Smith v The Queen

[1994] HCA 60

HIGH COURT OF AUSTRALIA

MASON CJ, DEANE, DAWSON, GAUDRON AND McHUGH JJ

SMITH, FERGUSON, FORTI, GRIMSHAW AND COBURN v THE QUEEN (1994) 181 CLR 338, (1994) 69 ALJR 24,

(1994) 125 ALR 385

22 November 1994

Criminal Procedure (Vict)

Criminal Procedure (Vict)—Supreme Court—Stay of prosecution Wether appeal from order to Full Court—Supreme Court Act 1986 (Vict), ss. 10(2), 14(3)—Constitution Act 1975 (Vict), s. 85(3).

Headnote

Section 10(2) of the Supreme Court Act 1986 (Vict) provided: "Unless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determination of the Court constituted by a Judge." Section 14(3) provided: "Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Court constituted by a Judge made on or. in relation to the trial or proposed trial of a person on indictment or presentment." Part VI of the Crimes Act 1958 (Vict) provided for appeals to the Full Court by persons convicted on indictment or presentment. Section 85(3) of the Constitution Act 1975 (Vict) provided: "The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986." Section 85 (3) was introduced into the Constitution Act by s. 132 of the Supreme Court Act 1986.


Held, by Mason CJ, Dawson, Gaudron and McHugh JJ, Deane J dissenting, (1) that s. 14(3) of the Supreme Court Act was a bar to an appeal by the Crown against an order permanently staying a prosecution.


Boehm v. Director of Public Prosecutions, (1990) VR 494, at p. 502, overruled.


Reg. v. Kean and Mills, (1985) VR 255, considered.



(2) That to the extent that there was any apparent conflict between s. 14(3) of the Supreme Court Act, which dealt specifically with appeals, and s. 85(3) of the Constitution Act, which dealt generally with jurisdiction, the former prevailed.


Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of Taxation (1948), 77 CLR 1, at p. 29, and Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation (1980), 44 FLR 455, at pp. 468-469; 29 ALR 333, at p. 347, applied.


Decision of the Supreme Court of Victoria (Appeal Division): Reg. v. Smith, (1995) 1 VR 10, reversed.

Hearing

1994, BRISBANE, June 28, 29; CANBERRA, November 22
#DATE 22:11:1994



APPEAL from the Supreme Court of Victoria

Donald William Nash Smith, Christopher Ferguson, Jeffrey Forti, Rodney Thomas Grimshaw and William John Coburn were presented for trial in the Supreme Court of Victoria upon charges of murder and various related charges arising out of the death of Graeme Russell Jensen. After arraignment an application was made to Vincent J on behalf of each accused for an order permanently staying the proceedings against him on the ground that the case which the prosecution intended to present could not succeed and that it would be an abuse of process for the proceedings to continue. Vincent J granted the applications and made the orders sought. The Crown appealed to the Full Court (Brooking, Byrne and Eames JJ) which overruled a preliminary objection to the competency of the appeal and allowed the appeal. The accused appealed from that decision to the High Court by special leave.


M. S. Weinberg QC (with him P. A. Dunn), for the appellants. There is no appeal from an order of a trial judge staying the trial of a person on indictment (1). Observations to the contrary in Boehm v. Director of Public Prosecutions (2) are obiter dicta and are wrong. That case correctly held that an accused, who had been refused a stay, could not appeal to the Full Court against that refusal. He could appeal under Pt VI of the Crimes Act 1958. It does not follow from the fact that the Crown cannot appeal under Pt VI that, notwithstanding s.14(3), it can appeal under s.10(2). A decision by a judge that a trial should be stayed as an abuse of process is a "determination ... made on or in relation to a trial or proposed trial of a person on indictment" within s.14(3). The words "in relation to" are of the widest import which should be given their ordinary and natural meaning. Any ambiguity should be resolved in favour of the liberty of the subject. Accordingly, because Pt VI of the Climes Act provides only for appeals against convictions, there is no appeal against a stay. The construction adopted by the Full Court gives the Crown, without express statutory authorization, an avenue of appeal from a wide range of determinations made by judges in the course of conducting criminal trials. It will inevitably lead to fragmentation of the trial process. Neither historical considerations nor the text of s.14(3) justifies the Full Court's narrow construction. While it is plain that the forerunner of s.10(2) was introduced in 1984 to widen the scope for appeals to the Full Court in criminal matters (to include, e.g., appeals from findings of contempt, refusal to grant habeas corpus, and orders to review decisions of Magistrates' Courts), it could not have been the legislative intent that the Crown should be given the right to appeal against the entire range of

(1) Supreme Court Act 1986 (Vict), s. 14(3).

(2) (1990) VR 494, at p. 502.

determinations made by judges when conducting trials on indictment. Section 85(3) cannot be read as impliedly repeating s.14(3). Section 85(3) does not apply, because before 1986 the Clown did not have a right of appeal. In any event, a specific provision such as s.14(3) is not to be read down El a later general provision such as s.85(3).


D. R. Meagher QC (with him P. G. Lacava), for the respondent. Because of s.85(5) of the Constitution Act 1975, any provision in any other Act, unless it meets the requirements of that sub-section, must be read down so as not to limit sub-s. (3). Before sub-s. (5) was introduced in 1991, Boehm v. Director of Public Prosecutions had decided that s.14(3) was not intended to do any more than implement Reg. v. Kean and Mills (3). In particular it was not intended to take away rights of appeal. Whether or not Boehm was correct when it was decided, the decision is now reinforced by s.85(3), (5). The reasoning in Boehm is that there is no appeal from the refusal of a stay because there is otherwise provided a means of appeal in the event of a conviction at trial. That does not apply to the Crown, which can appeal from the grant of a stay. If the generalia specialibus approach means that s.14(3) prevails over s.85(3), that was altered in 1991 when sub-s. (5) was introduced. Boehm was followed in Clarkson v. Director of Public Prosecutions (4), Director of Public Prosecutions v. Kanfouche (5) and Beljajev v. Director of Public Prosecutions (6).


M. S. Weinberg QC, in reply. The last three cases were not concerned with that part of Boehm which dealt with the Crown's right of appeal. Section 85(5) applies to statutes enacted after 1991. It does not have the retrospective effect contended for. (He also referred to Reg. v. Symons (7) and Reg. v. Tonner (8).)

(3) (1985) VR 255.

(4) (1990) VR 745.

(5) (1992) 1 VR 141.

(6) Unreported; Supreme Court of Victoria (Court of Criminal Appeal); 8 August 1991.

(7) (1981) VR 297.

(8) (1985) 1 WLR 344; (1985) 1 All ER 807; 80 Cr App R 170.
Cur. adv. vult.


Counsel for the Appellants: M.S. Weinberg QC with P.A. Dunn


Solicitor for the Appellants: Kenna Croxford and Co


Counsel for the Respondent: D.R. Meagher QC with P.G. Lacava


Solicitor for the Respondent: P. Wood, Solicitor to the Director of
Public Prosecutions (Victoria)

Orders

Appeals allowed
Set aside the judgment of the Full Court of the Supreme Court of Victoria and in lieu thereof order that the appeals to that Court be dismissed.

Decisions

MASON CJ, DAWSON, GAUDRON AND McHUGH JJ These are appeals against a judgment of the Full Court of the Supreme Court of Victoria setting aside a stay of criminal proceedings against the appellants and ordering that their trial proceed.


2. The five appellants were presented for trial upon charges of murder and various related charges arising out of the death of Graeme Russell Jensen. Jensen died as the result of a gunshot wound on 11 October 1988. On that day, the five appellants, who were members of the armed robbery squad of the Victorian police force, attempted, together with three other members of that squad, to intercept Jensen in the car park of a suburban shopping centre. Jensen drove off and several shots were fired at him by two of the policemen, neither of whom is an appellant. The last shot struck Jensen in the back of the head, killing him instantly.


3. The appellants, together with the other policemen involved, were presented for trial following an inquest into Jensen's death. There were no committal proceedings. After arraignment, an application was made on behalf of each of the appellants to Vincent J for an order permanently staying the proceedings against them. The ground of each application was that the case which the prosecution intended to present could not succeed and that it would be an abuse of process for the proceedings to continue.


4. Vincent J granted a permanent stay against prosecution for murder or manslaughter against each of the five appellants, having concluded that the proceedings were an abuse of process because they were bound to fail. He said:
"In the case of each of the accused whose application for a stay
has been granted, I consider that the interests of justice require
that the stay be made permanent. Each of them has, after a period
of five years, been brought before this Court on a count of murder,
the most serious charge known to the law. That course was adopted
after careful consideration and on the basis of a case that, in
relation to each of them, is fundamentally flawed."



5. The prosecution appealed against the order made by Vincent J to the Full Court. A preliminary objection was taken by the appellants to the competency of the appeal, but the Full Court, being of the opinion that the question was concluded by the decision of that Court in Boehm v. Director of Public Prosecutions ((1) (1990) VR 494), overruled the objection. The Full Court went on to allow the appeal.


6. Special leave to appeal against the Full Court's decision was granted upon a number of grounds, but we have heard argument at this stage only upon the jurisdiction of the Full Court to entertain the appeal from Vincent J. The parties have consented to have that aspect of the matter heard separately upon the basis that, if it is determined in the appellants' favour, it will dispose of the appeals presently before this Court.


7. Boehm v. Director of Public Prosecutions was a case in which the trial judge had refused a stay of criminal proceedings in the County Court. An application was then made to a single judge of the Supreme Court for a declaration that it was an abuse of process to try the accused and for an order that the trial be stayed. An application was also made for judicial review of the decision of the trial judge. Both applications were refused. The accused purported to appeal to the Full Court. The Full Court held that s.14(3) of the Supreme Court Act 1986 (Vict.) precluded an appeal to it from the decision of the single judge, but went on to say that if he had granted the stay the Court would have had jurisdiction to entertain an appeal ((2) ibid. at 502). It is the latter proposition which the Full Court accepted in this case and it is that proposition which the appellants contest.


8. It is convenient at this point to set out s.14(3) of the Supreme Court Act 1986, but it will be necessary to refer to various other provisions which preceded it in order to understand the arguments which are put. Section 14(3) appears in a section headed "Restriction on appeals" and provides:
"Except as provided in Part VI of the Crimes Act 1958, an appeal
does not lie from a determination of the Court constituted by a
Judge made on or in relation to the trial or proposed trial of a
person on indictment or presentment."
Save for appeals by the Director of Public Prosecutions against sentence, Pt VI of the Crimes Act relevantly provides only for appeals to the Full Court by persons convicted on indictment or presentment ((3) See Crimes Act, ss.567, 567A).


9. The view taken in Boehm v. Director of Public Prosecutions was that the wrongful refusal of a single judge to stay a trial upon indictment or presentment was a determination "made in or in relation to the trial or proposed trial of a person" so that s.14(3) would, apart from the exception created for appeals under Pt VI of the Crimes Act, preclude any appeal from that determination. However, the Court pointed out that, since the wrongful refusal to grant a stay might ultimately form a ground of appeal against conviction, an appeal to the Full Court was provided for by Pt VI of the Crimes Act. On the other hand, the Court expressed the view that, as no appeal lay under Pt VI of the Crimes Act against a determination by a single judge to stay a trial, there being no conviction, s.14(3) did not preclude an appeal against such a determination. This view was based upon a construction of s.14(3) which the Court expressed as follows ((4) Boehm v. Director of Public Prosecutions (1990) VR at 499):
"in s.14(3) the reference to a determination made on or in relation
to a trial or proposed trial refers only to a determination of that
description from which an appeal lies under Part VI of the Crimes
Act. It follows that if no appeal from a determination lies under
Pt VI, s.14(3) does not operate to exclude any appeal from the
determination given by s.10(2)."
The reasoning which underlies that construction is not readily apparent, but is to some extent based upon the history of the legislation relating to appeals in criminal matters in Victoria.


10. Section 42 of the Supreme Court Act 1958 (Vict.) provided:
"Any single Judge sitting in Court may, subject to appeal in civil
or mixed matters to the Full Court, hear and determine all motions
causes actions matters and proceedings not required under any Act
or Rules of Court to be heard and determined by the Full Court."
((5) The same provision was to be found in s.11 of the Judicature
Act 1883 (Vict.), and s.37 of the Supreme Court Act 1890 (Vict.))
The words "subject to appeal in civil or mixed matters" were held to deny an appeal from a single judge in criminal matters ((6) See Re Thompson (1893) 19 VLR 286; Re Marshall (1901) 27 VLR 205; Re Medley (1902) 28 VLR 475; R. v. Watt; Ex parte Slade (1912) VLR 225; Williamson v. Director of Penal Services (1959) VR 205; Tait v. The Queen (1963) VR 547 at 549-550; McEwan v. Waldron (No.1) (1976) VR 495). There was, of course, a right of appeal in criminal matters under Pt VI of the Crimes Act but that right was confined to persons convicted on indictment or presentment and did not extend to the Crown ((7) In 1970 s.567A was inserted to provide for Crown appeals against sentence). There was no right of appeal even from a conviction by a single judge - for example, for contempt in the face of the court. There was, of course, an appeal by special leave to this Court in those circumstances (8) See, e.g., Keeley v. Mr Justice Brooking (1979) 143 CLR 162.).


11. In 1984 the legislature sought to remedy the lack of any right to appeal from a decision of a single judge in criminal matters. Section 42 of the Supreme Court Act 1958 was amended ((9) See Supreme Court (Amendment) Act 1984 (Vict.), s.4) to read:
"(1) Any single judge sitting in Court may hear and determine
all motions, causes actions matters and proceedings not required
under any Act or Rules of Court to be heard and determined by the
Full Court.
(2) Unless otherwise expressly provided by this or any other
Act an appeal shall lie from any determination of a single judge
sitting in Court to the Full Court."



12. In Reg. v. Kean and Mills ((10) (1985) VR 255) the Full Court held that s.42 in its amended form should not be construed as granting a right of appeal from a ruling (in that case a refusal to quash a presentment) made by a judge in the course of a criminal trial. The Court observed that Pt VI of the Crimes Act prescribed a procedure for all appeals from criminal trials upon indictment or presentment and said ((11) ibid. at 258):
"If Parliament had intended to depart from the well known and well
understood procedure for appeals in criminal cases, most of the
provisions of which are of long standing, very clear words would
not only have been expected but would also have been necessary to
achieve the result."
The accused in that case, the Court said, would have a right to appeal to the Full Court if they were convicted on the presentment which the trial judge refused to quash. The Court added ((12) ibid. at 257):
"It is, however, unnecessary to decide finally the full scope of
the right of appeal granted by the new section: it is sufficient
for present purposes to decide that the section does not grant a
right of appeal in cases where such a right is already given by Pt.
VI of the Crimes Act."



13. In 1986 the Supreme Court Act 1958 was replaced by the Supreme Court Act 1986 (Vict.). Section 10 of the new Act was in terms indistinguishable from those of s.42 of the old Act, but s.14(3) was added.


14. The Full Court in Boehm v. Director of Public Prosecutions expressed the view that, if s.14(3) of the Supreme Court Act were given its ordinary and natural meaning, existing rights of appeal from the decision of a single judge in criminal matters, which were introduced in 1984, would be abolished ((13) Boehm v. Director of Public Prosecutions (1990) VR at 497.). No doubt that is so, but it is clear that s.14(3) of the Act was intended to restrict rights of appeal which might otherwise exist under s.10(2) which, as we have said, is in similar terms to those of s.42(2) of the previous Act. No doubt it is also true to say, as the Full Court did ((14) ibid. at 499), that s.14(3) was intended to place in statutory form the law established in Reg. v. Kean and Mills. But that case dealt only with the ruling of a single judge which, if a conviction ensued, might ultimately be tested on appeal to the Full Court under Pt VI of the Crimes Act. The Court did not advert to the situation where the ruling of a trial judge was adverse to the Crown. But it can hardly be assumed that, had it done so, it would have concluded that the Crown had a right of appeal against any ruling made against it at or before trial - a right not shared by an accused - merely because it had no right of appeal under Pt VI of the Crimes Act. It would appear that s.14(3) was intended to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial, whilst allowing appeals where there was a conviction by a single judge such as occurred in Keeley v. Mr Justice Brooking ((15) (1979) 143 CLR 162). The observation that s.14(3) was intended to enact the decision in Reg. v. Kean and Mills does not shed a great deal of light on the full scope of that sub-section.


15. The only possible way to reach the result reached by the Full Court is to read the words "Except as provided in Part VI of the Crimes Act ..." at the beginning of s.14(3) as saying "Where an appeal is provided directly or indirectly by Part VI of the Crimes Act ...". However, the Court did not adopt that approach and it is understandable that it did not do so. To do so would have amounted to rewriting the sub-section and would have exceeded the proper bounds of statutory interpretation ((16) cf. Stow v. Mineral Holdings (Aust.) Pty. Ltd. (1977) 51 ALJR 672 at 675; 14 ALR 397 at 401; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518). What the Court did instead was to rely on those authorities which allow wide or general words to be read down so as to avoid radical or substantial change to existing law in the absence of a clear contrary intention ((17) Union of South Africa (Minister of Railways and Harbours) v. Simmer and Jack Proprietary Mines (1918) AC 591 at 596; Mixnam's Properties Ltd. v. Chertsey Urban District Council (1965) AC 735 at 751). They said ((18) Boehm v. Director of Public Prosecutions (1990) VR at 499):

"We are satisfied that Parliament did not intend the words 'in
relation to' to have their widest possible meaning and therefore it
is necessary to ascertain what limited meaning they are intended to
have".
The Court purported to read down the words "a determination ... in relation to the trial or proposed trial of a person" and to apply them to a determination to refuse a stay but not to a determination to grant a stay for the reason that in the former case the refusal might ultimately constitute a ground of appeal under Pt VI of the Crimes Act whereas in the latter case there could be no such appeal.


16. But in truth the Court did not read down the words "in relation to"; it merely gave them a selective application, treating a determination refusing a stay as "a determination ... made in or in relation to the trial or proposed trial of a person" but treating a determination granting a stay as not falling within that description. In construing s.14(3) in that way, the Court was just as much rewriting the sub-section as it would have done had it attempted to alter its opening words. It was equally impermissible as an exercise in statutory interpretation.


17. It follows, in our view, that s.14(3) must be given its ordinary meaning and that the Full Court was wrong in Boehm v. Director of Public Prosecutions in saying ((19) ibid. at 502) that "(i)f the judge of this court grants a stay, as no appeal against that lies under Pt VI of the Crimes Act, an appeal against the determination lies under s.10(2)."


18. In this Court the Crown advanced for the first time submissions based upon ss.85(3) and (5) of the Constitution Act 1975 (Vict.). Section 85 deals with the powers and jurisdiction of the Supreme Court of Victoria. Originally sub-s.(2) provided that the Court should have the powers and jurisdiction of the courts at Westminster. Sub-section (3) provided:
"The Court and the Judges of the Court shall in addition have and
may exercise such jurisdiction (whether original or appellate) and
such powers and authorities as are now prescribed by any Act as
belonging to or exercisable by the Supreme Court of Victoria or the
Judges thereof."



19. The Supreme Court Act 1986, in addition to introducing s.14(3), amended ((20) Supreme Court Act 1986, s.132) the Constitution Act 1975 by repealing s.85(2) and substituting for s.85(3) the following provision:
"(3) The Court has and may exercise such jurisdiction (whether
original or appellate) and such powers and authorities as it had
immediately before the commencement of the Supreme Court Act 1986."



20. The argument based upon s.85(3) is that, by virtue of that sub-section, the appellate jurisdiction of the Supreme Court remained unrestricted by s.14(3) of the Supreme Court Act 1986. That argument is based upon the assumption that, following upon the decision in Reg. v. Kean and Mills, the Full Court had, under s.42(2) of the Supreme Court Act 1958, power to entertain appeals from a single judge in criminal matters in any case where there was no ultimate appeal under Pt VI of the Crimes Act. There is no need to examine the correctness of that assumption. In our view the argument fails in its basic proposition, namely, that if there is conflict between s.14(3) of the Supreme Court Act 1986 and s.132 of the same Act (which substituted the new s.85(3) of the Constitution Act), s.132 (and hence s.85(3)) should prevail.


21. In our view, an opposite conclusion is dictated by the principle that where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act ((21) See Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of Taxation (1948) 77 CLR 1 at 29.). But even if, because s.132 merely amends the Constitution Act 1975, the conflict is regarded as arising between two separate Acts, the principle is just as applicable and there is no reason why regard may not be had to the common origin of the conflict, namely, the Supreme Court Act 1986. Nor has any reason been advanced why the status of the amendment introduced by s.132 as an amendment of the Constitution Act 1975 should lead to any different result. It is not suggested that the Supreme Court Act 1986 did not satisfy the requirements of the Constitution Act 1975 for the amendment of its provisions ((22) Constitution Act, s.18). It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect ((23) See Refrigerated Express Lines (A/Asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 per Deane J). It follows, in our view, that to the extent that there is any apparent conflict between s.14(3) of the Supreme Court Act 1986, which deals specifically with restrictions on appeals, and s.85(3) of the Constitution Act 1975, which deals generally with jurisdiction, the former must prevail.


22. A further argument was based upon the non-compliance of the Supreme Court Act 1986 with the requirements of s.85(5) of the Constitution Act 1975. That sub-section was a new provision and was added by s.4 of the Constitution (Jurisdiction of Supreme Court) Act 1991 (Vict.). The section provides:
"A provision of an Act, other than a provision which directly
repeals or directly amends any part of this section, is not to be
taken to repeal, alter or vary this section unless -
(a) the Act expressly refers to this section in, or in relation to,
that provision and expressly, and not merely by implication, states
an intention to repeal, alter or vary this section; and
(b) the member of the Parliament who introduces the Bill for the
Act or, if the provision is inserted in the Act by another Act, the
Bill for that other Act, or a person acting on his or her behalf,
makes a statement to the Council or the Assembly, as the case
requires, of the reasons for repealing, altering or varying this
section; and
(c) the statement is so made -
(i) during the member's second reading speech; or
(ii) after not less than 24 hours' notice is given of the
intention to make the statement but before the third reading of the
Bill; or
(iii) with the leave of the Council or the Assembly, as the case
requires, at any time before the third reading of the Bill."
The submission was that, although it was not introduced until 1991, s.85(5) applies to all Victorian legislation whether passed before or after 1991, including the Supreme Court Act 1986. It was submitted that this has the result that s.14(3) of that Act is of no effect because it purports to repeal, alter or vary s.85(3) and does not comply with s.85(5). It was argued that so to construe s.85(5) was not to give it retrospective effect. That argument was put in an attempt to avoid the common law rule that a statute ought not be given a retrospective operation affecting rights or obligations unless the language of the statute expressly or by necessary implication requires such a construction ((24) See Maxwell v. Murphy (1957) 96 CLR 261 at 267; Rodway v. The Queen (1990) 169 CLR 515 at 518.). But it is unnecessary to consider the question of retrospectivity. For the reasons given above, as a matter of construction any conflict between s.14(3) of the Supreme Court Act 1986 and s.85(3) of the Constitution Act 1975 on the face of those provisions is to be resolved in favour of the former and, that being so, s.14(3) does not purport to repeal, alter or vary s.85(3), and s.85(5) has no application.


23. For these reasons these appeals should be allowed.

DEANE J The background facts and the issues involved in these appeals are set out in the judgment of Mason CJ, Dawson, Gaudron and McHugh JJ. It is unnecessary that I repeat them. Were it not for s.132(e) of the Supreme Court Act 1986 (Vict.), I would agree with their Honours that the effect of s.14(3) of that Act was that the Full Court of the Supreme Court of Victoria lacked jurisdiction to entertain the appeals to it from the orders of Vincent J granting permanent stays of the criminal proceedings against the appellants. Unlike Mason CJ, Dawson, Gaudron and McHugh JJ, however, I consider that, to the extent that there is inconsistency between s.14(3) and s.132(e) of the Supreme Court Act, the latter provision (i.e. s.132(e)) must prevail.


2. The Colony of Victoria attained the status of a self-governing Colony with responsible government pursuant to the statute known as the Constitution Act 1855 (Vict.) a. The Bill for that statute was passed by the Legislative Council of the Colony in 1854 but reserved "for the Signification of Her Majesty's Pleasure". By the Victoria Constitution Act 1855 (Imp.) ((25) 18 and 19 Vict. c.55.) ("the 1855 Imperial Act"), the Imperial Parliament authorized Her Majesty in Council to assent to the Bill ("the reserved Bill") in the amended form set out in Schedule 1 to that Act. Section V of the 1855 Imperial Act provided that the reserved Bill, as so amended, took effect in Victoria upon its being proclaimed by the Governor thereof. Upon that proclamation ((26) On 23 November 1855), the amended reserved Bill ("the 1855 Constitution") operated as an Act of the Colonial Legislature. Its operation as such was, however, by virtue of the direct provision of the 1855 Imperial Act.


3. Section 1 of the 1855 Constitution vested legislative power for the Colony in the Sovereign acting with the advice and consent of a new Legislative Assembly and a reconstituted Legislative Council. Section 60 provided that the Legislature of Victoria, as so constituted, should have full power and authority to repeal, alter or vary all or any of the provisions of the 1855 Constitution and to substitute other provisions in lieu thereof subject to the conditions that certain designated bills ((27) i.e. any Bill by which an alteration in the constitution of the Legislative Council or Legislative Assembly or in the salary or other emoluments of certain Government officials might be made.) be passed with the concurrence of an absolute majority of each of the two Houses of the Legislature and be reserved for the signification of Her Majesty's pleasure. Section IV of the 1855 Imperial Act provided:
"It shall be lawful for the Legislature of Victoria to make Laws
altering or repealing all or any of the Provisions of the said
reserved Bill, in the same Manner as any other Laws for the good
Government of the said Colony, subject, however, to the Conditions
imposed by the said reserved Bill on the Alteration of the
Provisions thereof in certain Particulars until and unless the said
Conditions shall be repealed or altered by the Authority of the
said Legislature."



4. The Constitution Act 1975 (Vict.) ("the 1975 Constitution"), which was passed by the requisite absolute majority of both Houses of the Victorian Parliament and (having been reserved) received the Royal Assent, replaced the 1855 Constitution. Unlike the 1855 Constitution, the 1975 Constitution, in Pt III, accorded independent constitutional status and direct protection to the Supreme Court of Victoria (referred to as "the Court"). Section 85(1) of the 1975 Constitution, which is in Pt III, reads:
"Subject to this Act the Court shall have jurisdiction in or in
relation to Victoria its dependencies and the areas adjacent
thereto in all cases whatsoever and shall be the superior Court of
Victoria with unlimited jurisdiction."
Section 18(1) of the 1975 Constitution provides that, subject to s.18(2), the Parliament of Victoria "may by any Act repeal alter or vary all or any of the provisions of this Act and substitute others in lieu thereof". Up until its amendment by the Constitution (Jurisdiction of Supreme Court) Act (Vict.) in 1991, s.18(2) relevantly provided:
"It shall not be lawful to present to the Governor for Her
Majesty's assent any Bill -
...
(b) by which this section, ... Part III., ... or any provision
substituted for any provisions therein contained may be repealed
altered or varied -
unless the second and third readings of such Bill shall have been
passed with the concurrence of an absolute majority of the whole
number of the members of the Council and of the Assembly
respectively."
Section 18(2)(b) of the 1975 Constitution was amended in 1991 ((28) Constitution (Jurisdiction of Supreme Court) Act 1991 (Vict.), s.5(1)), by the insertion of ", except section 85," after "Part III" in that paragraph. The same 1991 Act inserted in the 1975 Constitution ((29) ibid. s.5(2)) a new s.18(2A) providing that "(a) provision of a Bill by which section 85 may be repealed, altered or varied is void" unless "passed with the concurrence of an absolute majority" of each House and a new s.85(5), (6), (7) and (8) imposing further procedural requirements to be observed in relation to any indirect repeal, alteration or variation of s.85 ((30) ibid. s.4). Those 1991 amendments can, however, be disregarded since, in my view, they had no effect upon the jurisdiction of the Full Court in the present cases ((31) An argument advanced on behalf of the respondents that s.85(5) had a retrospective effect is clearly unsustainable). Accordingly, references to s.18(2) in this judgment are to the form in which it existed at the time of the enactment of the Supreme Court Act in 1986.


5. Were it not for the provisions of the Colonial Laws Validity Act 1865 (Imp.) ((32) 28 and 29 Vict. c.63) and the decisions in Attorney-General (N.S.W.) v. Trethowan ((33) (1931) 44 CLR 394; (1932) AC 526), it might have been arguable that s.18(2)'s restriction on the exercise of the powers of the Victorian Parliament to amend Pt III of the 1975 Constitution was either invalid or ineffective by reason of the inability of the Victorian Parliament to impose restrictions on the exercise by a subsequent Parliament of the legislative powers conferred upon it by the 1855 Imperial Act. There would have been some obvious problems about such an argument ((34) See, e.g., Attorney-General (N.S.W.) v. Trethowan (1931) 44 CLR at 416-417, 429), including the fact that s.IV of the 1855 Imperial Act (see above) had expressly contemplated both the repeal of the 1855 Constitution and the alteration of its entrenchment provisions. It is, however, unnecessary to pursue those problems since Trethowan's Case establishes ((35) See ibid. at 417-420, 423-424, 429-433; (1932) AC at 539-541) that the 1855 the 1855 Imperial Act, while remaining as a link in the historical chain supporting the legislative powers of the Victorian Parliament under the 1975 Constitution ((36) cf. Clayton v. Heffron (1960) 105 CLR 214 at 251), was relevantly overridden by s.5 of the Colonial Laws Validity Act which reads:
"Every Colonial Legislature shall have, and be deemed at all Times
to have had, full Power within its Jurisdiction to establish Courts
of Judicature, and to abolish and reconstitute the same, and to
alter the Constitution thereof, and to make Provision for the
Administration of Justice therein; and every Representative
Legislature shall, in respect to the Colony under its Jurisdiction,
have, and be deemed at all Times to have had, full Power to make
Laws respecting the Constitution, Powers, and Procedure of such
Legislature; provided that such Laws shall have been passed in such
Manner and Form as may from Time to Time be required by any Act of
Parliament, Letters Patent, Order in Council, or Colonial Law for
the Time being in force in the said Colony."
In that regard, it should be mentioned that I consider that s.18(2) is, for the purposes both of the proviso to s.5 of the Colonial Laws Validity Act and of s.6 of the Australia Act 1986 (Cth) ((37) Act No.142 of 1985; see also the Australia Act 1986 (U.K.), s.6), a law "respecting the ... powers or procedure" of the Victorian Parliament which prescribes the "manner and form" to be observed in the enactment of the bills to which it applies. The consequence of that is that neither of those statutes undermined the effectiveness of s.18(2) to impose its special procedural requirements in relation to amendment of either its own provision or the provisions of s.85(3) ((38) See Attorney-General (N.S.W.) v. Trethowan (1931) 44 CLR at 418, 432-433; (1932) AC at 539-540; Victoria v. The Commonwealth and Connor (1975) 134 CLR 81 at 163-164). In the result, s.18(2) was, at the time of the enactment of the Supreme Court Act in 1986, valid and effective to confer upon the provisions of Pt III of the 1975 Constitution, including s.85(3), the special status of constitutionally entrenched or controlled provisions ((39) See, generally, McCawley v. The King (1920) 28 CLR 106 at 123-124, (1920) AC 691 at 712; Attorney-General (N.S.W.) v. Trethowan (1931) 44 CLR 394).


6. It is in the above context that one must determine the relationship between s.14(3) and s.132(e) of the Supreme Court Act. The purpose of that Act was, as expressed in its first section, "to amend and consolidate the law relating to the Supreme Court" and "to amend the law of Victoria insofar as it relates to the procedure of the Supreme Court". It contains a variety of provisions defining both the appellate and the original jurisdiction of the Supreme Court. Among those provisions are s.10 and s.14(3) which read:
"10. (1) The Court constituted by a Judge may hear and determine
all matters, whether civil or criminal, not required by or under
this or any other Act or the Rules to be heard and determined by
the Full Court.
(2) Unless otherwise expressly provided by this or any other Act,
an appeal lies to the Full Court from any determination of the
Court constituted by a Judge.
14. ...
(3) Except as provided in Part VI of the Crimes Act 1958, an appeal
does not lie from a determination of the Court constituted by a
Judge made on or in relation to the trial or proposed trial of a
person on indictment or presentment."
As I indicated at the commencement of this judgment, I consider that the effect of s.14(3) would, if it stood alone, be to deprive the Full Court of any jurisdiction which it would otherwise have possessed to entertain the appeals to it in the present cases. Section 14(3) of the Supreme Court Act must, however, be read with s.132(e) of the same Act. In terms, s.132(e) amended Pt III of the 1975 Constitution by substituting a new s.85(3). The original s.85(3) had read:
"The Court and the Judges of the Court shall in addition have and
may exercise such jurisdiction (whether original or appellate) and
such powers and authorities as are now prescribed by any Act as
belonging to or exercisable by the Supreme Court of Victoria or the
Judges thereof."
The new s.85(3) reads:
"The Court has and may exercise such jurisdiction (whether original
or appellate) and such powers and authorities as it had immediately
before the commencement of the Supreme Court Act 1986."
It is common ground that s.132(e) was enacted in accordance with the procedural requirements of s.18(2) of the 1975 Constitution in its then form.


7. It is arguable that the new s.85(3) was directed to preserving the appellate jurisdiction of the Supreme Court only in so far as appeals from other courts or tribunals to that court are concerned. On that approach, the new s.85(3) of the 1975 Constitution would have nothing to say to s.14(3) of the Supreme Court Act's operation with respect to internal appeals from a single Judge of the Supreme Court to the Full Court. However, in the context of what was intended to be a "plain English" enactmentstatute ((40) See second reading speech, Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 23 October 1986 at 1506.), that approach would seem to be an unduly narrow and technical one which is not supported by the ordinary meaning of the language used, by the distinction drawn, in both the original and the new s.85(3), between "original" and "appellate" jurisdictions or by the distinction drawn, in the original s.85(3), between powers and authorities belonging to or exercisable by "the Supreme Court of Victoria" and those belonging to or exercisable by "the Judges thereof".On balance On balance, it appears to me that the express reference in s.85(3) to "appellate" jurisdiction must be construed as encompassing the appellate jurisdiction of the Full Court in relation to appeals from a single Judge of the Supreme Court as well as appeals from other courts or tribunals. That being so, there is inconsistency between the words of s.85(3) and any provision of the Supreme Court Act which would deprive the Full Court of jurisdiction which it possessed "immediately before the commencement of the Supreme Court Act 1986" to entertain such appeals. It follows that such inconsistency exists between the terms of the new s.85(3) of the 1975 Constitution and those of s.14(3) of the Supreme Court Act at least to the extent that, immediately before the commencement of that Act, the Full Court possessed jurisdiction to entertain an appeal from the Supreme Court constituted by a single Judge in cases such as the present. To the extent that such inconsistency exists, it necessarily reflects inconsistency between two different provisions of the Supreme Court Act, namely, s.14(3) and s.132(e) (which substituted the new s.85(3) in the 1975 Constitution).

8. As has been seen, s.132(e)'s validity depends upon the fact that it was enacted in accordance with the then applicable special requirements of s.18(2) of the 1975 Constitution. The new s.85(3), which s.132(e) inserted in that Constitution, was intended by the Parliament to enjoy the special status of an entrenched or controlled constitutional provision, that is to say, the status of a "special" provision in respect of which limitations are imposed upon the power of the Victorian Parliament "to express and carry out its purpose in the ordinary way" ((41) See McCawley v. The King (1920) 28 CLR at 124; (1920) AC at 712; Bribery Commissioner v. Ranasinghe (1965) AC 172 at 197.). In that context, inconsistency between s.132(e) and an ordinary provision of the Supreme Court Act cannot be resolved by a simple application of the ordinary rules of statutory construction for determining inconsistency between co-ordinate provisions of the same statute without regard to s.132(e)'s status as a special constituent provision enacted in conformity with the special constitutional requirements of manner and form applicable to it by reason of its operation as such. Rather, the prima facie presumption must be that it was the legislative intent that any inconsistency between s.132(e) and any ordinary provision of the same Act should be resolved in favour of s.132(e). There is nothing in the content of s.132(e), s.14(3) or any other provision of the Supreme Court Act which rebuts that prima facie presumption in so far as any inconsistency between s.132(e) and s.14(3) is concerned. To the contrary, consideration of the overall content of that Act seems to me to confirm that it was the legislative intent that s.132(e) would, by inserting s.85(3) in the 1975 Constitution, ensure that the various provisions of the Supreme Court Act amending, reorganizing and consolidating the law relating to the Supreme Court did not abolish any appellate or original jurisdiction which either the Full Court or the court constituted by a Judge would otherwise possess. Moreover, the proceedings in the Victorian Parliament to which reference may be made pursuant to s.35(b)(ii) of the Interpretation of Legislation Act 1984 (Vict.), support the inference of such a legislative intent at least in so far as the appellate jurisdiction of the Full Court is concerned ((42) See the discussion of the relevant parliamentary proceedings in Boehm v. Director of Public Prosecutions (1990) VR 494 at 497-498.).


9. It follows that the effect of s.132(e) of the Supreme Court Act was to override and nullify s.14(3) to the extent that s.14(3) would otherwise deprive the Full Court of any jurisdiction which it possessed, immediately before the commencement of that Act, to entertain the appeals from a single Judge in the present cases. Immediately before that commencement, s.42 of the Supreme Court Act 1958 (Vict.) (which had been introduced in 1984) provided:
"(1) Any single judge sitting in Court may hear and determine all
motions, causes actions matters and proceedings not required under
any Act or Rules of Court to be heard and determined by the Full
Court.
(2) Unless otherwise expressly provided by this or any other Act
an appeal shall lie from any determination of a single judge
sitting in Court to the Full Court."
At least prima facie, that section conferred jurisdiction upon the Full Court to hear and determine an appeal from a single Judge granting a permanent stay in a case such as the present cases.


10. Shortly after s.42 in that form became part of the Supreme Court Act 1958, the Full Court of the Supreme Court of Victoria, in Reg. v. Kean and Mills ((43) (1985) VR 255), held that s.42, while undoubtedly giving a right of appeal to the Full Court "where none existed" before, did not give a right of appeal in cases where a right of appeal to the Full Court sitting as a Court of Criminal Appeal was "already given by Pt VI of the Crimes Act (1958 (Vict.)) and that it should probably not be construed as granting a right of appeal in any case where a right of appeal is already given by some other statutory provision" ((44) ibid. at 257). In that case, the Full Court held that an accused person, who had applied for an order quashing a presentment, had no immediate right of appeal under s.42 from a decision of a single Judge of the Supreme Court rejecting the application. The whole basis of the decision was, as the judgment makes plain, that the accused would, in due course if convicted, be entitled to argue that the presentment should have been quashed on an appeal from his conviction under Pt VI of the Crimes Act. Regardless of whether the reasoning and decision of the Full Court in Reg. v. Kean and Mills limiting the scope of s.42 of the Supreme Court Act 1958 in that way should be accepted, it is apparent that that reasoning had no application to an appeal by the Crown from a decision of a single Judge granting a permanent stay of criminal proceedings since no appeal from such a decision could ever have been brought either immediately or subsequently (i.e. after verdict) by the Crown under Pt VI or any other statutory provision. Indeed, the reasoning of the Full Court in Reg. v. Kean and Mills with its emphasis upon the need to avoid "duplicating rights of appeal where rights already exist" ((45) ibid. at 259) would arguably would support, rather than deny, the existence of the jurisdiction of the Full Court in the present cases immediately before the commencement of the Supreme Court Act 1986. Certainly, that was clearly the view of the Full Court in the subsequent case of Boehm v. Director of Public Prosecutions ((46) (1990) VR at 497-502).


11. Nor, in my view, was there any acceptable basis for cutting down the plain words of s.42 of the Supreme Court Act 1958 so as to exclude an appeal by the Crown from an order granting a permanent stay of criminal proceedings. It is true that such an appeal can, in some respects, be loosely compared to an appeal by the Crown against an acquittal. There are however important distinctions between the two kinds of appeal, and the common law's abhorrence of a Crown appeal against acquittal or sentence does not extend to an appeal by the Crown against a permanent stay of criminal proceedings which has been granted on the application of an accused ((47) See the comments of Mason CJ in Jago v. District Court (N.S.W.) (1989) 168 CLR 23 at 32-33 and the cases there cited. Examples of cases in which a permanent stay of criminal proceedings ordered by a trial judge has been overturned on appeal include Kolalich v. Director of Public Prosecutions (N.S.W.) (1991) 173 CLR 222 and Williams v. Spautz (1992) 174 CLR 509 (where the High Court reversed the Court of Appeal decision).). Nor is an appeal by the Crown from an order granting a stay of a prosecution truly comparable to the institution of new and technically different proceedings after a stay has been granted and upheld on appeal of proceedings in respect of substantially the same conduct ((48) cf. Walton v. Gardiner (1993) 177 CLR 378).


12. Accordingly, I consider that the Full Court was correct in concluding that it had jurisdiction to hear and determine the appeals to it in the present cases.