of the Judiciary Act 1903 (Cth) upon s.5D of the Criminal Appeal Act 1912 (N.S.W.). Section 5D conferred on the Attorney- General for New South Wales a right of appeal to the Court of Criminal Appeal against sentences imposed upon persons convicted of offences against the laws of the State. The question was whether s.68(2) operated to confer a like right of appeal on the Attorney-General for the Commonwealth against sentences imposed upon persons convicted of offences against the laws of the Commonwealth. The Court was evenly divided in that case but the view which has now prevailed (see Peel v. The Queen (1971) 125 CLR 447; Reg. v. Carngham (1978) 140 CLR 487, at pp 490,499) was that of Dixon J. who said (at pp 561-562):

" The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When sec.68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,' it recognizes that the adoption of State law must proceed by analogy. The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General. I do not feel any difficulty in deciding that, under the word 'like' in the expression 'like jurisdiction,' the functions under sec. 5D of the State Attorney- General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws of the Commonwealth."

Mutatis mutandis, that passage applies to the operation of s.68(2) on s.567A(1) of the Crimes Act 1958 (Vic.). The right of appeal against sentence conferred by s.567A(1) upon the Director of Public Prosecutions for Victoria in the case of State offenders is, by force of s.68(2), conferred on the Attorney-General for the Commonwealth as the proper officer to represent the Commonwealth in the case of offenders against the laws of the Commonwealth: Reg. v. O'Keefe (1979) VR 1, at p 3.

2. Section 567A(2) of the Crimes Act prescribes the procedure to be followed by the Director of Public Prosecutions in exercising the right of appeal conferred by s.567A(1). Upon such a provision s.68(2) has no operation. When s.68(2) confers jurisdiction on State Courts of Criminal Appeal to entertain appeals against sentences imposed on offenders against the laws of the Commonwealth, it necessarily confers a right of appeal on the proper officer of the Crown in right of the Commonwealth to commence and prosecute the appeal (see per Gibbs J. in Peel, at p.469) but it does not purport to apply to that officer the provisions of the State Act which prescribe the procedure to be followed by the State officer in exercising his power with respect to State offenders. Section 68(2), by analogy with the State law, identifies the repository of the power to invoke the federal jurisdiction which it confers, but s.68(2) does not limit the jurisdiction or qualify the power to invoke it by applying to the federal officer the procedural requirements binding by virtue of the State law on the repository of the power to invoke the State jurisdiction.

3. The right of appeal against sentence conferred by s.68(2) on the Attorney-General for the Commonwealth is exercisable by the Director of Public Prosecutions of the Commonwealth by force of s.9(7) of the Director of Public Prosecutions Act 1983 (Cth) ("the Act"). As the right of appeal conferred on the Attorney-General for the Commonwealth is unqualified by procedural requirements analogous to those contained in s.567A(2), the right of appeal conferred on the Director of Public Prosecutions of the Commonwealth by s.9(7) of the Act is not qualified by any such requirements.

4. The right of appeal conferred by s.9(7) carries the power to do what is necessary for its exercise: to sign a notice of appeal, to file and to serve such a notice and to prosecute the appeal. The powers thus conferred on the Director of Public Prosecutions have been delegated by him pursuant to s.31(1) of the Act. As the right of appeal conferred on him by s.9(7) is not qualified by requirements analogous to those contained in s.567A(2), the powers which he delegates are not so qualified. Some exception was taken to the form of the notices of appeal in the present cases, each of which was signed by a delegate in his own name describing himself as "delegate of the Director of Public Prosecutions". That description did not fit well with a recital in two of the notices that the Director of Public Prosecutions himself had formed the opinion prescribed by s.567A(2). But that recital was mere surplusage and each notice clearly showed that the power to commence the appeal was being exercised by the delegate who signed the notice. Special leave should be refused in each case.

DEANE J.: A statutory conferral of a prosecution power of appeal against the sentence passed by a trial court upon a person convicted of a criminal offence has been rightly described as "a marked departure from the principles theretofore governing the exercise of penal jurisdiction" (per Dixon J., Williams v. The King (No. 2) (1934) 50 CLR 551, at p 561) and as cutting across "time-honoured concepts of criminal administration" (per Barwick C.J., Peel v. The Queen (1971) 125 CLR 447, at p 452). Such a prosecution appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J., Whittaker v. The King (1928) 41 CLR 230, at p 248). "The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court" (Reg v. Tait (1979) 46 FLR 386, at p 389). A conferral of such a prosecution right of appeal infringes the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice in a manner comparable to a conferral of a prosecution right of appeal against a trial acquittal (cf. Reg. v. Holder (1983) 3 NSWLR 245, at pp 255-256, 269-270). As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language (cf. Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397; Davern v. Messel (1984) 58 ALJR 321; 53 ALR 1). That would be so even if the view were taken that, contrary to what is said above, the rationale of the rule against double jeopardy should be seen as confined to the determination of guilt or innocence to the exclusion of the question of quantification of punishment (see Friedland, Double Jeopardy (1969), pp 289-291; United States v. DiFrancesco (1980) 449 US 117 (66 Law Ed 2d 328)) since that established principle of construction extends to require clear and unambiguous words before a statute will be construed as effecting, to the detriment of the subject, any fundamental alteration to the common law principles governing the administration of justice.

2. Obviously enough, the Victorian Parliament was not unconscious of the fundamental departure from traditional practice in that State involved in the enactment in 1970 of s.567A of the Crimes Act 1958 (Vict.). In its original form, that section conferred jurisdiction upon the Full Court of the Supreme Court of Victoria to entertain an appeal against a sentence passed on a person convicted on indictment and conferred the power or authority to invoke the jurisdiction upon the State Attorney-General. The section indicated, in clear terms, that the Attorney-General's power to invoke the jurisdiction was not to be delegated. It was to exist only in a case where the Attorney-General himself considered "that a different sentence should have been passed" and was himself "satisfied that an appeal should be brought in the public interest". This confinement of the power of appeal against sentence to the case where the designated recipient of it was himself satisfied that "the public interest" required that a prosecution appeal against sentence be brought ensured that the general considerations of ordinary fairness which militate against such an appeal should be weighed at the highest level against the considerations supporting an appeal in the circumstances of the particular case. The power continued to be similarly confined when, by subsequent amendment, the Victorian Director of Public Prosecutions ("the Victorian Director") was substituted for the State Attorney-General as the designated recipient of it. Moreover, both in its original form and as subsequently amended, s.567A has underlined the non-delegable nature of the power of appeal which it confers by requiring (sub-s.(2)) that notice of appeal setting forth the grounds thereof be given to the respondent "by serving upon him notice in writing signed by the Director of Public Prosecutions (originally the Attorney-General) personally ...". It is well settled that the requirement that a notice of appeal be signed personally excludes signature by an agent or delegate (see, generally, Motel Marine Pty. Ltd. v. I.AC (Finance) Pty. Ltd. (1964) 110 CLR 9, at p 13).

3. Were it not for the decision of this Court in Peel, there would be much to be said for the view that the general provisions of s.68(2) of the Judiciary Act 1903 (Cth) should not, upon proper principles of statutory interpretation, be construed as disclosing a legislative intent to infringe traditional common law principles by operating upon s.567A of the Victorian Crimes Act so as to empower an appropriate officer of the Commonwealth to institute an appeal to the Full Court of the Supreme Court of Victoria against a sentence pronounced on a person convicted on indictment of an offence against a law of the Commonwealth. It is, however, plain that the effect of the decision in Peel is that the provisions of s.68(2) must, presumably because of their special character as provisions adopting the statutory laws of the States (see below), be construed as having that effect. They operate, by analogy, upon s.567A so as to confer upon the holder of the Commonwealth office analogous to that of the Victorian Director a like power of appeal in relation to a sentence imposed upon conviction of a Commonwealth offence to that enjoyed by the Victorian Director in relation to a sentence imposed upon conviction of a State offence. Indeed, it was not submitted to the contrary on behalf of the applicants in the present case. The applicants' argument assumed that, but for the establishment of the office of the Commonwealth Director of Public Prosecutions ("the Commonwealth Director") by the Director of Public Prosecutions Act 1983 (Cth) ("the Commonwealth Act"), the Attorney-General of the Commonwealth would have had a statutory power to initiate an appeal against the sentence which had been imposed upon each of the applicants on conviction of an offence against a law of the Commonwealth and that such a power of appeal could now be exercised by the Commonwealth Director in respect of a prosecution which he "has instituted or taken over, or is carrying on, ... for an offence against a law of the Commonwealth" (s.9(7) of the Commonwealth Act). What the applicants dispute is that the exercise of that power, which is so carefully confined by State law to the Victorian Director himself, can be delegated by the Commonwealth Director to any member, however junior, of his staff with the consequence that the Commonwealth Director is not required to form any view for himself about whether the sentence imposed is inadequate or whether, on balance, the public interest requires that an appeal be brought.

4. It will subsequently be necessary to consider whether the power of the Commonwealth Director to appeal against the sentence imposed upon each of the applicants should properly be seen as remaining a power of the Commonwealth Attorney-General which can also be exercised by the Commonwealth Director pursuant to the express provisions of s.9(7) of the Commonwealth Act or whether it is more properly to be seen, in cases such as the present where the prosecution was instituted or taken over by the Commonwealth Director, as conferred upon the Commonwealth Director as the appropriate officer of the Commonwealth by the direct operation of s.68(2) of the Judiciary Act. Regardless of which of those alternative views be correct, that power of the Commonwealth Director is a statutory one enjoyed by him as the holder of that particular office. As such, it can only be exercised by the Commonwealth Director himself (or, presumably, a person acting in the office during vacancy or absence) as the person to whom it has been entrusted by the Parliament unless the Parliament has indicated, either expressly or by necessary implication, an intention that he may delegate it. No such intention can be discerned in the provisions of s.68(2) of the Judiciary Act or s.9(7) of the Commonwealth Act and, as has been seen, s.567A of the Crimes Act (Vict.) makes it clear beyond argument that the power to institute an appeal against sentence was one that could only be exercised personally by the designated recipient of it. In these circumstances, the essential question involved in these applications is whether the general provisions of s.31(1) of the Commonwealth Act are properly to be construed as authorizing the Commonwealth Director to delegate to a member of his staff the statutory power conferred upon him by the operation of Commonwealth legislative provisions upon s.567A.

5. Section 31(1) of the Commonwealth Act provides:

"The Director may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a member of the staff of the Office all or any of his powers under this Act, other than his powers under sub-section 9(2) and this power of delegation."

For the applicants, it was submitted that the general terms of that sub-section should not be construed as applicable to the power to appeal against sentence which was plainly intended to be confined to the designated recipient of it. For the Commonwealth Director, it was submitted that the effect of the general words of that sub-section was that the power to appeal against sentence could be exercised by any member of his staff named in a general instrument of delegation of his powers under the Commonwealth Act.

6. The starting point of a consideration of those conflicting submissions must be the settled principle that a statutory provision is not to be construed as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights or immunities except to the extent that it uses words that point clearly and unambiguously to a legislative intent in that regard. Conformably with that settled principle, where a statutory power infringes the traditional common law rules of administration of criminal justice to the disadvantage of the subject but mitigates the infringement by the erection of statutory safeguards, another statutory provision should not be construed as abolishing or weakening those safeguards in the absence of a clear and unambiguous legislative intent to achieve such an effect. That being so, the general provision of s.31(1) of the Commonwealth Act permitting delegation should not, in the absence of a clear and unambiguous legislative intent in that regard, be construed as demolishing or diminishing by a sidewind the statutory safeguards contained in s.567A of the Crimes Act (Vict.) and caught up by s.68(2) of the Judiciary Act, namely, that the power to appeal against sentence can only be exercised by the designated statutory recipient of the power personally and then only in a case where he is satisfied that, in all the circumstances, such "an appeal should be brought in the public interest". The general words of s.31(1) authorizing delegation of all or any of the Commonwealth Director's powers under the Act are plainly inadequate to evidence a clear and unambiguous legislative intent to deprive a person sentenced on conviction on indictment in Victoria of an offence against a law of the Commonwealth of the safeguard that he is not to be subjected to the renewed jeopardy of an appeal on the grounds of the inadequacy of the sentence imposed at the trial unless the Commonwealth officer analogous to the Victorian Director has considered the matter and is personally satisfied that the particular appeal should be brought in the public interest. To the contrary, a consideration of the source and nature of the Commonwealth Director's power of appeal against sentence makes it plain that the words of s.31(1) can readily and sensibly be construed as not extending to it. I turn to explain why that it so.

7. The question whether the Commonwealth Attorney-General enjoyed a power of appeal against sentence by reason of the effect of the operation of s.68(2) of the Judiciary Act upon s.5D of the Criminal Appeal Act 1912 (N.S.W.), which was ultimately resolved in Peel, first directly arose for decision in this Court in Williams (No. 2). When the last-mentioned case was before the New South Wales Court of Criminal Appeal (Rex v. Williams; Rex v. Somme (1934) 34 SR (NSW) 143), it was held that, through the operation of s.68(2) of the Judiciary Act upon s.5D of the State Act, the Commonwealth Attorney-General enjoyed a power or authority to appeal to that court against a sentence imposed on conviction of an offence against a law of the Commonwealth in a case where the State Attorney-General would have enjoyed such a right of appeal if the offence had been against a law of the State. In the course of his judgment, Jordan C.J. (in whose judgment Street J. and Maxwell A.J. concurred) explained why the repository of the implied statutory power to appeal against a sentence imposed upon conviction of a Commonwealth offence was the Commonwealth Attorney-General. His Honour said (at p.152):

"...I think that by s.5(D) (sic) the right of appeal is given to the Attorney-General of New South Wales in the character of the person responsible for the indictment; just as the right of appeal is given to the person convicted on the New South Wales indictment in the character of the person damnified by the conviction. I am of the opinion therefore that by virtue of the combined operation of s.68(2) of the Judiciary Act, 1903-1932, and of ss.5 and 5(D) (sic) of the Criminal Appeal Act of 1912, an appeal may be maintained to this Court, to the extent indicated in the latter sections, by the parties concerned in the conviction, that is to say by the person convicted on indictment on the one hand and by the Attorney-General of the Commonwealth as representing the Crown on the other."

When Williams (No. 2) came before this Court on an application for special leave to appeal, the Court was equally divided on the question whether the effect of the operation of s.68(2) of the Judiciary Act was that the Commonwealth Attorney-General possessed a power or authority to appeal to the State Court of Criminal Appeal against a sentence imposed upon conviction of an offence against Commonwealth law. Rich, Starke and Dixon JJ. concluded that he did. Gavan Duffy C.J., Evatt and McTiernan JJ. were of the view that he did not. The main judgment favouring the view which was subsequently to prevail in Peel was that of Dixon J. Rich J. (at p.558) expressed his agreement with the judgment of Jordan C.J. in the Court of Criminal Appeal while Starke J. indicated his concurrence in the reasoning of Dixon J. In the course of his judgment, Dixon J. (at pp.561-562) gave an explanation of the identification of the Commonwealth Attorney-General as the repository of the power, which closely corresponded with that which had been given by Jordan C.J. in the Court of Criminal Appeal:

"The New South Wales section gives the right of

appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When sec.68(2) speaks of the 'like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth,' it recognizes that the adoption of State law must proceed by analogy. The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General. I do not feel any difficulty in deciding that, under the word 'like' in the expression 'like jurisdiction,' the functions under sec.5D of the State Attorney-General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws of the Commonwealth."

8. The majority of the Court in Peel was constituted by Menzies, Windeyer, Owen and Gibbs JJ. The main judgments were those of Owen and Gibbs JJ. with both of whom Windeyer J. agreed. Plainly, all members of the majority adopted a similar approach to that which had been adopted by Jordan C.J. and Dixon J. to the question of the identification of the repository of the power to appeal against sentence which arose from the operation of s.68(2) of the Judiciary Act upon s.5D of the State Act. Owen J. expressed (at p.460) his agreement with the reasons which had been given by Jordan C.J. and Dixon J. Gibbs J. (at p.469) adopted Dixon J's comment (quoted above) that, in the application of s.68(2), "the adoption of State law must proceed by analogy" and continued:

"Section 5D of the Criminal Appeal Act gives the Attorney-General of the State a right of appeal because he is the proper officer to represent the State; s.68(2) in its operation on s.5D gives a right of appeal to the Attorney-General of the Commonwealth as the proper officer to represent the Commonwealth. The functions exercised by the Attorney-General of the Commonwealth are like functions to those of the Attorney-General of the State and the jurisdiction exercised by the Court of Criminal Appeal in hearing and determining an appeal by the Attorney-General of the Commonwealth against a sentence imposed for an offence against Commonwealth law is a like jurisdiction to that exercised by the Court of Criminal Appeal in hearing an appeal by the Attorney-General of the State against a sentence imposed for an offence against the law of the State."

9. The importance of the above analysis of the reasoning in judgments in Williams (No. 2) and Peel is that it clearly supports the view that, since the establishment of the office of the Commonwealth Director by the Commonwealth Act, the repository of the power to appeal against sentence conferred by the operation of s.68(2) of the Judiciary Act upon s.567A of the Crimes Act (Vict.) in a case where the Commonwealth Director has instituted or taken over the prosecution is the Commonwealth Director himself rather than the Attorney-General. In relation to such prosecutions, it is the Commonwealth Director, rather than the Attorney-General, who is properly to be characterized as "the person responsible for the indictment" (see Jordan C.J. supra). In relation to such prosecutions, "the functions" under s.567A of the Victorian Act of the Victorian Director "in the case of State offenders fall to" the Commonwealth Director "in the case of offenders against the laws of the Commonwealth" (see Dixon J. supra). In relation to prosecutions which he has instituted or taken over, the Commonwealth Director is now "the proper officer to represent the Commonwealth": the functions which he exercises in respect of such a prosecution "are like functions to those" of the Victorian Director (see Gibbs J. supra).

10. A consequence of the conclusion that the Commonwealth Director's power of appeal in the present case is conferred by the direct operation of s.68(2) of the Judiciary Act upon s.567A of the Victorian Act is that the words of s.31(1) of the Commonwealth Act are simply inapposite to confer authority upon the Commonwealth Director to delegate the exercise of that power of appeal to a member of his staff. The reason for that is that s.31(1) refers only to a delegation of the Commonwealth Director's "powers under this Act" (i.e. the Commonwealth Act). On that view of the effect of the operation of s.68(2), the Commonwealth Director's power of appeal against sentence in a case such as those now under consideration is not a power "under" the Commonwealth Act at all. It is a power arising under the Judiciary Act.

11. Even if, contrary to the foregoing, the view were taken that, notwithstanding the establishment of the office of the Commonwealth Director and the fact that the Commonwealth Director had instituted or taken over the prosecution in the present case, the repository of the relevant power of appeal remained the Attorney-General, the Commonwealth Director's power to institute such an appeal would be different in nature from his other powers under the Commonwealth Act. On that view, the source of any authority of the Commonwealth Director to appeal against sentence in the present case would lie in the provisions of s.9(7) of the Commonwealth Act which provides:

"Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him otherwise than under this sub-section, such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution."

The basis upon which the sub-section proceeds is that the rights of appeal to which it refers remain primarily those of the Attorney-General. The only authority which the sub-section confers upon the Commonwealth Director is authority to "exercise", in respect of a prosecution to which the sub-section refers, "such rights of appeal (if any) as are exercisable by the Attorney-General in respect of that prosecution" (emphasis added). Plainly, it is impossible to discern in the general reference in s.31(1) to "his (i.e. the Commonwealth Director's) powers under this Act" a clear and unambiguous legislative intent that the power of delegation conferred by the sub-section should extend to permit delegation of the limited authority conferred by s.9(7) to exercise the "rights of appeal ... exercisable by the Attorney-General in respect of" the relevant prosecutions.

12. There remains for consideration the question whether there is anything in the judgments in Williams (No. 2) or Peel which militates against the conclusion that s.31(1) does not authorize a delegation by the Commonwealth Director to a member of his staff of the power to appeal against sentence. Examination of the judgments in those cases discloses that there is not. To the contrary, such examination reveals support for the reasoning leading to such a conclusion in two distinct respects. First, Dixon J. in Williams (No. 2), at p.560 identified the general policy disclosed by s.68(2) of the Judiciary Act as being:

"... to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States."

That statement of the general policy of the sub-section was central to his Honour's reasoning which was subsequently endorsed by the judgments of the Justices who constituted the majority in Peel (see, in particular, Gibbs J. at p.468). It lends strong support for the view that the power of the Attorney-General or Director to appeal against sentence derived from the operation of s.68(2) upon s.567A should remain subject to safeguards analogous to those which s.567A expressly imposes upon the State Director of Public Prosecutions in the case of an appeal against the sentence passed upon conviction of a person charged with an offence against State law. Second, the judgment of Dixon J. in Williams (No. 2) also lends strong support for the view that the general words of s.31(1) should not be construed as demolishing or weakening the safeguards on the power to appeal against sentence derived from the operation of s.68(2). Having noted (at p.561) that an appeal against sentence constituted "a marked departure from the principles theretofore governing the exercise of penal jurisdiction", his Honour referred, with apparent approval, to the statement of Lord Birkenhead in Secretary of State for Home Affairs v. O'Brien (1923) AC 603, at p 610 to the effect that the general words of a statutory provision conferring rights of appeal should not be held to encompass a right of appeal from an order for discharge from custody made upon the return of a writ of habeas corpus, although expressed in terms sufficient to do so, because it could not be supposed "that a section couched in terms so general availed to deprive the subject of an ancient and universally recognized constitutional right". Dixon J. concluded, however, that "such a process of interpretation" should not be applied to s.68(2) of the Judiciary Act by reason of the special nature of that enactment as one "dealing with the existing and known provisions of a particular department of the statutory law of the States" which was to be distinguished as being "of a different order from general words which are not referential, but deal independently with the subject matter". The general words of s.31(1) are not referential. They deal independently with the general subject matter of the Commonwealth Director's power to delegate. That being so, the clear implication of Dixon J's comments is that the "process of interpretation" to which his Honour referred would be applicable to them.

13. It follows that, in accordance with settled principles of statutory interpretation, the departure from traditional common law principle involved in the conferral upon the Commonwealth Director (pursuant to s.68(2) of the Judiciary Act or pursuant to the combined operation of that sub-section and s.9(7) of the Commonwealth Act) of a power of appeal against sentence should not be exacerbated by a construction of the general words of s.31(1) in a way which would destroy the safeguards involved in the requirement that the power be exercised by the holder of (or person acting in) the office of Commonwealth Director personally and then only in a case where he is personally satisfied that an appeal should be brought in the public interest. That being so, the appeals to the Full Court of the Supreme Court of Victoria in the present cases which were purportedly instituted by a "delegate" of the Commonwealth Director acting on the "delegate('s)" assessment of the public interest were all incompetent.

14. There are three further matters which should be mentioned. The first is an additional argument which was advanced on behalf of the Commonwealth Director. As I followed it, this argument was to the effect that, even if s.31 did not itself authorize delegation of the power to appeal against sentence, it should be held that s.68(2) of the Judiciary Act operates upon s.567A of the Victorian Act to confer the power to institute an appeal against sentence directly upon anyone who might, at a particular time, happen to hold a general delegation under s.31 of the Commonwealth Act. It suffices to dispose of that argument to say that it should be apparent from what has been said that, quite apart from the problems involved in the fact that the scope of a delegation under s.31 is directly confined, by the express words of that section, to a delegation of the Commonwealth Director's power "under" the Commonwealth Act, it would be quite contrary to the established operation of s.68(2), by analogy, to hold that it operated to confer the equivalent of a non-delegable State power not only upon the analogous Commonwealth officer but upon any member of the staff of that Commonwealth officer who happened to be named in a general instrument of delegation pursuant to the general terms of some other legislative provision.

15. The second additional matter is that the Commonwealth Director placed particular reliance upon the provisions of s.34A of the Acts Interpretation Act 1901 (Cth) which provides:

"Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter."

That section is, however, only applicable to a case where the relevant power or function has been validly delegated "in pursuance of that Act" under which its exercise "is dependent upon the opinion, belief or state of mind" of the designated donee. It says nothing at all on the question whether a delegation of the particular power or function is permissible. As has been seen, there has not been a valid delegation in the present case for the reason that delegation was simply not authorized. In any event, for the reasons which have been given, the statutory source of the Commonwealth Director's powers of appeal in the present matters is to be found in the operation of s.68(2) of the Judiciary Act upon s.567A of the State Act and it could not be, and has not been, suggested that there has been any delegation "in pursuance of that Act".

16. The final additional matter is that it was submitted on behalf of the Commonwealth Director that special leave to appeal should, in any event, be refused for the reasons that the appeals would involve procedural questions of limited general importance and that even "if there cannot be a delegation then the Director can and will exercise the power personally". I am unable to discern any merit at all in that submission. As I have sought to make clear, the existence of a prosecution power to appeal against sentence constitutes an infringement of the ordinary common law right of the subject to be spared the renewed threat to liberty or property involved in such an appeal. A disregard of the requirement that any such appeal be brought by the Commonwealth Director personally and be founded upon his own personal assessment of what the public interest dictates is not, in my view, properly to be seen as being merely of a procedural nature. It should be seen as a disregard of a substantive safeguard of the freedom or property of a convicted person beyond the sentence imposed at the trial. In my view, it lies ill in the mouth of any government authority to seek to avoid the consequences of a disregard of the requirements of such a safeguard by the assertion that the result would have been or will be the same if those requirements had been observed in the past or are observed in the future. The function of this Court is to expose and follow the gleam of the law and it would be a sorry day for the rule of law in this country if speculation about what would have happened or might happen if the law were observed were thought to warrant a refusal to intervene to prevent the retention in prison of a citizen under a sentence imposed on an incompetent appeal.

17. In each case, I would grant special leave to appeal and allow the appeal, set aside the order made by the Full Court of the Supreme Court of Victoria sitting as the Court of Criminal Appeal and reinstate the sentence imposed by the trial judge.

Orders

Applications for special leave to appeal refused.