Thompson v Mastertouch TV Service Pty Ltd (No 3)

THOMPSON v. MASTER-TOUCH T.V. SERVICE PTY. LTD. (No. 3) (1978) 38 FLR 397
Criminal Law - Appeals - Statutes

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Smithers(1), Riley(2) and Deane(3) JJ.

CATCHWORDS

Criminal Law - Appeals - Jurisdiction of Federal Court of Australia - Appeal from judgment of acquittal from single judge of Federal Court - Federal Court of Australia Act 1976 (Cth.), s. 24.

Appeals - Trade practices - Offence - Federal Court of Australia - Jurisdiction "to hear and determine appeals" - Acquittal - Appeal from - Federal Court of Australia Act 1976 (Cth.), s. 24.

Statutes - Interpretation - Principles of - Appeals - Fundamental principles - Jeopardy of appeal from acquittal - Right to be spared - Interpretation consistent with common law principles.

HEADNOTE

The respondent was, on the information of the appellant (an officer of the Trade Practices Commission) charged with an offence under s. 79 of the Trade Practices Act 1974. The charge was heard by Franki J. His Honour held that the appellant had failed to prove the offence and dismissed the information with costs.

The appellant purported to appeal, as of right. Objection to the competency of the appeal was taken on the grounds that the judgment and orders appealed from constituted a judgment of acquittal given in criminal proceedings in favour of the respondent from which the unsuccessful prosecutor lacked authority to institute, and the court lacked jurisdiction to hear, an appeal.

Held: (1) The proceedings before the learned judge at first instance were criminal proceedings.

(2) An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellant process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. It is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration of the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. The general words used in s. 24(1)(a) and (b) to confer jurisdiction "to hear and determine appeals" do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist and the right of the subject which finds expression in that principle. Namely, the right to be spared the jeopardy of an appeal from acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms, be given such effect and which contains nothing that points clearly or unmistakably or at all to that effect as either having been contemplated or intended.

R.v.…