Smith v The Queen; Ferguson v The Queen; Forti v The Queen; Grimshaw v The Queen; Coburn v The Queen (M50-94; M51-94

[1994] HCATrans 389

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Melbourne No MS0 of 1994

B e t w e e n -

DONALD WILLIAM NASH SMITH

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No MSl of 1994

B e__t w_ e e n -

CHRISTOPHER FERGUSON

Applicant

and

THE_GllEEN

Respondent

Office of the Registry

Melbourne No M52 of 1994

Smith(2) 16 29/6/94

B e t w e e n -

JEFFREY FORTI

Applicant

and

THLO!J.EEN

Respondent

Office of the Registry

Melbourne No M53 of 1994

B e t w e e n -

RODNEY THOMAS GRIMSHAW

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M54 of 1994

B e t w e e n -

WILLIAM JOHN COBURN

Applicant

and

THE QUEEN

Respondent

MASON CJ
DEANE J
DAWSON J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1994, AT 10.27 AM

(Continued from 28/6/94)

Copyright in the High Court of Australia

Smith(2)	17	29/6/94
MASON CJ: Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases, at the conclusion of the

proceedings yesterday, Your Honour the

Chief Justice asked me a question about the passage

that appeared at page 498 of the judgment in Boehm, and I indicated to the Court that that passage was,

in effect, a paraphrase of what appeared in the

1984 debates preceding the introduction of the

amended section 42. Might I invite the Court to

look at the debates themselves. They are set out

in my friend's material that he has handed to the folders, the extracts from Hansard,

(1984) Victorian Parliament Legislative Council.

He has pages 2310 to 2315 and 4328 to 4333. The

passages in question are identical.	The speech was
repeated in the Council and in the Assembly.	If I

can take the Court to page 2310 which was the

second reading speech by the then Attorney-General,

Mr Kennan, where he dealt with the introduction of

the amended section 42. It might be convenient if

I simply invited the Court for the moment just to

read what appears at pages 2310 in the right-hand

column, and the left-hand column of 2311 and the

first ten lines or so on 2311, and then make

submissions in relation to that.

If the Court pleases, Your Honours will see

that the gist of what is set out at the top of

page 498 in Boehm, the passage which reads:

It was said that the purpose of the news 42 was to give a right of appeal from a decision

of a single judge of the Supreme Court to the

Full Court where specific provision for appeal

was not otherwise made -

is, in effect, a paraphrase from two parts of the

Attorney's speech. The words immediately under

"Appeal to the Full Court" at page 2310 and also

the words at the end of the speech at page 2311.

Those are words of a very general nature, but our submission is that when one reads the entirety of

the speech and reads those general words in

context, it is plain that the Attorney was not of

the view that what was being done by the

introduction of the new section 42 in 1984 was to

give the Crown general rights of appeal against determinations by trial judges in the course of

trials, a new appeal function of a kind that had

never historically emerged at all. One can go back

to the rights of the Crown to appeal in England and

in Australia and one never found anything like a

general right of appeal by the Crown to appeal
against determinations of judges made during the

course of a trial.

Smith(2) 18 29/6/94

It is true that those two passages that I have

referred to speak very generally - - -

MASON CJ: But they do use the expression "a person".

MR WEINBERG:	They do, Your Honour, and that was one of the matters that I was going to come to, that
repeatedly in the speech Your Honours will find it
firstly half-way down the right-hand column of 2310:

Under the existing section 42, a person may appeal from a decision of a single judge

to the Full Court -

et cetera -

there is no provision for appeal made in a

purely criminal matter. Accordingly, unless
provision is made elsewhere, a person

dissatisfied with a decision of a single judge

in a criminal matter must appeal directly to

the High Court -

and it is said that that is a restriction modelled

on an English provision.

Unless a criminal matter is within the

terms of section 567 of the Crimes Act 1958,

there will be no right of appeal to the Full

Court.

I should remind the Court that section 567 confers no rights at all upon the Crown. They are rights

limited to an accused person.

The section applies only to conviction and

sentence upon indictment, and provides an

unfettered right to appeal against a

conviction on a matter of law -

and then the Attorney said:	Therefore, several types of criminal cases are
excluded from the usual process. These cases,
whilst not large in number, are of some
significance, as they concern the liberty of the subject.

The concern of the Attorney seemed to be, in our

respectful submission, that there were criminal

matters where persons whose liberty was at stake

were being denied a right of appeal to an appellate

court other than having to come to the High Court

by way of special leave and that that should be

remedied. The Attorney went on to say:

Smith(2) 19 29/6/94

For example, the exclusion operates upon any

case in which a single judge of the Supreme
Court hears a question of criminal contempt, contempt of a Royal Commission, board of

inquiry of a tribunal, or where the judge

refused an Order for Prohibition following

conviction for contempt in a lower court.

The Government considers it inappropriate

that a right of appeal to the Full Court may

not be open to a person dissatisfied with a

decision of a single judge in a criminal

matter. This inappropriateness is underlined

where the law can be seen to provide a more

accessible avenue of appeal in civil matters
than in matters where individual liberty is at
stake.

Again, the contrast is drawn between the general rights of appeal in civil matters and those where individual liberty is at stake. Again, one finds the reference to "a person" in the next sentence,

and after commenting upon the undesirable

consequences of appealing directly to the High

Court or having to bring applications for special

leave directly to the High Court, the Attorney said

this towards the bottom of 2311, left-hand column:

It is estimated that a small number of cases each year is required, as a result of the present provisions, to proceed by way of

appeal from the decision of a single judge

directly to the High Court. It is likely that

others might be dissuaded from pursuing an

appealable matter by the costs -

and again we would have thought it unlikely that

that was a reference to the Crown being dissuaded

by costs from going to the High Court -

and other disincentives associated with a High

Court appeal. Although the number of cases	affected by this amendment may be small, it
reflects the Government's concern that where
the liberty of the subject is in issue,
inappropriate distinctions ought to be
removed -

and so forth. So in our submission, the general

tenor of what the Attorney was doing when the

government introduced section 42 in its amended

form in 1984 was perceived as being simply a slight

widening, if one can put it that way, of rights of

appeal to cover a series of anomalous cases where

the liberty of the subject was at stake, where

persons who were affected by criminal matters ought

to have a right to appeal without having to go to

Smith(2) 20 29/6/94

the High Court. Nothing more ambitious than that
was intended, in our respectful submission,
although one does have the very much broader

passages at the beginning and at the end of the

Attorney's speech, and it is that passage which has

been singled out and fixed upon in the judgment of

the Full Court at the top of page 498. It is an

accurate paraphrase, of course, of what was said at the beginning and end of the Attorney's speech, but it does not, in our submission, reflect in context

what the Attorney was actually saying.

So our submission is that section 42 was not intended to effect a radical restructuring of the

appeal rights of the Crown arising out of

determinations made in criminal trials. But when

one construes a provision such as section 42, one

construes it in the light of the history of

relations between the Crown, the accused and the

appellate courts. One does not disregard hundreds

of years of legal history and the very restrictive

rights of appeal that are granted to the Crown

pursuant to Part VI. In our submission, to read

the words of section 42 as though they introduce by

a side wind a general power of appeal in favour of

the Crown from a host of decisions with which the

Crown might be aggrieved - some examples would be,

for example, an order by a judge that there be

separate trials or that counts be severed, or that

a particularly significant piece of evidence which

the Crown sought to introduced should be excluded;

or that the case should be adjourned; or that a no

case submission should be granted. These are all determinations - that the presentment be quashed;

or indeed, that the Crown be put to its

election - they are all determinations made by

judges in the course of a trial, and if section 42

for the first time gave the Crown rights of appeal

to the civil Full Court, it is, in our submission,

an example of reading the legislation without

reference to its context, its history and indeed,

what was said by the Attorney in the second reading

speech which, in Victoria, one is entitled to have

regard to irrespective of whether there be

ambiguity or not in the provision. The

Interpretation of Legislation Act 1984 empowers a

court when construing a provision in Victoria to

have regard to extrinsic material and parliamentary

debates.

MASON CJ: What is the section? Can you identify the

section?

MR WEINBERG:  I think it is section 85, Your Honour, if I am

not mistaken. That means, Your Honour, that in our

submission the Crown did not, between 1984 and 1986, have the right to go to the appeal court

Smith(2) 21 29/6/94

against a determination made by a trial judge in

relation to a trial or proposed trial. It never

had that right during that period, and section 42

in its amended form did not confer upon the Crown

that right.

One then comes to 1986 and the enactment of the provisions under consideration in this case,

section 10(2), and one sees that section 10(2) is
in very similar form, we would say for all

practical purposes indistinguishable to section 42

in its amended form after 1984. But we also have

the introduction of section 14(3) for the first
time in 1986 and, in our submission, section 14(3)

was enacted in order to give legislative effect to
confirmation of the decision in Kean and Mills in

1985 to, in effect, quarantine, confirm the

quarantining of determinations by trial judges in

the course of trials and proposed trials from the
scrutiny of the civil Full Court, save pursuant to
the Code that applies to appeals arising out of

criminal trials which is set out in Part VI of the

Crimes Act itself.

It was that quarantining effect which was

simply being confirmed, in our submission, by

section 14(3). The accused had an alternative

remedy and section 14(3) recognized that, and

therefore we say perfectly correctly Boehm's case

said he could not use section 10(2). He was

prevented from doing so by section 14(3) and would

have been prevented from doing so by section 42 for

other reasons, as Kean and Mills held, and the

Crown did not have the power to bring an appeal

because it had never had the power, it had not been

given the power by section 42, and section 14(3)

was declaratory of that matter. It was designed to

do no more than to ensure that unambiguously and

clearly the conduct of judges in criminal trials

was quarantined from these wider powers of appeal

that were granted for the first time in 1984 by

section 42 and repeated in section 10(2).

DEANE J: Is there any definition of "determination"?

MR WEINBERG: There is not, Your Honour, no, but our

submission is that "determination" is a word which,

given its ordinary and natural meaning, would

include any decision of the kind that I have

referred to. They are all, in our submission,

determinations by trial judges in the course of or

in relation to the conduct of a trial or proposed

trial. It means no more than a decision, a ruling

if one wishes to put it that way. It certainly is

not final determination or anything of that kind.

No distinction is drawn between an interlocutory

decision, for example, and a final decision, and we

Smith(2) 22 29/6/94

say that the word "determination" does not carry
with it that kind of distinction limiting it to

some kind of final determination. It is a very

broad word. We submit, as indeed was held in

Boehm's case, that a decision by a trial judge to stay a trial is a determination, and so also is a decision, for example, by a judge to accede to a no

case submission. That is a determination by a

judge, in our respectful submission, and if the

appeal rights were available, then the Crown

presumably could ask the judge not to direct a

verdict of not guilty so far as the jury was
concerned whilst they went off to challenge the

decision to the appeal court; in other words, stay

are all, in our submission, determinations. the actual direction of the jury to acquit. These the meaning of the statute.

DEANE J:  It no doubt will be put against you that

determination in relation to a trial may convey

something different to a final order - - -

MR WEINBERG:  It may be put against us, Your Honour, but

Your Honour will note that the Attorney used the

word "decision" in his speech. If Your Honour

notes at the very commencement of the Attorney's

second reading speech the Attorney said where -

there is a right of appeal from a decision of

a single judge of the Supreme Court to the

Full Court.

Certainly the Attorney regarded the words

"determination" and "decision" as being

interchangeable, in our respectful submission.

Your Honours, that then takes us to the next passage in Boehm which we desire to draw to the

Court's attention, because what the court did, in

effect, was to look at the parliamentary debates in

relation to the 1984 amendment and take the view,

we say, that that introduced wider powers of

appeal, and we do not disagree with that. The

question is how much wider did they introduce the

very wide powers of appeal which would be necessary

in order to allow the Crown to appeal from

determinations of trial judges in the course of a

trial. we say not, but in Boehm's case it is

submitted that the appeal division seems to have

taken the view that it did grant these rather wider

powers, radically wider powers. We know of no case

where the Crown ever invoked section 42. We do not

think it has ever been invoked by the Crown, or
indeed, section 10(2) has ever been invoked by the

Crown prior to this case. It is our understanding that this is the first time that either section 42

Smith(2) 23 29/6/94

in the 1984 form or section 10(2) has been sought

to be invoked or used as the basis for an appeal to

the Full Court.

What happened in Boehm then was that the court

went to the parliamentary debates surrounding the

1986 legislation and said there is nothing in there

about section 14(3) at all. It is just not

mentioned in those debates. Indeed, if one reads

the debates they talk largely about the need to

draft in plain English and to clear up

anachronistic language which had previously

appeared in the legislation. Your Honours will

find that at page 498 at about line 10. What the

court said in Boehm was this:

Upon the second reading of the Bill which became the Supreme Court Act 1986 the

Attorney-General was granted leave by the

Legislative Council to have the second reading

notes incorporated in Hansard ..... In the notes

there was no mention of cl 14(3) or of any

alteration to rights of appeal. It was said

that many of the provisions of the existing

Act were written in the most archaic language

and that -

and here is a quote from the debates -

"In the Bill those provisions have been

rewritten in plain English and in doing so

care has been taken to ensure that the

intention of Parliament when originally

enacting those provisions has been retained"

(at p 1660).

What we say about that is firstly it is not clear

what provisions were being referred to, which ones

were said to have been drafted in archaic language.

It is difficult to think that a provision which was

drafted in 1984 by the same government that then

introduced these amendments in 1986 would have been

described as being drafted in archaic language. the intention of Parliament in those circumstances

where archaic provisions have been redrafted, one

can safely infer that the intention is not to

change what has occurred.

We do not disagree with that in any event

because we say that under section 42 introduced in

1984 there would not have been these rather

sweeping and revolutionary powers in favour of the

Crown, and nothing changed. Section 14(3) was not

intended to effect a radical change of any kind,
evident from the fact that it was not even

discussed in the debates other than in these

Smith(2) 24 29/6/94

general terms if those general terms applied to

section 14(3) at all. So the case, in our

submission, demonstrates the dangers of perhaps

giving too much weight to isolated sentences taken

from the parliamentary debates, taken perhaps a

little bit out of context without reading the
context in which those statements were made and

using that as a basis for construing a provision

such as section 14(3) which, on its ordinary and

natural construction, we say supports our

contention that neither section 42 previously nor

section 14(3) after 1986 permits the Crown the

general right of appeal that the Crown contends

for.

The final matter I wanted to raise in support. of this particular ground - it is a matter that was

raised with me by my learned friend yesterday, who

was good enough to draw my attention to a provision
which I do not think has hitherto seen the light of

day. I do not think it was ever argued before the Full Court, and I do not think anyone has ever

picked it up, but my friend has. If I could hand

to the Court a copy of the Constitution Act

1975 - it is in the books, I am told. I have

copies of it and it may be more convenient simply

to hand it up.

It is section 85(3), and that provision was

introduced, as the Court will see from the side

note, by the very same Act which introduced

section 10(2) and section 14(3), that is, the
Supreme Court Act 1986. It was introduced by section 135 of the Supreme Court Act 1986, and the

provision 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.

My friend has not put his argument, but as we

understand it, what he would be seeking to say is

that if there is a problem about section 14(3),

then section 14(3) is either impliedly repealed or

to be read down having regard to section 85(3) to

the extent that it provides no obstacle to the the Crown had a right of appeal prior to the

introduction of the 1986 Act. Our submission is

the Crown did not have a right of appeal prior to
the 1986 Supreme Court Act, and if that is right,
then section 85(3) simply has no application. It

cannot assist the Crown.

Smith(2) 25 29/6/94

Failing that submission, we would say that there is something very peculiar about the

introduction of a provision in 1986 like

section 14(3) which deals specifically with a

restriction which is to be placed upon the Full

Court in a certain kind of case being itself, as it

were, impliedly repealed or read down by a later

provision of the same Act, albeit one inserted in

the Constitution. We would rely upon the maxim - I

will not try the Latin, but it is the maxim which

says that when Parliament deals specifically with

one subject-matter, one does not derogate from the

specific treatment by reference to a more general

provision of this kind, and we would submit that

even if we are wrong about section 42 having not

permitted the Crown to bring these appeals, one

. ought not to construe section 85(3) as either

impliedly repealing or derogating from the plain

words of section 14(3).

MASON CJ:  Is there anything to throw light on the purpose

of section 85(3)?

MR WEINBERG:	I was given the section after Court yesterday afternoon, and we have been unable to go back to
the Hansard debates regarding that. Maybe my friend is able to assist in relation to that, but I
am afraid I am not.  I have not had a chance to go
to the Hansard debates. They are difficult to
readily obtain in Brisbane.

So in conclusion, Your Honours, if I may

conclude our submissions on jurisdiction in this

way: we say if the Parliament of Victoria

determines that it is appropriate for the Crown to

have a right of appeal against a decision by a

judge granting a stay or an exercise of supervisory

jurisdiction where a stay is granted, then no doubt

it is open to the Parliament to do that. The New

South Wales Parliament has done so expressly and in

Crown specifically and in terms a right of appeal	terms by the enactment of section SF of the Criminal Appeal Act 1912. That section gives the	from just this kind of order and other interlock
decisions by trial judges.

DEANE J:  Mr Weinberg, can I take you back for a moment. I

have not quite followed why you say that the court

did not have jurisdiction prior to the Supreme

Court Act 1986. I thought you said there was a

section 42, was it, that was identical to 10(2)?

MR WEINBERG:  Not identical, Your Honour, but in substance

indistinguishable.

DEANE J: Then I think I am missing something. Why did it

not have jurisdiction?

Smith(2) 26 29/6/94

MR WEINBERG: Because, Your Honour, in our submission, one

does not grant to the Appeal Court, which is a

creature of statute which has limited rights of

appeal conferred only by statute, a right of appeal

which has never hitherto existed unless words of

clear and unambiguous purport are used - - -

DEANE J: So it turns on the construction of section 42?

MR WEINBERG: And the aid that one can get in construing

that section, and legitimately get from reading the

debates surrounding the introduction of section 42

as to the purpose for which section 42 was enacted.

We also call in aid, Your Honour, the fact that if

the Crown are to be given these new rights of
appeal, they do involve, dare I say it, the liberty

of the subject, that the section should not be

given greater width than it must be given having

regard to the terms of the section and the

background and history of the introduction of the

section. It is a construction point.

DEANE J:  I follow that. In other words, you are

foreshadowing your argument on section 42, because

I understood what you were saying was that there was no provision that in terms would have been

applicable to have conferred jurisdiction.

MR WEINBERG:  We are saying that upon its proper

construction, section 42 did not confer upon the

Crown the right to appeal to the Full Court from

determinations made by trial judges in the course

of trials.

DEANE J: And where is section 42? Have we got that?

MR WEINBERG:  Your Honours do have that. It is referred to

conveniently in the judgment in Boehm.

Your Honours will find that at page 497 of Boehm, and my friend has it as 1.5 in Your Honours'

material, but it is set out in totality at page 497

of Boehm.

DAWSON J: And you rely on Kean and Mills, do you not?

MR WEINBERG:  And I rely on Kean and Mills, yes.

GAUDRON J: But your argument is, in effect, that it must be

read down?

MR WEINBERG: Yes, read down as against the Crown's general

right of appeal from determinations, just as it was
read down for different reasons against the

accused's general right of appeal because he had

alternative remedies available to him.

Section 14(3) did not exist at ~he time of Kean and

Mills, but the court read it down because it

Smith(2) 27 29/6/94

quarantined decisions made by trial judges in the

course of trials and for very proper reasons, we

submit.

GAUDRON J: Even if one were to read it down, why would one

read it down to exclude what is, in effect, a final

decision?

MR WEINBERG: In one sense it is a final decision. In

another sense it is not a final decision. In this

case, for example, the basis upon which the stay

was granted was that there was an evidential

insufficiency. It is final only in the sense that

for so long as the Crown cannot cure the evidential insufficiency they cannot go on with this case. If they are able to cure the evidential insufficiency;

although it is described as a permanent stay, in

practical terms, of course, it is not a permanent

stay. New circumstances would enable an

application to be made for the stay to be lifted.

Your Honour, there are many decisions that are

as final, if one can put it that way, as this. If

the Crown case depends, for example, upon a

confession and nothing more and the trial judge

rules the confession inadmissible, in our

submission, in practical terms that is as final as

a decision granting a stay.

DEANE J:  Mr Weinberg, I am sorry I am still behind.

Looking at page 497 in Boehm and the reference in

Kean and Mills it says:

It was held that the section did give a right

of appeal where none existed before but did

not give a right of appeal in cases where such

a right was already given by Pt VI of the

Crimes Act.

Now, such a right was given by Part VI of the

Crimes Act, was it?

MR WEINBERG:  It was given to the accused, but never to the

Crown, Your Honour. Kean and Mills was a case in

which the accused complained -

DEANE J: Well, applying that sentence, and I am not

suggesting this is the effect, applying what is

said, section 42 would have given a right of appeal

in this case.

MR WEINBERG:  No, Your Honour, in our submission, the way

that one approaches section 42 is to construe the

section - - -

DEANE J: Would you just listen to what I said, and that was

applying that sentence, section 42 would give a

Smith(2) 28 29/6/94

right of appeal in this case.	I am not suggesting
it is right or wrong.

MR WEINBERG:  It would not of itself give a right of appeal,

no, Your Honour.	The fact that there is no right
of appeal in - - -

DEANE J: Could I take you to the sentence. It says:

It was held that the section did give a right of appeal where none existed before, but did not give a right of appeal in cases where such

a right was already given by Pt VI - What I put to you was applying that sentence,

section 42 would have given a right of appeal.

Whether it be right or wrong, I - - -

MR WEINBERG:  I understand Your Honour's question. could just respond to it this way: If I

it was held in

Kean and Mills that the section, section 42, did give a right of appeal where none existed before.

We do not submit that that is wrong. Of course it

is right, but the question is: what rights of

appeal did it give where none had existed before?

We say they were limited rights, rights of the kind that are set out in the debate, but did not give a right of appeal in cases where such a right was already given by Part VI of the Crimes Act 1958.

That was a reason read into section 42 for not

giving an accused a right of appeal. We understand

that, and we say there is no difficulty with that

either because we do not submit that either Kean

and Mills or Boehm were wrongly decided on that

aspect. But what we say is that the converse does

not necessarily apply. There is a gap in the

logic.

DEANE J: There is no problem about that.

MR WEINBERG:

No, Your Honour, I understand what Your Honour

is putting.

DEANE J:  I was just querying your reliance on Kean and

Mills.

MR WEINBERG:  Your Honour is quite right in the way that

Your Honour puts the question to me.

MASON CJ:  Why do you say that section 85(3) should be read

down, or must be regarded as impliedly - - -

MR WEINBERG:  I do not say it should be read down,

Your Honour. I say that it should not be read as

repealing or reading down or qualifying the

ordinary meaning of section - - -

Smith(2) 29 29/6/94

MASON CJ:  I see, because basically your argument depends on

section 42 which was in force immediately prior.

MR WEINBERG:  Most of my argument depends upon that,

Your Honour, yes, but in the event that the Court

is against me on that, my submission is that upon

its proper construction section 85(3) does not have
the effect of requiring section 14(3) to be given
other than its ordinary and natural meaning because

section 14(3) is a provision which deals very, very

specifically with restricting rights of appeal to

the Full Court from determinations by judges in the

course of trials or proposed trials. It is the

argument of general versus specific, Your Honour.

MASON CJ: Yes.

DEANE J: There is no special relationship between the

Constitution Act and any other Act. Is that so?

MR WEINBERG:  Your Honour, the special relationship lies in

and without a certain majority voting on the proposed provision which would have the effect of amending it, but the Constitution Act is

the fact that one cannot amend a provision in the procedures,

itself an Act of the Parliament and this particular

amendment of the Constitution Act was introduced by

the Supreme Court Act itself, the very same Act

that introduced section 14(3), and that is of some

significance, in our submission. If the Court
pleases, those are my submissions on the question

of jurisdiction, and I take it the Court does not

wish me at this stage to address the other grounds.

MASON CJ: In the circumstances, Mr Weinberg, we think it

would be convenient for the Court to hear

Mr Meagher on the question of jurisdiction at this

stage.

MR WEINBERG: If the Court pleases.

MASON CJ: Yes, Mr Meagher.
MR MEAGHER:	If the Court pleases. We have prepared our

summary for all grounds but we have extracted just

that relating to ground 1, which is the

jurisdiction in the anticipation that the Court

would say just what Your Honour has said.	I will
hand those out.	We have summarized it very shortly
indeed.

MASON CJ: Yes.

MR MEAGHER:  What I will do immediately, I think, in view of

what my learned friend has put this morning, is

very briefly give a resume of the constitutional

Smith(2) 30 29/6/94

development of the Supreme Court of Victoria. It

was, of course, a creature of statute. When it was
created it was given very limited rights of appeal

in criminal matters. Indeed, the only right of

appeal it had for the first 150 years, or

thereabouts, of its existence was that that you

found under Part VI of the Crimes Act, which

followed upon conviction - or most of that period

of time - and then later the director, or the

Attorney initially, and then the director, was

given a right of appeal on sentence if he thought

the sentence was too low.

That was the situation up until 1984. It

arose in part because the jurisdiction of the

supreme court was said to be that of the High Court

in England at its inception - that is, the

inception of the supreme court - and also arose out

of the way in which the predecessor to section 42

was then drafted and certain words that appeared in

it that I will take the Court to shortly. In 1984

those words which had been the basis of decisions

denying the court jurisdiction in criminal matters

were repealed.

Section 42 was then replaced by the provisions

to which you have been referred this morning, and I

will take you to those. we say those provisions
then gave a general right of appeal in criminal

matters unless there was provision for that appeal

elsewhere. The basis of the decision in Kean and

Mills, and indeed several decisions since then, has

been to deny a right of appeal where provision has

been found elsewhere for it. Kean and Mills was on

the basis that if an accused person wished to

appeal - and Boehm the same - then they should

await verdict, do it then if it was adverse. That

was because there was a right of appeal under the

Crimes Act.

In the later cases to which I will take you,

where people who were denied bail sought to appeal

to the Full Court, they were denied a right of

appeal because there was provision made under the

Bail Act, quite specifically, which was set to

exclude the appeal; all of that turning upon the

verbiage that we find in section 10(2) today. Then

in 1986 they prepared the new Supreme Court Act.

By this stage there was no longer any reference

from a jurisdiction point of view, or grant of

jurisdiction to the supreme court to the situation

as it had been in England in the past. That had

all gone. The jurisdiction of the supreme court

was at that point in time to be found entirely

under the Constitution of Victoria or under the

Supreme Court Act itself.

Smith(2) 31 29/6/94

The 1986 Act was essentially a tidying up Act and it was for that reason that we find in

change to the Constitution of Victoria.	section 132 of the Supreme Court Act of 1986 the provisions that changed the Constitution and,
presumably, it was passed in the requisite way as
required by the Constitution Act itself, which
itself had been renewed back in 1974. It required an absolute majority in both Houses of Parliament
to be effective. That provision brought into
section 85(3) of the Constitution which did have
supremacy - - -

DEANE J:  I do not follow what you just said. Would not any

Act require an absolute majority of both Houses of

Parliament?

MR MEAGHER:  Not absolutely, Your Honour. There had to be a

majority. Absolute means in terms of the total

number of members of the House it has to be passed.

The provisions of the Constitution do have

supremacy over other Acts of Victoria. I will not

trouble you generally with that. So far as the jurisdiction of the supreme court is concerned,

that supremacy is to be found in section 85(5) of

the Constitution. If you look at that you will

find that it provides that:

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 -

certain conditions are satisfied, the first of

which is that it "expressly refers to this

section".

You will have that on what my learned friend

handed up to you, but we also have put it into our material at 1.9(b). That provision, that is 85(5),	was introduced in 1991 by the Victorian Parliament,	and it was introduced at a time of controversy
concerning attempts that the supreme court
perceived to limit its jurisdiction. I will
shortly hand up to you the second reading speech on
it and the Act that brought it in. The Act does
have some saving provisions but none which affect
any legislation prior to 1989 so as to save it.
The consequence then is that by reason of the operation of section 85(5), any provision in any
other Act, unless it met those requirements that
are in subsection (5), must necessarily be read down so as not to limit the extent of
section 85(3). By the time that amendment was
introduced in 1991 Boehm had been decided as to the

Smith(2) 32 29/6/94

effect on section 14(3). And the rationale of

Boehm had been that it was not intended by section 14(3) to do anything more than implement

the decision of Kean and Mills, and in particular
was not designed to take away rights of appeal that

previously existed. Irrespective of whether

jurisprudentially the court was correct in coming

to that decision, such a decision is now forced by

section 85(3) and subsection (5).

DAWSON J: That depends on giving effect to what would

appear to be obiter in Boehm's case, does it not?

MR MEAGHER: Yes. It depends, Your Honour, on how one

interprets the 1984 amendments. If in the 1984

amendments the right of appeal was as general as we

say it is, then what I have put is correct. If my

learned friend's submissions this morning that

those amendments that granted jurisdiction in 1984

must be read down, then of course I would be wrong

in what I have just put. So that the matter then

comes to be determined by how one interprets the

provisions of 1984.

DAWSON J:  You do not question that Part VI of the

Crimes Act otherwise provides for appeals for which

it provides? One can agree with that easily.

Whatever it provides for is an otherwise provision.

MR MEAGHER:  Yes. But it provides for an appeal from

verdict.

DAWSON J: Yes. And you say, of course, that the Crown

cannot appeal from a verdict?

MR MEAGHER:  Only if it is a verdict of guilty can one

appeal.

DAWSON J: The next question, really, is - - -

MR MEAGHER:  It does not provide for an appeal from a

determination of a judge.

DAWSON J:	If it provides for an appeal only by the accused, does it nevertheless provide for an appeal,
notwithstanding that the Crown cannot avail itself of it, or does it not provide for an appeal by the
Crown in those circumstances? That is the
question, is it not?

MR MEAGHER: That is a question, Your Honour. Part VI does

not in any way provide for appeals from a

determination of a judge.

DAWSON J:  No. What was said in Kean and Mills was -

although in that case it did not provide for an

appeal from the determination or decision of

Smith(2) 33 29/6/94

Mr Justice Fullagar, it did so in effect by

providing from an appeal against a conviction at

the end if Mr Justice Fullagar had been wrong.	You
do not question that reasoning?

MR MEAGHER:  I do not question that at all, at least not on

this occasion, because it is unnecessary for us to

question that. But what we do say is that there is

no provision for appeal under Part VI of the

Crimes Act in circumstances such as these.

DAWSON J:  Why can you not say there is provision for an

appeal, albeit the right of appeal can only be

exercised by one side?

MR MEAGHER:  Because the right of appeal granted by Part VI.

of the Crimes Act follows upon verdict and we have

not come to a verdict.

DAWSON J: Yes. And the effect of that is that the Crown

cannot appeal because, of course, if -

MR MEAGHER:  No, but it is not providing for an appeal

stopping the trial from taking place at all. It is

not dealing with that; it is dealing with the

position following verdict. The verdict, of

course, is a judge and jury. We are here dealing

with appeals from a judge's decision.

DAWSON J:	So that the effect would be, you say, in relation to matters such as this that the accused cannot
appeal the decision of the judge but the Crown can?
MR MEAGHER:	In this particular instance that would be so.

That is the position that they arrived at in Boehm,

the reason being that the grounds that would be

advanced, to follow the argument advanced in Boehm,

the grounds that would be relied upon for going to

the appellate court and saying a stay should have

been granted when it was not are grounds that could

be raised following an unsuccessful trial.

DAWSON J:	But the conclusion in Boehm in relation to a Crown appeal was obiter.
MR MEAGHER:	Yes, but it has subsequently been followed in

this case and acknowledged in other cases,

acknowledged in the other cases to which I have

referred as having that effect. Indeed, it is the

reason why Boehm could not appeal at that point was

because he should undergo his trial and, should he

be convicted, he could then raise all of those

matters on his appeal. That is the fundamental

reason. And if that was right, then there was an

avenue of appeal on those issues open to the

accused at the conclusion of the trial.

Smith(2) 29/6/94

That is the reason why they say you cannot now

appeal, because there is otherwise provided a means

of appeal. But that does not apply to the Crown,

because it does not have that other provision.	It
does not have a way it can go to the appellate
court at all should the stay be granted. That is
the reasoning of Boehm.	Boehm is not saying to an

accused, "You can never raise these matters in this

court". Boehm is saying, "You can. You just can't do it at this point in time".

McHUGH J:	Mr Meagher, does it come to this on your argument, that the Crown has a right of appeal in
relation to criminal matters before verdict, but
not afterwards?

MR MEAGHER: If there is an acquittal, that is true. If

there is a conviction, Your Honour - I am probably

being silly - but if there is a conviction and a

sentence which the Crown thinks is inadequate - - -

DAWSON J: Then, of course, having said all that, you have

to confront section 14(3).

MR MEAGHER:  Yes, Your Honour, that is true. We confront

section 14(3) by drawing attention to section 85(3)

because section 14(3) did not exist prior to the

commencement of the Supreme Court Act 1986.

DAWSON J: But 42 did and this represents, or would appear

to represent, an interpretation by the draftsman of

the result of Kean and Mills.

MR MEAGHER: Yes, undoubtedly. Undoubtedly it was intended

to implement Kean and Mills but not an

interpretation of section 42(2) so as to give rise

to the broad effect of section 43 that is put here.

Kean and Mills did not say that.

DAWSON J:  To put it this way by way of proposition to you,

the draftsman in drafting section 43 did not think

he was in any way cutting down the

jurisdiction -

MR MEAGHER:  No, and if he did think he was doing that he

just denied it by section 85(3) and (5).

DAWSON J: There is a possibility he may not have been

cutting down the jurisdiction.

MR MEAGHER:  We say he was not because section 14(3) should

be given the limited operation that you find in

Boehm. It does depend very much upon how one

interprets the amendments made in 1984 because, if

one was to interpret the amendments made in 1984,

as my learned friend has put it, then my argument

would obviously fail. He would say that those

Smith(2) 35 29/6/94

amendments of 1984 did not give a right of appeal

in circumstances such as these~ If he were right

about that, then section 85(3) would be of no avail

to me.

GAUDRON J:  I am wondering, Mr Meagher, whether

section 85(5) is of any avail to you anyway.	Does
one not have to reconcile section 14(3) and

section 85(3) as at 1986 before section 85(5) has

any effect?

MR MEAGHER: It is submitted not, Your Honour. That would

be - - -

GAUDRON J: It came into effect in 1991, did it not?

MR MEAGHER:  Yes, it did, but it is very clear that it has

an effect, at least from that date onwards, in

respect of a provision in any Act.

GAUDRON J:  It has effect from 1991, but as to the meaning

of 85(3) in relation to 14(3), does that not have

to be reconciled as at 1986.

MR MEAGHER:  We would submit not, Your Honour. Since this

matter has arisen since 1991, it has to be

reconciled today in light of section 85(5), it

being the latest provision.

GAUDRON J: But what I am putting to you is that

section 85(3) must be construed as at 1986 by

reference to, at least - one way or the other there

must be a reconciliation with section 14(3) as at

1986, must there not?

MR MEAGHER:  Yes. Your Honour, we would say that ideally

one would reconcile them then. Assuming the 1991

Act had never been passed, one would look for a

reconciliation and the reconciliation one would

find is that found in the decision in Boehm,

namely, Parliament had no intention at that stage

of altering jurisdiction, because otherwise why

would it amend the constitutional provision. But

to put the matter beyond doubt, Parliament in 1991

enacts section 85(5) - - -

GAUDRON J: But where does it say that it is retrospective,

or that it alters 85(3)? If 85(3) has one meaning,

or one effect - - -

MR MEAGHER:  It refers to a provision of an Act, it does not say prospective Acts, Your Honour. It is applying

to the statute body of Victoria. Can I put it this

way, Your Honour. Let us assume that in 1991 - and

this in fact was the case - the Parliament was

concerned about how its Acts generally were being

interpreted so far as the jurisdiction of the

Smith(2) 36 29/6/94

supreme court was concerned, and it enacted the

1991 Act to put it beyond doubt as to how they

should be construed.

There would be no doubt at all, in our submission, that that would have an effect

immediately over the whole of the statute body.	It
is, after all, amending the Constitution of
Victoria.	It is not just an Act; it has been put

into the Constitution of Victoria to achieve a

particular purpose. To suggest that it is only

going to apply to Acts thereafter passed by the

Parliament would, in our submission, be an error.

It must surely apply to the Acts then in force as

compelling the way in which they are to be

interpreted.

GAUDRON J:	You would give it a retroactive effect?
MR MEAGHER:	It is not retroactive in any sense other than

from that point on - - -

GAUDRON J: Let us assume that as at 1986 the reconciliation

was, as Mr Weinberg submits, to be affected by the

generalia specialibus rule, so that the appeal

rights were in fact limited by section 14(3). Let

us assume that.

MR MEAGHER: Yes.

GAUDRON J: You say that was the position until 1991 and

that as at 1991, section 85(5) of the Constitution

then had the effect of denying it.

MR MEAGHER: Yes. And, of course, as at 1991, Boehm had

been decided as to what section 14 really meant.

GAUDRON J:	Boehm might have been wrong.
MR MEAGHER:	It may have been, but Parliament has enacted

the 1991 Act with Boehm having been decided and

said in section - - - Boehm is saying much the same thing as has been

GAUDRON J: What if one came to the conclusion, Mr Meagher -

as one might well, I think - what if one came to

the conclusion that section 42 in fact gave a right

of appeal to an accused person who had been refused

a stay, that that was unaffected by section 14(3),

Boehm's case was decided. You could not argue,

could you, that 85(5) then had the effect of taking

away the jurisdiction clearly conferred?

MR MEAGHER: Certainly not.

GAUDRON J: What is the difference?

Smith(2) 37 29/6/94

MR MEAGHER: Because section 85(5) is there to preserve the

jurisdiction, so whatever that jurisdiction - you

can expand the jurisdiction but you cannot contract

it.

GAUDRON J: But the question is, why does Boehm explain the

meaning or operation of 85(5)?

MR MEAGHER:  Your Honour, what I was putting to you was in

answer to the sequence of events that Your Honour

gave me about what if our view was that in 1986

section 14(3) had a limiting effect on the

jurisdiction, as put into the Constitution. We

would say when you came to the 1991 amendment, by

that stage the Full Court in Victoria said it did

not have that effect. And when you look at the

amendment that is made by Parliament, what

Parliament is saying, well, it is not to have that

effect. It is consistent with Boehm.

I am not saying Boehm is interpreting the 1991

amendment. How could I possibly say that, because

Boehm precedes it and in fact does not refer to it,

for obvious enough reasons. But it is consistent

with it. It is taking the same view that

Parliament itself has taken. And if Parliament takes the view and enacts it in legislation, we are

bound by it.

GAUDRON J: But I do not see how it is taking the same view

that Parliament is taking.

MR MEAGHER: Because of what it says. It says:

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 -

these conditions are satisfied. That is what it is

saying.

GAUDRON J: Yes. I understand what the section is saying

but I do not think that is what Boehm is saying.

MR MEAGHER:  Boehm was saying that it could not discern that

Parliament was seeking to contract the rights of

appeal that had been granted in 1984.

DAWSON J: Of course that depended on a particular of

section 42, and really all that you can say that

Boehm actually decided was in that case there was

no jurisdiction applying Kean and Mills.	It was
obiter, you can see that, but you say the

legislature had the obiter in mind, I suppose?

Smith(2)	38	29/6/94
MR MEAGHER:	Yes.	I am not to be taken as saying - and

perhaps I should hand up to you the 1991 Act and

the second reading speech that went with it.

DEANE J:  Mr Meagher, can I just take you back for a moment

to what Justice Gaudron asked you. I simply do not

understand - and I am obviously overlooking

something - why section 42 did not confer a right

of appeal against a refusal of a stay.

MR MEAGHER:	I am inclined to agree with you on that.
DEANE J:	I am not overlooking something.

MR MEAGHER:  Yes. May I first deal with this, Your Honour?

Then I wish to go back and just look at how the

changes were made and I will deal with that quite

specifically as I do that, if I may. The reason I

handed this up was I did not want the Court to take

the view that the 1991 amendments arose out of

Boehm, or indeed the criminal jurisdiction. The

1991 amendments arose out of concern with the

Retail Tenancy Act in Victoria that had purported

to restrict appeals to the Supreme Court of

Victoria.

As you will see from the second reading speech

there, it is that that they are addressing. That,

of course, was an earlier Act. So when they passed

the 1991 amendments to the Constitution they were

very much intending to affect existing legislation.

That was what they were on about. I did not want

there to be any misapprehensions that I was

suggesting the 1991 amendments are born out of this

problem we have before us now. It was born out of

a jurisdictional problem for the supreme court and

a question mark as to what that jurisdiction was

and whether it could be affected by ordinary

legislation in Parliament, by which I mean non-

constitutional legislation. The intent was to make

it quite clear that it could not be unless these

conditions were satisfied.

DEANE J: Could I take you back to another aspect of what

Justice Gaudron asked you, because I do not think I

followed your answer, and that is: if

section 85(3) is read down by a reference to

another section in the Act which introduced it,

namely 14(3), or whatever the relevant section was,
how could 85(5) say anything at all to that

construction of 85(3)?

MR MEAGHER:  The Act that produced it was, of course, the

Supreme Court Act, but it produced it by amending

the Constitution Act. It is a provision in it that

amends the Constitution Act. In our submission,

you could not read down such an amendment as that

Smith(2) 39 29/6/94

simply because in the Supreme Court Act which is of

a lesser - - -

DEANE J:  I understand the argument, but it is not

self-evident to somebody not closely associated

with the Victorian Constitution Act that if you

have one Act which amends the Constitution Act and

also amends the Supreme Court Act, or whatever the

Act is, that you cannot construe the two sections

together.

MR MEAGHER:  I am not sufficiently familiar with

parliamentary practice to know quite how they did

it, Your Honour, but they said - - -

DEANE J: You would certainly be more familiar than I am.

MR MEAGHER:  They may, of course, have applied the requisite

measures to amend the Constitution to the whole

Supreme Court Act out of convenience, but they need

not have done that. They could have passed the

section amending the Constitution in accord with

those provisions.

DEANE J:  I see the force of that. I would have thought

there would be some authority in Victoria in

relation to how you read such sections.

MR MEAGHER:  No, not that I am familiar with, Your Honour,

although there is one case by a single judge in

Victoria on the effect of subsection (5) as applied

to another Act which we will provide to you, but

which does little more than to give it force in

terms of its words.

DAWSON J:  It may be a difficulty one can overcome, but

there is a difficulty in stating an intention to

repeal for a various section which is not yet in

force and that comes into force at the same time as the section which you say requires the statement of

such an intention. In other words, 14(3) was

passed at the same time as subsection (5), was it
not?

MR MEAGHER:  No. Subsection (5) was passed in 1991.

DAWSON J:  I see. That is even harder, is it not?

MR MEAGHER:  Yes, of course it is, Your Honour. But the

consequences were, one would have expected, that

only thereafter could one comply with

subsection (5), obviously, because one would not

have known the_ requisite things to do until that

time that subsection had been enacted. And we find

today - - -

DAWSON J: So you say you read subsection (5) prospectively?

Smith(2)	40	29/6/94
MR MEAGHER:	No.	Subsection (5) applies to the whole of the

statute body of Victoria - that is the existing
statute body - otherwise it was not going to cope

with the problem for which it was enacted. The

problems which it was dealing with were various

Acts of Parliament that were thought to constrain

the jurisdiction of the supreme court. It was

intended to put that matter to rest, not just

prospectively but existingly as well - if that is a

word - as it existed then so there could be no

doubt about it.

When one looks at it, and perhaps this ties in

with what Justice Deane was just putting to me, it

is very difficult to understand why Parliament

would enact subsection (3), related as it is to the

appellate jurisdiction, original jurisdiction too,

as at immediately prior to the commencement of the

1986 Act unless it meant just that. It does not

say, for example, "Subject to the Supreme Court Act

1986", or anything like that. It purports to give

a jurisdiction to the supreme court which it places

in the Constitution, not in the Supreme Court Act

itself, and it purports to exclude from

consideration anything that is going to be in the

Act that is about to be proclaimed or brought into

operation.

If that is what Parliament set out to do, then

we are honour bound to apply it, if that is what it

wanted. When you get to 1991, it would, in our

submission, be clear that Parliament is trying to

make it abundantly clear that that is exactly what

it was doing and that the jurisdiction of the

supreme court is not to be read down.

DAWSON J:  So you say that subsection (5), even if because

of the time differences it is impossible to comply

with it in relation to prior Acts, so be it.

MR MEAGHER:  And no doubt that was intended and if

Parliament found any problems arising, it would

have it within its own powers to do something about

it. The second reading speech indicates that just

that problem arose with the Tenancies Act and that

they were endeavouring to do something about it.

I would now like to go back and just look at

what happened in 1984 and to look at what the

position was just before 1984, which it had been

for quite a long time. The jurisdiction of the

supreme court was to be found in what was back in

1883 section 11 of the Judicature Act and it was

followed through as section 37 of the Supreme Court

Act 1890 and then became section 42 of the Supreme

Court Act 1928 and of the 1958 Act.

Smith(2) 41 29/6/94

We have set out that provision for you at 1.1

through to 1.4. If I could take you to 1.4, which

is the 1958 Act, it gives you the position as it

was before the 1984 amendments. It is at 1.4,

section 42 of the of the 1958 Act, and you will see

that it grants a jurisdiction to a single judge.

You will see the words there:

subject to appeal in civil or mixed matters -

That expression, "subject to appeal in civil or

mixed matters", if I might mention in passing, you
will see in section 43 the reference back to the

English position as it was. That disappears by the

time you get to 1986. But in section 42 the words

that attracted attention of the courts in Victoria.

over the previous 100 years was the expression,

"subject to appeal in civil or mixed matters".

Those words were found to be inappropriate to

include criminal matters. Therefore, it was said

there was no appellate jurisdiction in criminal

matters other than what you found, of course, under

Part VI of the Crimes Act. You would, of course,

get it there.

We have given you some of the authorities - I

do not suggest we have given them all to you but we

have given you Marshall, which is at 1.15, then

Williamson, at 1.16, and McEwan v Waldron, at 1.17,

where the Court will find a discussion of the

limiting effect of those words and that they denied

any appellate jurisdiction in criminal matters,

save what you would find under Part VI of the

Crimes Act.

There is also reference, in certainly the

earlier ones, to the sort of considerations that my

learned friend, Mr Weinberg, put to you, that
traditionally the Crown had no right of appeal as

well. But the emphasis that you will find in those

judgments is on those limiting words and the court

has there put that the Supreme Court of Victoria

is, in fact, the creature of statute, it must find

its powers under the statute and that phrase is

such a limiting factor as to deny the right of

appeal in purely criminal matters. I will not

bother to read the cases to the Court because they

are to that effect and, possibly, not disputed.

Section 42 of the Supreme Court Act 1984

changed that and you have that at 1.5 in our

folder. If you compare the section 42 in the 1958

Act, which is the immediately preceding tab, with the new Act, you can readily see the extent of the

change.

Smith(2) 42 29/6/94

The first thing we would draw attention to -

they break it up into two subsections and the first thing they omitted in their entirety are the words,

"subject to appeal in civil or mixed matters".

Those words vanish. When one bears in mind that

they were the basis of the earlier decisions to

deny criminal jurisdiction, one can appreciate	their significance in them being omitted in their
entirety in this new legislation.

The right of appeal is then to be found in

subsection (2) which has the qualification at the

beginning:

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.

My learned friend put to you, "That couldn't mean

an appeal by the Crown", but there is no

justification, in our respectful submission, for

that type of limitation being introduced there. It is not referring to the character of the person who may appeal, it is entirely directed at the act of

an appeal and the type of order one can appeal

from.

DAWSON J: ..... appeal both ways, does it not? It is just referring to the appeal and not who may bring it.

MR MEAGHER: That is right.

DAWSON J: Then, it might, of course, be also caught by Kean

and Mills.

MR MEAGHER:  No, Your Honour, because Kean and Mills is

concerned with, "Unless otherwise expressly

provided by this or any other Act".	That is what
it is concerned with.

DAWSON J:  But an appeal is expressly provided on Kean and

Mills in relation to trial matters.

MR MEAGHER:  In relation to matters that may be raised

following a verdict.

DAWSON J:  It depends on which way you approach it.

MR MEAGHER:  Yes. Your Honour, what subsection (2) is

providing

DAWSON J: And it may be raised following a verdict but, of

course, because it is following a verdict it

necessarily means that it is only the accused who

can do so. But there is an appeal provided, albeit

a limited appeal. But that is the - - -

Smith(2) 43 29/6/94

MR MEAGHER: There is in that instance, Your Honour, but not

otherwise.

DAWSON J: In general. I mean, a limited appeal is

nevertheless an appeal. That is the argument

against you anyway.

MR MEAGHER:  Yes, Your Honour, but subsection (2) is not

seeking to do anything more, in our submission,

than to channel appeals along their specific

courses where there is a specific course provided

somewhere. It is not in any way saying - and nor

could it be possibly thought to be saying - "There

won't be an appeal in criminal matters", because

the whole purpose - and my learned friend took you
to the second reading speech - was to give an

appeal in criminal matters, matters that are

classed as criminal. That was its whole purpose.

Indeed, to remove restrictions, all it has done by

its opening words is to say that if you can do it

under the Crimes Act - it does not say "the Crimes

Act", but it will do as an example - you do not do

it under this provision. But you could not appeal

this matter that you have before you today under

the Crimes Act at all.

DAWSON J:  You could if the decision was the other way, the

accused could.

MR MEAGHER:	He could appeal it following verdict.
DAWSON J:	On the Kean and Hills basis.

MR MEAGHER: Following a verdict, should he be convicted.

There has been - that is putting it a little strongly - one has heard adverse comment about that

because you are not strictly following an appeal

from a verdict, appealing the failure to grant

stay at all. But that is what they have decided.

DAWSON J:  No, it would be an appeal against an unfair

trial in some way or another, yes.

MR MEAGHER: Yes, that is right, this is somewhat different,

although the same factual matters come to be

considered.

What we say about that subsection - if you

bear in mind they have taken away the words that
qualified the right of appeal before, so they have
deleted that, they have introduced this provision.

This provision does not direct its attention to who

it is who might appeal in any way, in any shape or

form. It simply speaks of "an appeal from a

determination" •

Smith(2) 44 29/6/94

DEANE J:  On your construction, would 42(2) confer a right

of an appeal from a verdict of acquittal in some

cases?

MR MEAGHER:  No, because that would not be from a single

judge.

DEANE J:  I see, there are no circumstances in which a

with criminal matters? single judge of a Victorian Supreme Court deals

MR MEAGHER:  Not in terms of verdicts, no.

DEANE J: They are all juries, are they?

MR MEAGHER:  Yes, Your Honour. We would certainly - I

suppose the appropriate word is - concede an

interpretation that this does not include juries.

It certainly does not purport to do so.

DEANE J: It is not a matter of interpretation, it is

obvious. But there is no provision in Victoria for

dispensing with juries?

MR MEAGHER:  No, Your Honour, unless one, of course, pleads

guilty. You do not have a jury then, but then, of

course, once one does that then one has the

provisions that allow appeals on sentence. If

Your Honour were to put to me what I suspect lay

behind what Your Honour put to me, "Would this

allow an appeal against adverse sentence?", because

that would be by a single judge, we would say that

since provision is made for that quite specifically

under Part VI of the Crimes Act, it would certainly

fall under the words, "Unless expressly provided

elsewhere" •

MASON CJ:  Mr Meagher, do we have an explanatory memorandum

or any Hansard dealing with section 85(3) of

the -

MR MEAGHER:  I have the explanatory memorandum but it is

bereft of any reference to it. I will take you to

that, at 1.11, Your Honour. If Your Honour looks at the last page of the explanatory memorandum at

1.11, it refers to:

Part 8 - Repeals, Amendments, Savings and

Transitionals

Clauses 130-140 are repealing amendments,

savings and transitional provisions. Section 85(3) was introduced by clause 132, as it

then was. So no explanation was given. We have

the debate in Parliament, which is at 1.10, the

second reading speech, and likewise it has no - I

Smith(2) 45 29/6/94

am sorry, I gave you the wrong reference. At

1.12a, you have the Attorney-General introducing

the bill, and the only thing that may be of any

interest in that at all is the conclusion, at page

1660 where we are told that it is to be -

the most advanced and rational legislation and

rules possible -

but no reference at all to the change to the

Constitution.

MASON CJ:	Thank you.
MR MEAGHER:	Indeed, in that 1986 Act, little reference to section 14(3) which it introduced either in the
explanatory memorandum which at 1.11 refers to:

Clause 14 sets down rules limiting appeals to

the Full Court.

As I recall, there is nothing in the second reading

speech relating to it. If one looks at the side

notes to section 14 in the Act of 1986, which is at

1.6, the side note simply refers to sections 39 and

40 of the 1958 Act, and for the most part, except for subsection (3), it faithfully reproduces what

was in sections 39 and 40. But section 14(3) has

been slipped in, if I can put it that way, without

explanation.

There is one area of explanation that I can

direct your attention to. In the second reading

speech, Mr Kennan referred to the work done by

Mr Neil Williams who, in Victoria, has done a great

deal of work on the Supreme Court Practice and

publishes a book to that effect. He, indeed, had
participated a great deal in the redrafting of the

Rules of the Victorian Supreme Court and did play an active role in respect of this Act. At the end

of 1986, beginning of 1987, he published a book on

what he then called "the bill", that is the 1986

bill, and in that he did refer to section 14(3)

with explanation as to what it was that it was

supposedly achieving.	We have set out an extract
of that for you, at 1.13.	I have set out the

foreword there by Mr Justice Brooking as to

indicate what Mr Williams' role was in it all. At

page 298 - - -

MASON CJ: What page was that, Mr Meagher?

MR MEAGHER:  The foreword is at 1.13, the second page that

you will turn over which indicates Mr Williams'

role in the matter. Then, if I took you two more

pages on, we have given you what is at page 298 of

that book, footnote 11. You will see a general

Srnith(2) 46 29/6/94

observation he makes, and then on the next page

that you have, which is in fact the next page in

the book, page 299, in 21.07 he deals with appeals.

In footnote 18 to that, you will see he sets out

the purpose of section 14(3) and you will observe

that the last statement he makes there is:

It states the effect of R v Kean and Mills.

What is important to bear in mind is that he is

writing this at the time when the bill was before

Parliament and it arose out of his work on the Act

and the rules, and it is the best we can do to help

the Court as to any information - - -

DAWSON J: That is not very helpful, is it, because we are

all agreed that section 14(3) was designed to

implement Kean and Mills.

MR MEAGHER:	I am just endeavouring to be comprehensive about it, Your Honour, and to indicate all the
references that we have to it in any way to help
you.

DAWSON J: But it does take you this far, that the reasoning

in Kean and Mills is adopted in section 14(3). In other words, although after verdict you do not get

an appeal directly·from the ruling, you are taken

to have an appeal by reason of the fact that the

ruling affects the outcome or may have affected the

outcome of the trial.

MR MEAGHER: Yes, indeed, and that is what is picked up in

Boehm.

DAWSON J: At least it takes you as far as that.

MR MEAGHER: That is the reasoning in Boehm, essentially.

We just do point out that the Supreme Court Act of

1986 was not just work of the Attorney-General's

Department, it was work that involved the judges of
the Supreme Court to a very great extent.	It is
sort of their Act, in many way.	They were playing

a very active role in respect of it. So when you

come to the decision in Boehm, you are really

getting an interpretation of the Act that they,

presumably, thought was consistent with what was

intended and having first-hand knowledge, we would

say, of what was intended.

Just in respect of that matter, we do point out that the then Chief Justice of Victoria did

preside in the Kean and Mills decision. It was in

1985 and this bill was under active consideration

for two or three years before it was passed. So

section 14(3) would have been a.matter very much -

if it did have the purpose that Mr Williams has

Smith(2) 47 29/6/94

said, and we suggest it did - in everyone's mind

that that was the end to which it was directed.

Likewise, the jurisdiction of the supreme court was

being jealously guarded. We would suggest that

that probably explains the reason for section 85(3)

and the fact that it is made an amendment to the

Constitution and not made a provision of the

Supreme Court Act itself, so as to give it greater

status.

The decision in Boehm was then followed in

Clarkson, which we have given you at 1.21. In
Clarkson, the court was Justices Crockett, Murphy

and Nathan.	The proceedings there were held to be
criminal.	You will find that at page 747, line 23,

that Mr Justice Murphy expressed his satisfaction:· that the appellant's originating motion ..... to

bring up for quashing convictions and the

consequent sentences ..... was a criminal matter

or proceeding.

That is being determined in light of the history of

the appellate power of the supreme court and as to

the effect that would have.

They then held that there was a right of

appeal conferred by section 10(2), following the

1984 amendment and, at page 749, you will find

that, at line 40, Kean and Mills is being applied

with its full rigour by that court.

DAWSON J:  They took a very wide view of Kean and Mills, did they not, namely, that:

Pt VI of the Crimes Act 1958 prescribed a

procedure for all appeals from criminal cases

tried before a jury and that that procedure

was exhaustive.

MR MEAGHER:	went on to look at Boehm, in the middle of the page Yes, Your Honour, but he then, over the page,	there, and you will see that he refers to Boehm and
that he expresses the view that but for Boehm he
would have determined that the:

instant determination of the Practice Court

judge "in relation to the trial" of the

appellant -

would have taken it outside by reason of

section 14(3) but applied Boehm to say that it

determined the matter the other way and, therefore,

the court does have a right of appeal pursuant to

section 10(2), which is in the next paragraph.

Smith(2) 48 29/6/94

DEANE J:  To take you back to what I asked you about

earlier, this would indicate that on your argument

an appeal would lie from a verdict of acquittal

entered by a supreme court judge on appeal from an inferior court?

·MR MEAGHER: Without a jury, yes - well, I am not sure of

the circumstance in which that could arise in

Victoria, Your Honour.

DEANE J: Assume in this case there had been a conviction

and the appeal to the single judge had succeeded
and he had quashed the conviction and entered a

verdict of acquittal?

MR MEAGHER:  I do not think he could have done that. No.

He could have quashed the conviction.

DEANE J:  He could have quashed the conviction but not

entered a verdict?

MR MEAGHER:  Yes, but not entered a verdict. I will just

have to think about that, Your Honour, but I do not

think there w~s power in Victoria for that.

DEANE J:  I am not suggesting it is necessarily fatal or

anything because Nestle's case would probably - the

majority view in that would be consistent with that

approach.

MR MEAGHER:  Yes. In any event, the result here was, of

course, that appellate jurisdiction was found to

exist. So when it is said that Boehm has not been

applied, Boehm has been applied and it is a

decision on which the Full Court has acted.	We
will see it is just not a matter of obiter.

The next matter is that of Kanfouche, which we

have at 1.22. This is what one could call, I

think, the bail cases.	We have in Victoria a code
called the Bail Act 1977 which purports to set out

everything to do with bail and granting all the
various powers and likewise that might relate to it

and which denies a right of appeal under

section 18A. An applicant who is unsuccessful in

getting bail sought to appeal and argued that the

Full Court did have jurisdiction to hear that

appeal. This is in June 1991.

The court denied jurisdiction to hear the

appeal because of the provision in the Bail Act and

turned its attention to section 10(2) and also

section 14(3). You will find that, initially, they

dealt with the interpretation of the provision in

the Bail Act and then they went on to consider the provisions in the Supreme Court Act which you will

find at page 147, commencing at around about

Smith(2) 49 29/6/94

line 30, where they talk about section 10(2) and

how it should be interpreted. You will see that

the part that concerns them most is the opening

words to that section. They refer to Kean and

Hills, as you will see. Then, over the page, they

refer to the decision in Boehm. You will see they

refer to section 14(3) and you will see that they

apply Boehm so as to exclude that from

consideration and you will see their conclusions on

that at the bottom of the page. Having referred to
the cases to which I have taken you, they say:

In summary, each of the three authorities to which we have referred involved a criminal

matter. In each case, in so far as there was

said to be statutory exclusion of the

operation of s 10(2), it was an exclusion

deriving from availability of appeal otherwise

to the Full Court. At least in Boehm, which

was followed in Clarkson, exclusionary words

within the Supreme Court Act itself (s 14(3))

were read narrowly, ands 10(2) was said to be

capable of wide operation in criminal matters

wheres 14(3) did not stand in the way.

They went on to find, however, that the provisions

were made under section 18A of the Bail Act and,

therefore, section 10(2) did not give the right of

appeal. Once again, Boehm was being accepted in,

if I might say, its broader sense as to how these

sections should be interpreted and, indeed, as to

the narrower interpretation to be given to

section 14(3).

The next decision in which they considered the matter was that of Beljajev, which we have provided to the Court at 1.23, an unreported decision of 8
August 1991. Again, it related to an operation of

the Bail Act and I think, perhaps, without taking

you in detail to the judgment, the same approach

was adopted by the Full Court, namely that it was

not a matter of interpreting section 14(3) to

exclude a right of appeal, that it was a matter of

interpreting section 10(2) and, in particular, its

opening words and if they excluded an appeal, then

that was the end of the matter. So in all of these

cases, section 14(3) is being accepted as having

references to section 10(2) are at pages 21 and 22 of it. Of course, it was again followed in the case before you now by our Full Court.

the very limited operation. You will find in

It has been put by my learned friend that we

did not raise the provisions in the Constitution before the Full Court, which we did not, but the

circumstances were these: we had suggested in the

Smith(2) so 29/6/94

lead up to that that if jurisdiction was to be

attacked a Full Bench should be convened because,

otherwise, the Full Court was bound by its decision

in Boehm and the other decisions.	They did not
request a Full Bench.	You will see that referred

to in Mr Justice Brooking's judgment. They had not

asked for it and our resistance when it came on in

the Full Court and the objection was raised, was

simply to say, "Well, you're bound by Boehm and

that is the end of the matter." It was not

necessary to debate it any further than that.

The last matter of statutory authority that I

will refer you to is the process followed recently

by the Victorian Parliament when it enacted the

Public Prosecutions Act this year. My learned

friend has put it that the Crown has not enjoyed a

right of appeal but, of course, the Crown has

enjoyed a right of appeal to this Court. Since the

Australian Constitution was enacted the Crown could

come here from a decision of a judge and seek leave

to appeal as, indeed, it would seek to do in this

case if this Court found that the Full Court had no

jurisdiction.

So, to say that there is some ancient right

that denies the Crown a right of appeal in

Australia is, really, to ignore the fact that, by

its Constitution, such a right has been there for

quite a long time now. But when the Victorian

Parliament interposed the Full Court, you can see

from what my learned friend took you to in the

debate in 1984 in the second reading speech that

what was really motivating the Attorney-General was

to try and implement what this Court has often

counselled ought to be done and that is an

intermediate court that could consider these
matters, be a screening court, and which would give

this Court the benefit of its opinion if the matter

was brought further. That is what he was seeking

to do.

My learned friend says, "Well, if you look at

his address, it's all to do with individuals who

might be, I suppose, just depicted as the victims

of the criminal process, bringing their appeals.",

and it is true enough that the Attorney-General

does pitch it in that fashion but what he is

talking about in terms of the desirability of the

matter is the desirability of the Full Court being

able to hear matters so as to save some of the work

that would otherwise come to this Court and so as

.to give this Court the benefit of its opinion.

When the Public Prosecutions Act of this year

was implemented, we have set it out at 1.8, there

was a recognition in it that there would be appeals

Smith(2) 51 29/6/94

against stays by the Crown because what this Act

did was to address that very matter, amongst a

number of other matters. It did it by creating a

committee which, if you have a look at 1.8, you

will find at page 13 of the Act, section 23(2),

what is called a Director's Committee, by

subsection (1):

Before making a special decision, the Director

must convene a Director's Committee to

consider the decision.

So wherever there is a special decision to be made

there is to be this committee and the director must

consult it. "Special decisions" are defined in

section 3, in paragraph (f), and you will see that

one of those special decisions is:

to appeal against, or seek any relief or

remedy in respect of ...•. a permanent stay - So Parliament has recognized, we say yet again,

that there would be appeals in matters such as

these and has provided an apparatus by which the

director should seek advice when he desires to

launch it.

It may be, of course, Parliament only had in

mind seeking special leave to appeal to this Court

but that would be highly unlikely. This

legislation was being brought into Parliament and

enacted during the currency of this appeal. So

there was a grant of the stay in this case and this

appeal. So we would say that you can find there,
quite contrary to what my learned friend says, an

acceptance by Parliament that there will, indeed,

be appeals.

The last matter that we would put to you on

this is that the results achieved by the decision

in Boehm, as it has been applied in those decisions

to which we have referred, is one that is a

desirable process in the administration of criminal

justice, for the very reasons that the

Attorney-General gave in his second reading speech

in 1984. It allows an intermediate Court of Appeal

to deal with appeals which otherwise could be

brought only by direct appeal to this Court. This Court has often said that an intermediate court is

better suited for the supervision of interlocutory
processes of the criminal trial. That was said in

one of the Beljajev decisions and the High Court

would, of course, have the benefit of the opinion
of the intermediate appellate court.

It has been put, at one point, by my learned friend yesterday or today, that this might lead to

Smith(2) 52 29/6/94

a fragmentation of criminal trials but, in our

submission, it has the opposite effect to that.

There is no fragmentation when, in a case such as

this, one is appealing against the grant of a stay
that would stop a trial taking place at all. They

are our submissions.

GAUDRON J:  Mr Meagher, I wonder could you assist me in

this? The indictment is presented first before

there is a motion for a stay, is there?

MR MEAGHER: Yes, I should, I think, make that very clear.

GAUDRON J: Yes.

MR MEAGHER: 

Under - that enables me to say something I

meant to say about an observation you made
yesterday, if I may say so, and I wanted to make it
clear I was not adopting it because I do not think

it is open to us.

Under the Criminal Trials Act of last year,

the process is this: a presentment is filed in the
court and there is then an arraignment before the
judge alone at which the plea is taken. This is

long before a jury is empanelled. That having been
done there can then be under that Act, or what we

call section 5 hearings, if the judge so orders,

and if there are then the judge can, long before a

jury is assembled, hear all manner of applications
and make orders that will then be binding for the

trial as if they were on trial, and that is - - -

GAUDRON J: And the trial commences later?

MR MEAGHER:	Yes, depending what you mean by trial?
GAUDRON J:	I am looking at 14(3) of the 1986 Act and

wondering if "trial" in that subsection, does it

refer to a trial which it has been decided or

assumed will take place or is taking place or which

is to take place? I am looking at it and noting

that it does not say, "in relation to an

indictment" .

MR MEAGHER:	No.
GAUDRON J:	I am wondering is it generally assumed that the

trial commences with the presentment?

MR MEAGHER:  It is going to be easier for me to speak in

terms of exclusion, I think, than inclusion.

Section 14(3) does not refer to criminal

jurisdiction; an exercise of rights, of powers,

pursuant to a criminal jurisdiction.

Smith(2) 53 29/6/94

GAUDRON J:  In relation to the trial or proposed trial on

the indictment or presentment.

MR MEAGHER:  Yes, now, had it spoken of criminal

jurisdiction, some distinction between that and

inherent jurisdiction could be drawn. It does not

do that and we do not seek to do that because we do

not think it is sustainable. So, what matters is

whether there is a connection with a criminal trial

proposed or in being. Because of the operation of

our Crimes (Criminal Trials) Act undoubtedly each
of these men has been presented and he has been arraigned and a plea has been taken before this

stay has been granted. I cannot controvert that

because that has indeed happened. But, no jury has

been assembled and when a jury is assembled they

will be arraigned again.

GAUDRON J: And the trial will commence.

MR MEAGHER:  If by that you mean the opening and calling of

evidence - - -

GAUDRON J: 

I am assuming, leaving aside, yes, leaving aside

questions of stay. What is in my mind is the
question whether, in the light of 85(3) you read
the words, "determination on or in relation to the

trial or proposed trial" as including a

determination with respect to an application or a
motion for a stay of the indictment.

MR MEAGHER:  Yes. Your Honour, I have to direct your

attention to section 7 of the Crimes (Criminal

Trials) Act 1993 and it is at 1.9 of your material.

You will see there that the distinction they are

drawing is, in section 6, between a trial before a

jury and what happens before that pursuant to this

Act. In section 7 you will see:

Despite the fact that the court may be

constituted by different judges for the

purpose of different proceedings, if a matter

is dealt with in accordance with section 5

before the trial of the person committed or
presented for trial has begun, the proceeding

in which the matter was so dealt with is to be

taken as being part of the trial.

Your Honour will then appreciate the reason I was

having difficulty in answering your questions as

specifically as Your Honour was putting them to me

GAUDRON J: Yes.

MR MEAGHER:  - - - because that provision takes effect and

arguably what we have been through in this matter

Smith(2) 54 29/6/94

to date forms part of the trial by force of that

section.

DEANE J: Section 5 all deals with things relating to the

trial in the sense that Justice Gaudron was

referring to?

MR MEAGHER: Yes, it does, Your Honour. Again, you have to

appreciate the chronology of this matter because

there was a mix of matters that have taken place.

There was initially an application for stay on the

grounds that we had wrongly stated the law in the

case statement. That was heard-on 25 October, and

on the 26th His Honour Mr Justice Vincent ruled in

our favour on that, dismissing that aspect of the

application. What happened after that was that

objection was taken to certain of the evidence,

namely the evidence given at the inquest. Various

objections were raised to that which led to a voir

dire with a number of witnesses being called. That

is all trial process in the ordinary sense that we

would all understand it. That took place over a

number of days and that resulted in His Honour

making orders, in p~rt disallowing one form of
proof but otherwise dismissing the objection to the
voluntariness of the evidence, but reserving the
question of his discretion.

Then, immediately upon the conclusion of that, this argument was raised again by His Honour on the same day, so at the conclusion of that we then went

into this matter which resulted in the orders for

the stay being granted. So, there was no clear cut

division between the matters and undoubtedly the

objections to the evidence, I would think, and the
decisions made on that form part of the trial,

pursuant to that provision.

DEANE J: Are to be taken as being part or part of.?

MR MEAGHER: Yes, are to be taken as being.

DEANE J: Because the earlier part of section 7 indicates

that they are not part of the trial.

MR MEAGHER: Yes.

McHUGH J:  I am not quite clear on this point, Mr Meagher.

Do you read the words, "on or in relation to the

trial or proposed trial" very narrowly, or - - -

MR MEAGHER:  Yes, Your Honour.

McHUGH J: One provision that gives your argument some

support, I notice, is section 19 dealing with

costs, that an order can be made not only against

the Crown or a party, but even against a barrister

Smith(2) 55 29/6/94

or legal representative. That is in respect of

section 4 and section 5. If your argument is

incorrect, those persons would have no right of

appeal here against an order.

MR MEAGHER:  Yes. You could, though, extend that to all

manner of things, Your Honour. There are often

compensatory orders made which you would be looking

for a right of appeal, I should say. I have not

troubled to go to all that because I think, quite

frankly, from my client's point of view, the
director's point of view, that we very much want
this question of jurisdiction resolved because it

leaves us not knowing where to go, as was the case

here. We went to the Full Court because of

Boehm's decision.

If there are no other matters, might I finish

by - yes, the decision on section 85(3) and

subsection (5) is that of City of Collingwood v

State of Victoria.	It is referred to at 1.28, it
is set out at 1.28 of the material.	I do not know

how helpful it is going to be because - - -

McHUGH J:  I think it came up here on a special leave

application.

MR MEAGHER:  Yes. Might I conclude by saying, as I gave

notice on the application for special leave, might I say again that in the event that the Court found

that there was no jurisdiction in the Full Court,

we would then seek leave to bring an appeal to this

Court against Mr Justice Vincent's order.

MASON CJ:  You filed a special leave application.

MR MEAGHER:  And we have done so, yes. But there is no

point in us going further on that until we hear

what the Court's decision is. If the Court

pleases.

MASON CJ: Thank you, Mr Meagher. Yes, Mr Weinberg.
MR WEINBERG:	On the question of compensatory orders that I

think my friend referred to, there is in fact a

specific provision allowing for an appeal to the

Full Court in the Crimes Confiscation of Profits

Act. I think it is section 51.

McHUGH J: What about the section 19 order?

MR WEINBERG:	I had not put my mind to that, Your Honour, and I do not have an immediate answer to it, but we
say there is a difference between a barrister who
has been found to have protracted the trial and had
an order made against him and the traditional

Smith(2) 56 29/6/94

position of the Crown, which we say is embodied in

a very long history indeed.

McHUGH J:  It is not merely the barrister, but it could be

the Crown or the accused. Now, there is certainly no right of appeal under Part VI of the Crimes Act in respect of an order for costs, is there?

MR WEINBERG:  Your Honour, I do not believe there is. I

seem to recall that there have been some cases in

England of barristers being mulcted for costs for

protracting trials under the Criminal Justice Act

or - they have similar provisions and I think there have been appeals in England but I could not direct Your Honour to authority immediately on that point.

My friend did submit to the Court that the

decision in Boehm had been followed on a number of
occasions. It has, of course, but never in respect
of the two observations at page 502 as to whether

the Crown has a right of appeal which we say were

dicta in the case and we submit were erroneous.

The case has been followed, of course, and applied

in cases such as Clarkson. Reference has been made

to it in the bail cases, Kanfouche and Beljajev.

None of those involve the kinds of considerations

we submit that-arose in this appeal.

My friend referred to the P~blic Prosecutions Act which, as I understand it, is not yet in force.

I think it comes into force on•l July, which vests

in the Director of Public Prosecutions or purports

to vest in him a function permitting him, and the

word is an appeal, unspecified location, in respect of a decision to grant a permanent stay. That Act, of course, was passed at the time when the decision

of this Court in Boehm had been handed down
confirming that he had a right of appeal, and also

in the light of the observations in Boehm's case,
and we submit my friend cannot get very much

comfort out of a provision of an Act which vests in

the Director of Public Prosecutions a function

predicated upon a belief that there is jurisdiction
in the court to entertain an appeal, when, if this

Court rules that there is no jurisdiction, then he

will have a function without a power capable of

being, in effect, exercised because the Court will

have no jurisdiction.

The provision may be there in the event that

the Parliament of Victoria does what the New South wales Parliament did, and enacts a provision which

clearly and in terms gives the Crown the right of

appeal. In the light of the fact that the

Parliament has been prepared to give him this
function, it is perfectly possible that the

Parliament of Victoria will similarly enact a

Smith(2) 57 29/6/94

provision which gives the Full Court the

jurisdiction which we say at present it lacks. But

that does not detract, in our submission, from the

fact that on the construction of the provisions

which govern this case, we submit, there is no

jurisdiction.

My friend raised the question, I think in

answer to a question, as to whether a supreme court

judge could enter a verdict of acquittal from a

decision of the magistrate. I cannot really assist

with that other than to draw the Court's attention
to section 92 of the Magistrates Court Act of

Victoria 1989, I think it is, which is the section

which allows appeals on questions of law from a

magistrate to the supreme court. There is no doubt that the supreme court judge has the power to quash the decision of the magistrates court. In

practical terms, we submit, that does have the

effect of an acquittal although it is not a verdict

verdict of acquittal. of acquittal in the sense that a jury gives a

So far as the matter that Your Honour

Justice Gaudron raised just a moment ago in relation to trial or proposed trial, there is some

authority on the question of what is meant by a

trial and when a trial commences in Victoria.	We
draw the Court's attention to R v Symons, (1981) VLR 297, in which the members of the Court of
Criminal Appeal are determined that the word
"trial" as used in a particular section of the

Crimes Act, section 359A, is a reference to the arraignment of a person. The trial commences at arraignment and not when empanellment occurs.

There is contrary authority in England, Reg v

Tonner and Evans, (1985) 1 WLR 345, in which the

English courts have held that a trial commences for relevant English purposes when a jury is empanelled

but, in our submission, section 7 and the Victorian authority, having regard to the fact that it is now

provided conveniently, we say, by legislation in

Victoria, the whole range of rulings can be made by trial judges post-arraignment and before

empanellment, that a trial does commence from the

moment of arraignment. In this case,

Mr Justice Vincent is the trial judge and these

appellants were arraigned before His Honour.

Failing that, we say in any event this is in

relation to a proposed trial on any view of those

words.

The final matter, Your Honours, was the applicability of section 85(5) of the Constitution

Act, and what we say about that is that if one

looks at section 85(5) it is difficult, in our

submission, to properly give it.the meaning which

Smith(2) 58 29/6/94

our learned friend would give to it, namely that it

applies to all Acts of the Victorian Parliament,

whether enacted before or after 1991.

Subsection (5) reads:

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 -

This being a later section of a later Act of

Parliament would, if it were inconsistent with an

earlier Act, itself repeal, alter or vary that

earlier Act, and therefore it would be unnecessary,

in our submission, to have a provision such as

subsection (5) if it were intended to apply to

earlier Acts. We say that subsection (5) is

intended to apply henceforth to Acts which were

enacted after 1991 and provides a formula which

shall henceforth be used in the event that it is

intended to amend the Constitution and that it does not have the retrospective effect which our learned friend contends.

There is one other matter perhaps that I

should mention. We thought our learned friend said

at one poi:nt that he conceded here that the
observations at page 502 were dicta. His
submission below was that those observations were
ratio and indeed, the.Court of Criminal Appeal

accepted that it was bound by Boehm's case because

it said that those observations formed part of the

ratio of the case. If I have misunderstood my

friend then I am sorry, but that was my

understanding of what he had said to the Court in

relation to those passages in answer to a question

that I think Your Honour Justice Dawson asked him. So far as the question of whether a Full Bench

was constituted or not, we submit it is of no

particular relevance at this point because special

leave has been granted. There are important

questions here at stake and we submit that the

Full Court of Victoria has on many occasions

constituted its own Full Bench when it deems it

appropriate to do so because it thinks that an

earlier decision requires reconsideration. It did

not do that in this particular case but there is
nothing in our submission which should be adverse

to the appellants if its arguments about

jurisdiction are otherwise sustainable. Those are

the submissions on the question of jurisdiction.

MASON CJ:  Mr Weinberg, how long will the balance of your

argument take on the rest of the appeal?

MR WEINBERG: Quite some time, Your Honour.

Smith(2)	59	29/6/94
MASON CJ: But how long?

MR WEINBERG: Half a day. What we were going to propose to

the Court, if it were convenient, would be to await
the outcome of the decision on jurisdiction, with a

reservation of our rights in the event that we were

unsuccessful on the jurisdiction point to pursue

the appeal on the balance of the matters. we would

readily accept the proposition that if we were

successful on jurisdiction we would not wish to

pursue the other grounds on appeal because we know

that our friend has a special leave application

which fundamentally raises the mirror image of

those questions. So, our position would simply be

that we wish to reserve our rights on grounds 2 and

3 in the event that we are unsuccessful on the

jurisdiction point. If we were otherwise

successful on the jurisdiction point we would

abandon the other grounds and not seek to pursue

them.

MASON CJ:  Mr Meagher, what is your attitude to that

proposal and how long would you take in responding

to grounds 2 and 3 in the notice of appeal?

MR MEAGHER:  Ground 2 we would be about an hour. Ground 3,

depending upon how broad the debate ranges, it

could be a couple of hours. I am sorry to be

difficult about that but I am just not clear at the

moment, even though I have read the submissions,

just how broad that debate is going to be.	We are
faced with this.	We do want to get on with this

trial. It has just been outstanding for a long

time now and we would like to have matters resolved

as soon as possible, but if it is convenient to the Court to resolve the first ground first because, as

we indicated, we do want a decision - - -

MASON CJ:	On jurisdiction?
MR MEAGHER:

- - - on jurisdiction because it affects the

operation of matters in Victoria very much.

MASON CJ: Yes. Our concern is, of course, not merely with

this case but with the many other cases in this

list and we would not want to embark on the

remaining questions if it prejudices the hearing of

the remaining cases in the list or a number of

them.

ME MEAGHER:  I have indicated the time, Your Honour. We

will abide by whatever is convenient to the	Court
and say no more than we are anxious to have	it all
determined as soon as possible.

Smith(2)	60	29/6/94
MASON CJ:	Yes.	The Court will take a short adjournment in

order to consider the course it will take in this

matter.

AT 12.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.48 PM:

MASON CJ: The Court will consider its decision on the

questions argued thus far and will stand the

balance of the case over to a date to be fixed.

MR WEINBERG: If the Court pleases.

MR MEAGHER: If the Court pleases.

AT 12.49 PM THE MATTER WAS ADJOURNED SINE DIE

Smith(2) 61 29/6/94