Saffron v The Queen

[1953] HCA 51

Not Fo/I Not Foil

MeUifont v

MeUifont v A -G tO ld)

ACrimR 256(iwifsr

88 C.L.R.] OF AUSTRALIA.

523

[HIGH COURT OF AUSTRALIA.]

SAFFRON

A p p l ic a n t

A N D

THE QUEEN

.

R e s p o n d e n t .

High Court—Appeal—Jurisdiction— Court of Criminal Appeal— Question reserved

H. C. OF A.

—The Constitution (63 & 64 Viet. c. 12), s. 73 {ii).— Criminal Appeal Act

1953.

1912-1951 (A'.N.IF.) {No. 16 of 1912—iVo. 31 of 1951), «. 6a (2) (a).

Sy d n e y ,

Section 5a (2) (a), (b), (c) and (d) of the Criminal Appeal Act 1912-1951 (N.S.W.) is as follows ;—“ 5a (2) (a) The judge or chairman of quarter sessions

Sept. 7.

Dixou C.J., Kitto and

before whom any person is tried and acquitted shall, if so requested by

counsel for the Crown upon or after the conclusion of the trial, reserve for

Taylor j r j .

decision by the Court of Criminal Appeal any question of law arising at or in connection with the trial. No such request shall be made without the written consent of the Attorney-General, (b) The question reserved shall be referred by the judge or chairman to the Court of Criminal Appeal for decision, together with a statement of the circumstances out of which such question arose or such further statement as the Court of Criminal Appeal may require, (c) The Court of Criminal Appeal shall have power to determine the question reserved, (d) The determination by the Court of Criminal Appeal of the question reserved shall not in any way affect or invalidate any verdict or decision given at the trial.”

A decision of the Court of Criminal Appeal given on questions reserved under s. 5a (2) has effect only as a judicial precedent and is not a decree judgment order or sentence within the meaning of s. 73 of the Constitution from which an appeal may be brought to the High Court.

A p p l ic a t io n for special leave to appeal from the Court of Criminal

Appeal of New South Wales.

Abraham Gilbert Saffron was on 15th December 1952 indicted at the Central Criminal Court, Sydney, upon a charge of knowingly giving false testimony at a Royal Commission under the Royal Cowimissions Act 1923-1934 (N.S.W.).

On 18th December 1952 the trial judge, McClemens J., rejected certain essential evidence tendered by the Crown, and following this rejection directed the jury to acquit the accused. The jury then returned a verdict of not guilty.

524

HIGH COURT

[1953.

̂ On 13th March 1953, McClemens J., on the application of the (h'own, and with the consent of the Attorney-General, ordered that Sakkuon pertain (|ii(‘,stions of law which arose out of or in connection with

r.

the chaa'f̂ e upon which the accused had been accpiitted, be reserved

1 UK

QuhhN.

[)y

(jf Criminal Appeal.

On 22nd and 23rd June 1953 the Court of Criminal Appeal {Street C.J., Owen and Herron JJ.) heard argument and delivered judg?ne?its in which certain of the questions reserved were answered. Salfron then applied to the High Court for special leave to appeal

against the answers given by the Court of Criminal Appeal.

Sir Garfield Barwick Q.C. (with him W. N. McDonald), for the applicant. The reference of the questions of law, together with the statement of circumstances, by the judge to the Court of Criminal Appeal was something in the nature of a stated case.

[D ix o n C.J. referred to In re Knight & Tabernacle Perwwient

Building Society (1).]

That case, and Ex parte Dawes ; Re Moon (2), was discussed in Federated Engine-Drivers and Firemen’s Association of Australasia

V.  Broken Hill Pty. Co. Ltd. (3).

L. C. Badham Q.C. (with him E. G. Whitlam and A. F. Mason), for the respondent, took a preliminary point. What is sought to be appealed from is not a judgment, decree, order or sentence within the meaning of s. 73 of the Constitution. Before sub-s. (2) of s. 5a of the Criminal Appeal Act 1912-1951 can operate there must be an acquittal. The question is very wide, or the section is wide. I t seems to indicate that the Court of Criminal Appeal is clothed with jurisdiction, if the Court chose to exercise it, to deal with any question at all, whether it was a question which resulted in acquittal or operated actively in securing an acquittal, so long as it arose at or in connection with the trial. I t is then referred to the Court of Criminal Appeal for decision. The word “ decision ” as there used is not such a strong term as the term “ hear and determine ” used in, e.g. the Judiciary Act

1903-1950. The applicant is requesting this Court to exercise

something which does not amount to an exercise of judicial power. I t is clear from sub-s. (2) (a) of s. 5a of the Criminal Apjwal Act that any question of law which arises at the trial, however remote it may be, may be reserved ; having been reserved, the question or questions may be answered by the Court of Criminal Appeal;

(1) (1892) 2 Q.B. 613.

(3) (1913) 16 C.L.R. 245, at }»p. 266,

(2) (1886) 17 Q.B.D. 275.

267.

88 C.L.R.] OF AUSTRALIA.

525

having been answered, they do not affect the verdict or decision

A-

given at the trial. They have not any operative force at all.

They may merely amount to a consultative opinion. The word gAPFjiojj

“ matter ” , which is a wider word than “ decision ”, was discussed

v. .

in In re Judiciary and Navigation Acts (1).

I t is there indicated "tuE Quee^.

that in the opinion of that court the Avord “ matter ” connoted many other things—a legal right which was to be determined, and, having been determined, the determination was operative upon that right. If the word “ matter ” even as used in s. 76 of the Constitution can be considered, as a result of that decision, to connote something which is enforceable inter partes, so much more should the effect of that decision be attached to the words “ judgments, decrees, orders or sentences ” in s. 73. What is involved must be not merely an expression of law in the abstract; it must be something inter pa,rtes, something the result of which affects the rights of some person or some body and is enforceable. The definition of “ judicial power ” by Griffith C.J. in Huddart Parker A Co. Pty. Ltd. v. Moorehead (2) was referred to with approval by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (3). The word “ appeals ” as used in s. 73 means appeals in the sense that there is in existence some judgment, decree, order or sentence, whereby someone’s rights are being imperilled. The whole of the general tenor of the cases, e.g. Ex parte Coorey (4) ; Rola Co. {Aust.) Pty. Ltd. v. The Commonwealth (5) and Shell Co. of Australia Ltd. v. Federal Commissioner of Taxa­ tion (6), is that judicial power, therefore judgments, decrees, orders and sentences from Avhich an appeal lies to a superior court, must mean the exercise of a jurisdiction which has an effect upon a person. In other proceedings the answers to the reserved questions Avould only be persuasive precedents, they Avould not affect the rights of any party, and would not be binding upon any court.

[Taylor J. referred to Sun Life Assurance Co. of Canada v.

Jervis (7).]

In In re Knight & Tabernacle Permanent Building Society (8) the word under consideration was “ opinion ” and not “ decision ”. There is nothing more than an opinion of the Court because there are not any parties, no one is involved ; no one has any rights affected ; see also Ex parte Chinery ; Re Chinery (9). The Court

(1) (1921) 29 C.L.R. 257, at pp. 265­

(5) (1944) 69 C.L.R. 185.

266.(6) (1931) A.C. 275 ; 44 C.L.R. 5.30.

(2) (1909) 8 C.L.R. 330, at p. 357.(7) (1944) A.C. 111.

(3) (1931) A.C. 275, at ]3p. 295-296;

(8) (1892) 2 Q.B. 613.

■14 C.L.R. 630, at p. 542.

(9) (1884) 12 Q.B.D. 342, at p. 345.

(4) (1944) 45 S.R. (N.S.W.) 287 ; 62

W.N. 167.

52G HIGH COURT

[1953.

H.0, or A, of Criminal Appeal was only required to give what is nothing more

1953.than an opinion as to whether or not in this particular instance

the evidence was rightly rejected. An appeal does not lie to this

Saffron

Court on such an opinion.

T he

Q u e e n .

Sir (kirfidd Barwick Q.C., in reply. The applicant agrees that the (lucstion is whether there is a judgment so as to come within the appellate power of this Court. He is not faced with the difficulties tJiat have arisen in other ca.ses. Here there has been a proceeding and that proceeding is kept alive for the purpose of the reference to the Court of Criminal Appeal. The matter comes to that court intituled in the same way as the matter in which the applicant was acquitted. The question to be decided is whether there is here a judgm ent; not whether there is here a judgment which is formative or determinative of some right of the applicant, because it is conceded that the precise question answered by the Court can never arise again, that is whether a section of the transcript in a particular trial was admissible. The presence of the word “ decision ” and the words “ power to determine ” is indicative of the view that a judgment is to resu lt: see In re Knight & Tabernacle Permanent Building Society (1) where a distinction was drawn by Lord Esher between that case and Ex parte Dawes ; Re Moon (2).

[D ixon C.J. referred to Tata Iron <h Steel Co. Ltd. v. Bombay Chief

Revenue Authority (3).]

The “ decision ” referred to in s. 5a (2) (e) of the Criminal Appeal Act 1912-1951 (N.S.W.) is a decision of the Court of Criminal Appeal. The elements (i) that there is a proceeding kept on foot so that this reference can take place out of i t ; (ii) the section referring to persons charged or affected by the decision of the Court of Criminal Appeal; and (hi) the parties represented show something in the nature of a proceeding inter partes. I t is a judicial function that

is on foot.

What results when it is sent for decision with power to

determine is a judgment. The judgment does not bind either the applicant or any subsequent court. In Rajah Tasadduq Rasul Khan v. Manik Chard (4) the word “ decision ” was treated as equivalent to “ decree ” . See also De Silva v. Attorney-General for Ceylon (5). If the Court be of the view that the presence of the words “ decision ” and “ determine ” in s. 5a (2) are strong enough in the circumstances to make it a judgment, the submission is that

(1) (1892) 2 Q.B. 613.(4) (1902) 30 Ind. App. 35.

(2) (1886) 17 Q.B.D. 275.(5) (1949) W.N. (Eng.) 248.

(3) (1923) 39 T.L.R. 288.

88 C.L.R.] OF AUSTRALIA.

527

one is not affected in this case by the further consideration that it

H. C. OF A.

cannot be said that that judgment determines precise rights, and

1953.

does no more than operate as a precedent.

Saffkon

V.

T h e

Qu e e n .

The following judgments were delivered :— was tried, pursuant to an application made to him under s. 5a (2) of the Crimiml Appeal Act 1912-1951 (N.S.W.), reserved questions said to be questions of law for the Court of Criminal Appeal. The pro­ vision to which I have referred, s. 5a of the Criminal Appeal Act, is of a novel description. By par. (a) of sub-s. (2) it requires a judge, at the request of the Attorney-General, to reserve for decision by the Court of Criminal Appeal questions of law arising at or in connection with a trial at which there has been an acquittal and the Court of Criminal Appeal is then to have power to determine the questions reserved. But par. (d) of sub-s. (2) says that the deter­ mination by the Court of Criminal Appeal of the questions reserved shall not in any way affect or invalidate any verdict or decision given at the trial. The person charged at the trial and acquitted may be represented at the hearing by the Court of Criminal Appeal of the questions reserved, and if he is not represented the Attorney- General may instruct counsel to argue on his behalf. There are provisions requiring the proceedings to be conducted in camera and protecting the person from publication of the result.

D ix o n C.J. The applicant was tried upon an indictment under

s. 21 of the Royal Commissions Acts 1923-1934 (N.S.W.) and

acquitted. Another indictment appears to be pending based on

evidence given by him under the same oath before the Royal

Among the questions which were reserved was one, No. 9, inquiring whether the whole or any part of the evidence given by the accused before the commission was rendered inadmissible by certain matters which the question then particularizes. That evidence was rejected at the trial. The Court of Criminal Appeal decided question 9 by saying the evidence ivas admissible, or, at all events, was not rendered inadmissible by reason of those matters. The applicant, who was acquitted in the manner described, now seeks special leave to appeal from that decision, and the question for us is whether it is an appealable matter.

Our jurisdiction to entertain appeals is one conferred by s. 73 of the Constitution, and it is a jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a number of tribunals. When a court is authorized by legislation to give an advisory opinion, no matter what language is used, its opinion is

528 HIGH COURT

[1953.

ir. C. OK A. jiulgmont, decree, order or sentence from which an appeal

IDf),'!. lies. Various statutes have provided for raising questions by a S afkk oncase stated, in such a way as to make it difficult to know whether

V.the result of the determination of the questions so raised is advisory

'I’llH (.^II10UN.or not.

The [)resent section raises that question in an unprecedented

Di.xoii ( '..r.form. I t is ((uite definite in providing that the determination by

the Court of Criniinal Appeal of the question reserved shall not in any way alfcct or invalidate any verdict or decision given at the trial. The acipiittal must therefore remain undisturbed. I t does, however, ii.se the expression “ reserve the question for decision ”, and it does use the expression “ determine ” ; but it is apparent that these expressions cannot be directed to the determination of any rights or liabilities which are to be litigated or affected. The rights and the lialiilities involved in the charge have already been determined. The acquittal of the person has determined that he is not guilty, and that determination is to remain entirely unaffected. I think that there can be no question that the decision of the Court of Criminal Appeal under sub-s. (2) of s. 5 a cannot affect the rights of the person who has been acquitted, or his liabilities. I t can operate only'as a judicial precedent, having at best the effect which in English jurisprudence is afforded to the decisions of a court as precedents. That is an entirely different thing from binding a right or creating a liability, or precluding a penson who asserts a right or denies a liability.

I think the applicant in the present case is not affected in respect of his rights or liabilities by the determination. At most he is, like any other of the Queen’s subjects, liable to have the decision cited again.st him as evidence of what is the state of the law. In those circumstances I am of opinion that the decision on the case stated in relation to question 9 is not appealable, and that special leave should be refused.

K itto J. I agree.

Taylor J. I agree.

Special leave to appeal refused.

Solicitors for the applicant, Shatv, McDonald <£• Co.

Solicitor for the respondent, F. P. McRae, Crown Solicitor for

New South Wales.

J. B.