Thompson v Mastertouch TV Service Pty Ltd (No 3)

[1978] FCA 44

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. Chairman and Justices of the County of Tyrone (1905), 40 Ir LT 181; The King v. Tucker (1824), 3 B & C 544; 107 ER 835; The Queen v. Keeper of the Peace and Justices of the County of London (1890), 25 QBD 357; Benson v. Northern Ireland Road Transport Board, (1942) AC 520; Wall v. The King; Ex parte King Won and Wah On (1927), 39 CLR 245, applied.

The King v. Wilkes (1948), 77 CLR 511; Peel v. The Queen (1971), 125 CLR 447, considered.

HEARING

Sydney, 1978, May 1-2; June 23. #DATE 23:6:1978

APPEAL.

Objection to the competency of an appeal against a dismissal by Franki J. of an information laid against the respondent alleging an offence under s. 59 of the Trade Practices Act 1974.

C.A. Porter Q.C. and B.T. Sully, for the appellant.

G.G. Masterman Q.C. and G.A. Crawford, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Alan R. Neaves (Commonwealth Crown Solicitor).

Solicitors for the respondent: B. Neill & Co.

D. SHAVIN

JUDGE1

June 23.

The following judgments were delivered.

SMITHERS J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Deane. I agree therein and with the order proposed. (at p398)

JUDGE2

RILEY J. In this matter I have had the advantage of reading the judgment of Deane J. and am in agreement with it and the orders proposed, and there is nothing I wish to add. (at p398)

JUDGE3

DEANE J. The respondent, Mastertouch T.V. Service Pty. Ltd. was, on the information of the appellant who is an officer of the Trade Practices Commission, charged with an offence under s. 79 of the Trade Practices Act 1974-1976. The charge was heard by Franki J. in the exercise of the court's original jurisdiction. His Honour found that the appellant had failed to prove the offence and dismissed the information with costs. The appellant purports to appeal, as of right, from the learned judge's judgment and orders. (at p399)

1. At the commencement of the hearing of the appeal, senior counsel for the respondent indicated that he wished to submit 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 this Court lacked jurisdiction to hear, an appeal. Full argument was heard upon this question. Subsequent to the conclusion of that argument, the presiding judge stated that we had reached the conclusion that the objection to jurisdiction was well based and that, in the circumstances, we did not wish to hear any further argument on the merits of the appeal. It was indicated that we would, in due course, publish our reasons for that conclusion and make whatever order was thought appropriate in relation to costs. (at p399)

2. The offence with which the respondent was charged before Franki J. was that, in contravention of the provisions of s. 59 of the Trade Practices Act, it had made a false statement concerning the profitability of a business activity which it had represented as being a business activity that could be carried on at a person's place of residence. The relevant false statement was alleged to be found in an advertisement which had appeared in the Canberra Times newspaper of 13th March, 1976. (at p399)

3. Section 79 of the Trade Practices Act 1974-1976 provided that a person who contravened the provisions of, inter alia, s. 59 was
   
   

"guilty of an offence punishable on conviction -

(a) in the case of a person not being a body corporate - by a fine not exceeding $10,000 or by imprisonment for a period not exceeding 6 months; or

(b) in the case of a person being a body corporate - by a fine not exceeding $50,000." (at p399)

1. The provisions of this section were altered by the Trade Practices Amendment Act 1977 by deleting the words in italics. The relevant amendment became effective on 1st July, 1977, which was after the conclusion of the evidence but before judgment was delivered by the learned judge at first instance. Apart from the effect of such amendment, the provisions of s. 79 remain in the form in which they existed at the time of the alleged commission of the offence. (at p399)

2. The proceedings before the learned judge at first instance were criminal proceedings. They resulted in an acquittal of the respondent after a hearing on the merits. The appellant seeks to have that acquittal set aside and to obtain orders convicting the respondent of the offence alleged against it and imposing an appropriate penalty. It is common ground between the parties that this Court lacks jurisdiction to hear the appeal and the appellant lacks authority to institute it unless such jurisdiction and authority are conferred by the general provisions of s. 24 of the Federal Court of Australia Act 1976 defining the court's appellate jurisdiction. As an aid to the construction of s. 24, the appellant points to other provisions of the Act, in particular, the definition of "judgment" contained in s. 4 and certain of the provisions of s. 28. (at p400)

3. The Federal Court of Australia Act established this Court as a superior court of record with both original and appellate jurisdiction. The general appellate jurisdiction of the court is defined by s. 24 of the Act. Subsections (1) and (2) of that section provide:
   
   

"(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine -

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.

(2) On or after the commencing day an appeal shall not be brought to the High Court from a judgment of the Supreme Court of a Territory except -

(a) in accordance with special leave given by the High Court on or after the commencing day; or

(b) in accordance with leave or special leave given by the High Court or the Supreme Court before the commencing day." (at p400)

1. By s. 4 of the Act, "judgment" is defined as meaning "a judgment, decree or order, whether final or interlocutory, or a sentence". Section 28 of the Act provides inter alia:
   
   

"(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction -

(a) affirm, reverse or vary the judgment appealed from; . . .

(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;

(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; . . .

(5) The powers of the Court under sub-section (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence." (at p401)

1. In support of its submission that the appeal was not competent, the respondent sought to rely on what it claimed to be a well-established principle of the common law, namely, that there should be no appeal from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits. It was submitted that the alleged principle was fundamental to the administration of criminal justice and that legislation should only be construed as involving a departure from it if, and to the extent that, such a departure was the result of express and unambiguous words. (at p401)

2. In R. v. Chairman and Justices of the County of Tyrone (1905) 40 Ir LT 181 , Palles C.B. and Gibson J., by certiorari, quashed a conviction which had been entered and a fine which had been imposed at quarter sessions on an appeal from justices who had dismissed the charge. The Chief Baron stated that it was "a broad principle of common law" that "an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court" and added that it was "settled principle" that "before you can appeal against an acquittal, the words must be clear, express and free from any ambiguity" (1905) 40 Ir LT, at p 182 . As support for these general principles, Palles C.B. referred to comments to similar effect which had been made by Abbott C.J. in The King v. Tucker (1824) 3 B & C 544; 107 ER 835 and by Coleridge C.J. and Wills J. in The Queen v. Keeper of the Peace and Justices of the County of London (1890) 25 QBD 357, at pp 360, 362 . The Chief Baron's statements of general principle were quoted with approval by Viscount Simon L.C. in Benson v. Northern Ireland Road Transport Board (1942) AC 520, at pp 526-527 in a speech with which the three other members of the House of Lords who participated in the decision (Lord Atkin, Lord Wright and Lord Porter) expressed concurrence. The question involved in Benson's case was whether the Summary Jurisdicion and Criminal Justice Act (Northern Ireland) 1935 conferred jurisdiction upon the Court of Appeal of Northern Ireland to reverse a decision of a court of summary jurisdiction dismissing a summons alleging an offence under the Road and Railway Transport Act (Northern Ireland) 1935 and ordering the complainant to pay a sum in respect of costs. Their Lordships held that it did not. In the course of his speech, Viscount Simon L.C. referred to the principle that there should not ordinarily be any appeal from an acquittal made by a court of competent jurisdiction as "an extremely important and universally accepted principle of our law, and a principle which had been recognized again and again by the highest authorities both in England and in Ireland" (1942) AC, at p 526 . His Lordship concluded that "very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge" (1942) AC, at p 528 . (at p402)

3. In each of the above-mentioned four cases, the relevant acquittal had been on an information or complaint laid before justices. In The King v. Tucker (1824) 3 B & C 544; 107 ER 835 Abbott C.J. (with whom Bayley and Holroyd JJ. concurred) drew a distinction between the "dismissal of the complaint in consequence of a mistake of the law" and "a dismissal upon a hearing of the merits". Examination of the relevant facts indicates, however, that the justices, in that case, had in fact refused to embark upon the actual hearing of the case and it is clear that his Lordship's comments must be understood in that context. In Benson's case (1942) AC 520 the only issue involved before the court of summary jurisdiction was essentially a question of law. It is apparent that any general principle recognized by the above cases applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law. (at p402)

4. The nineteenth century English and Irish cases in which the general principle of no appeal from a judgment of acquittal received recognition, were cases arising from the proceedings of inferior courts. This is explained by the fact that it was only in respect of the decisions of such courts that appellate procedures were ordinarily available at all in respect of criminal proceedings. Writ of error could be brought by a convicted person "for notorious and substantial mistakes in the judgment or other parts of the record" (Stephen, New Commentaries on the Laws of England, (1863 ed.), vol. 4, p. 548). The 1848 Crown Cases Act had allowed the judge or justices presiding in a criminal trial to reserve any question of law for all the judges and barons, but only in the case of a conviction. Otherwise there was ordinarily no appeal in English courts from either acquittal or conviction in a criminal trial until 1907 when, by the Criminal Appeal Act of that year, a right of appeal was given to persons convicted. (at p402)

5. There are some exceptions to the principle of no appeal from an acquittal to be found in nineteenth century cases in England and Ireland. Some of these cases involved recognition and acceptance by the courts of a legislative intent, clearly expressed in the relevant statute, that there should be an appeal from a judgment of acquittal (see, e.g., Davys v. Douglas (1859) 4 H & N 180, at p 184; 157 ER 806, at p 808 ). Most of them, however, involved special circumstances in that either the judgment of acquittal had been the result of an erroneous upholding of a demurrer by which the accused was taken to have admitted the facts on which he should have been convicted (The Queen v. Houston (1841) 4 ILR 174, at p 175 ) or the judgment of acquittal had been given on a special verdict and error was brought on the judgment pronounced on the special verdict (The Queen v. Millis (1844) 10 Cl & Fin 534, at p 536; 8 ER 844, at p 845-846 ; The Queen v. Chadwick (1847) 11 QB 205; 116 ER 452 ). Some other apparent exceptions to the general rule (see, e.g., The King v. Tucker (1824) 3 B & C 544; 107 ER 835 and the comments of Lord Denman C.J. and Coleridge J. in The Queen v. Wilson (1844) 6 QB 620, at pp 627, 629; 115 ER 233, at pp 236-237 ) are to be explained on the ground that the judgment of acquittal had not been entered after a hearing on the merits. Apart from any qualification which might need to be made as a result of such cases, and putting to one side the difficult question whether the Sovereign remained entitled to gain a new trial if error appeared on the face of the record and the acquittal had been obtained by "fraud or treachery", the principle that no appeal should lie from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits was, by the end of the nineteenth century, entrenched as "well settled" and "elementary" (per Palles C.B., R. v. Chairman and Justices of the County of Tyrone (1905) 40 Ir LT 181 ) principle of the common law and as a fact in the administration of criminal justice in England and Ireland. The principle is ordinarily stated in abstract terms without specific reference to the underlying common law right which it embodies. As a matter of convenience it is so stated, on a number of occasions, in the course of this judgment. It is, however, important that the statement of the principle in that form neither conceals nor clouds that it is, in essence, the statement of a common law right, namely, the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal. (at p403)

6. The position in so far as colonial courts were concerned was not quite so clear. Except to the extent to which it had been renounced by statute or charter, the inherent prerogative of the Crown in Council to entertain an appeal from colonial courts in any matter, whether civil or criminal, and by whichever party to the proceedings the appeal was brought, persisted R. v. Bertrand (1867) LR 1 PC 520 ; Attorney-General for Ceylon v. Kumarasinghege (1953) AC 200, at pp 202-204 ). The residual power of the Sovereign in Council to grant leave to appeal in criminal matters was, however, even in the nineteenth century, only to be exercised on "very rare" occasions (R. v. Bertrand (1867) LR 1 PC, at p 530 ). The existence of the power was of little practical importance in the ordinary administration of criminal justice and there is no reported instance of leave being granted by the Sovereign in Council to appeal from a judgment of acquittal pronounced by a court in any of the Australian colonies after a hearing on the merits other than where the original judgment had been of conviction and where the judgment of acquittal had been entered by an appellate court in the course of an appellate chain which the accused had himself initiated. (at p404)

7. The main departure from the principle of no appeal from a judgment of acquittal in the administration of criminal justice in the Australian colonies and States is to be found in legislative provisions providing for the review of decisions of justices. Thus, in Rider v. Freebody (1898) 24 VLR 429 , the Full Court of the Supreme Court of Victoria held that an order to review an acquittal by a Court of Petty Sessions or justice could be obtained by a disappointed informant pursuant to the provisions of s. 141 of the Justices Act 1890 (Vic.). Comparable legislative provisions providing for review of decisions of justices (including acquittal after a hearing on the merits) have been and remain not uncommon in the legislature of Australian States and Territories and have been accepted and recognized by Australian courts (see, for example, Justices Act 1886 (Q.), ss. 209 (1) and 222 (1), Beer v. Toms; Ex parte Beer (1952) QSR 116, at pp 119ff and Schneider v. Curtis (1967) Qd R 300, at p 306 ; Justices Act 1958 (Vic.), s. 155 (1) and (4) and Day v. Hunter (1964) VR 845 ; Court of Petty Sessions Ordinance (No. 2) 1930 (A.C.T.), ss. 207 and 208 and Davies v. Ryan (1933) 50 CLR 379, at p 382 ). (at p404)

1. Upon the establishment of the Commonwealth of Australia, the Constitution itself introduced a further departure from the principle of no appeal from a judgment of acquittal. Section 73 of the Constitution conferred upon the High Court "jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences" of any justice or justices exercising the original jurisdiction of the High Court, of any other federal court or court exercising federal jurisdiction and from the Supreme Court of any State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council. (at p404)

2. In Attorney-General for New South Wales v. Jackson (1906) 3 CLR 730 it was held by the High Court that the jurisdiction conferred upon it by s. 73 of the Constitution clearly included jurisdiction to hear an appeal against a decision of the Supreme Court of New South Wales which had quashed a jury's verdict that the respondent was guilty of murder and which had discharged the respondent from custody. The High Court reversed the judgment of the Supreme Court and confirmed the conviction. In one sense, the judgment of the Supreme Court on appeal which had discharged the respondent was a judgment of acquittal. On the other hand, the principle that there should be no appeal from a judgment of acquittal had been developed and expressed in cases in which the relevant acquittal had been at the initial trial and not by an appellate court in the course of an appellate chain initiated by a person convicted in the original criminal proceedings. There are obviously some grounds for arguing that the two categories of acquittal are, for present purposes, distinguishable: such a distinction has, in fact, been recognized in United States cases arising under the double jeopardy clause of the Fifth Amendment (see United States v. Ball (1895) 163 US 662, at pp 671-672 ). It was not until 1915 that it was expressly recognized by a majority of the High Court in The King v. Snow (1915) 20 CLR 315 that the words "all judgments" in s. 73 of the Constitution included judgments of acquittal entered in the original court which heard the matter on the merits and whether or not so entered after the return of a verdict of not guilty by a jury. That case left unresolved the question of the utility of the jurisdiction in cases where the judgment of acquittal followed a jury's verdict of not guilty since it left unresolved the question whether the jurisdiction carried with it power to set the jury's verdict aside. (at p405)

3. Prior to the decisions in Jackson's case (1906) 3 CLR 730 and Snow's case (1915) 20 CLR 315 the Parliament of the Commonwealth had, by the Judiciary Act 1903 (ss. 35 and 77), regulated the appellate jurisdiction of the High Court in criminal matters by providing that, generally speaking, such appeals lay only pursuant to special leave granted by the High Court itself. The result of this general limitation upon criminal appeals has been largely to minimize any undermining effect which s. 73 of the Constitution might otherwise have had upon the principle of no appeal from a judgment of acquittal. Where issues of general importance have been involved, the High Court has been prepared to grant special leave to appeal notwithstanding the fact that the appeal was from a judgment of acquittal. Thus, for example, the High Court granted special leave to appeal against a judgment of acquittal pronounced by the Commonwealth Industrial Court after a hearing on the merits of an information under the Trade Practices Act 1965-1969 in Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 to permit a long-overdue re-examination of the scope of s. 51(xx) of the Constitution. The High Court, in considering application for special leave to appeal, has, however, itself recognized and accepted the principle and has treated the fact that it is from a judgment of acquittal that special leave to appeal is being sought as constituting a consideration favouring the refusal of leave (see, for example, Grayndler v. Cunich (1939) 62 CLR 573, at pp 581, 602 and The King v. Wilkes (1948) 77 CLR 511, at p 517 ). In the last-mentioned case, the application was for special leave to appeal from a judgment of acquittal entered by the Full Court of the Supreme Court of South Australia in favour of the respondent who had successfully appealed to that court against a jury's verdict of guilty. Dixon C.J., with whose reasons McTiernan J. expressed concurrence, treated the matter on the basis that it came within the ordinary principle that there should be no appeal from a judgment of acquittal and referred to the exceptional nature of the jurisdiction of the High Court to hear such appeals. His Honour said: "An application for special leave to appeal from a judgment of acquittal is a rare thing. According to the decision of this Court in Lloyd v. Wallach (1915) 20 CLR 299 , the terms of the Constitution are sufficiently wide to enable us to entertain an appeal from a judgment of acquittal. The judgment of acquittal in this case is the judgment of the Supreme Court as a court of criminal appeal and is contrary to the verdict of the jury and not in accordance with the verdict of the jury. We would not, of course, go behind a verdict of not guilty. In Secretary of State for Home Affairs v. O'Brien (1923) AC 603 , the House of Lords construed the Appellate Jurisdiction Act, 1876 in a way which is not quite consistent with the interpretation which this Court placed upon s. 73 of the Constitution. This Court nevertheless has continued to act upon that interpretation and has entertained applications by the Crown for special leave to appeal from judgments of acquittal given by courts of criminal appeal. We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court" (1948) 77 CLR, at pp 516-517 . (at p406)

4. His Honour's remarks appear to indicate that, in his view, the question whether the High Court would ever interfere with a verdict of not guilty entered by a jury which had been left unresolved in The King v. Snow (1915) 20 CLR 315 had, for practical purposes, been resolved, by default, in the negative. The references to Lloyd v. Wallach (1915) 20 CLR 299 and Secretary of State for Home Affairs v. O'Brien (1923) AC 603 in lieu of references to The King v. Snow and Benson v. Northern Ireland Road Transport Board (1942) AC 520 were appropriate in view of the possible distinction between a judgment (leading to a discharge from custody) obtained from an appellate court in the course of an appellate chain instituted by a person who was initially convicted and a judgment of acquittal obtained from the court originally dealing with criminal proceedings. The words used by his Honour appear to indicate an assimilation, in so far as principle is concerned, of the two distinct situations. (at p407)

5. Apart from the jurisdiction enjoyed by the High Court to grant special leave to appeal from a judgment of acquittal, and statutory provisions providing for review of the decisions of justices, the most significant departure, in the law of this country, from general recognition of the principle that an appeal should not lie from a judgment of acquittal on the merits in criminal proceedings is to be found in s. 401(2) of the Criminal Code Act 1924 (Tas.), which provides that the Attorney-General of that State may appeal to the Tasmanian Court of Criminal Appeal against an acquittal on a question of law alone pursuant to leave granted by that court or upon certificate of the court of trial that it is a fit case for appeal. The provisions of that section have been regarded as anomalous both in Tasmania and elsewhere (R. v. Jenkins (1970) Tas SR 13, at p 14 ; Peel v. The Queen (1971) 125 CLR 447, at pp 452ff ) and both the High Court and the Tasmanian Supreme Court have endorsed the view that leave to appeal against an acquittal should only be granted under the Tasmanian Act when wider and deeper questions are involved than the correctness of the individual verdict (see Vallance v. The Queen (1961) 108 CLR 56, at pp 62, 69, 83 ; R.v. Jenkins (1970) Tas SR, at p 16 ). (at p407)

6. Thus, at the time of the enactment of the Federal Court of Australia Act, the principle of no appeal against an acquittal in criminal proceedings was subject to general exceptions in the case of appeals to the High Court and review of the decisions of justices and to the special exception in the case of Tasmania. It is not, in these circumstances, possible, in Australia, to accord to the principle of no appeal from a judgment of acquittal either the universality or the "unchallenged and unchallengable" status which Viscount Simon L.C. accorded it in England (see Benson's case (1942) AC, at p 526 ). The principle has, however, received judicial recognition in Australian courts, including the High Court, on many occasions and its validity as a "general" and "time-honoured" principle has never, so far as I am aware, been questioned by any Australian court. More important, apart from the brief period between 1901 and the commencement of the Judiciary Act in 1903 in which, in any event, no justices of the High Court had been appointed and ignoring statutory provisions providing for review of the decisions of justices, the effect in practice of the only legislative departures from the principle has been to permit appeals from judgments of acquittal only pursuant to special leave or leave or subject to certificate from the court to which, or the court from which, the appeal lay. In the result, the legislative departures from the principle have provided the occasion for its judicial vindication as a general principle of the law. (at p408)

7. In so far as the question presently under consideration is concerned, there is no basis for drawing any relevant distinction between the provisions of cl. (a) and cl. (b) of s. 24(1) of the Federal Court of Australia Act. All of the courts referred to in those two clauses are superior courts. If s. 24(1) confers jurisdiction upon this Court to hear and determine, and authority upon the Crown or other disappointed prosecutor to institute and maintain, an appeal against a judgment of acquittal pronounced in criminal proceedings by the Federal Court constituted by a single judge, it confers like jurisdiction to hear and determine, and authority to institute, appeals from judgments of acquittal of the Supreme Courts of the Territories. If such jurisdiction is conferred, it would seemingly carry with it, in the light of s. 28(1) (e) and (f), jurisdiction to set aside a jury's verdict of not guilty in a trial and enter a verdict of guilty. It could clearly be invoked as of right in circumstances where Dixon C.J. has indicated that, assuming the High Court possesses jurisdiction to go beyond a jury's verdict of not guilty, it would never exercise it. Such a legislative departure from the principle of no appeal from a judgment of acquittal pronounced by a court of competent jurisdiction after a hearing of criminal proceedings on the merits would be without precedent in this country or England (note, however, the provisions of the Indian Code of Criminal Procedure 1898, s. 417 referred to in Kishan Singh v. The King-Emperor (1928) 55 LR Ind App 390, at p 394 ). The effect of such a departure would be that double jeopardy was at the whim of a disgruntled prosecutor even after acquittal in a trial on the merits in a superior court. To recognize how drastic such a departure from a time-honoured principle of the common law would be is not to question the legislative competence of the Australian Parliament to enact provisions having that effect. Such recognition does, however, indicate the need to examine the relevant proisions with care before concluding that the legislative intent properly to be found within them is that the general words used should be so contrued. (at p408)

8. It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. This principle has been recognized in many cases including cases in the High Court of Australia (see, for example, Potter v. Minahan (1908) 7 CLR 277, at p 304 ; Bishop v. Chung Bros. (1907) 4 CLR 1262, at pp 1273-1274 ; Commonwealth and the Postmaster-General v. Progress Advertising & Press Agency Co. Pty. Ltd. (1910) 10 CLR 457, at p 464 ; Wall v. The King; Ex parte King Won and Wah On (1927) 39 CLR 245, at pp 250, 253 ; Melbourne Corporation v. Barry (1922) 31 CLR 174, at p 206 ; and see generally Maxwell on Interpretation of Statutes, 12th ed., p. 116ff., and the cases there cited). (at p409)

9. As a matter of strict language, the words of s. 24 do not, in terms, confer a right of appeal upon anyone. They define the jurisdiction of the court to hear and determine appeals without, in terms, dealing with the right to institute an appeal. It is, however, clear that a provision conferring jurisdiction to hear and determine appeals can be appropriate to confer upon the persons whose appeals the court has jurisdiction to hear and determine, the right to institute them (Peel v. The Queen (1971) 125 CLR 447, at pp 453, 456, 460, 462, 467 ). There are many instances where the grant of jurisdiction has been regarded as carrying with it authority to invoke the jurisdiction conferred. Section 73 of the Constitution is one example. As Menzies J. pointed out in Peel v. The Queen (1971) 125 CLR, at p 456 s. 75 of the Constitution is another. The provisions of s. 24(1)(c) of the Act indicate that, in so far as appeals from State courts exercising federal jurisdiction are concerned, one will need to look to the content of the other legislation to determine the appellate jurisdiction of this Court. By contrast, the provisions of cll. (a) and (b) confer jurisdiction without reference to the content of other legislation. In the case of the jurisdiction conferred by these two sub-clauses, the grant of jurisdiction was clearly intended to be complete in itself and should be construed as carrying with it authority to invoke the jurisdiction conferred. A contrary view would render the substantive provisions of s. 24(1)(a) and (b) sterile since it would mean that they gave a jurisdiction which could not be exercised because no one could invoke it (see per Gibbs J. Peel v. The Queen (1971) 125 CLR, at p 47 ). If s. 24(1)(a) and (b) confer jurisdiction to hear and determine appeals from judgments of acquittal, they would confer upon the Crown authority to institute such appeals. It does not necessarily follow that they would, in that event, confer such authority on an unsuccessful prosecutor other than the Crown (such as the appellant). Reference will subsequently be made to that question. For the present, I assume that they would. (at p409)

10. The jurisdiction encompassed in the provisions of s. 24(1)(a) and (b) includes jurisdiction to hear an appeal from a conviction in criminal proccedings. So much at least is apparent from the words used in s. 28(1)(e). There is nothing surprising in that however. Such appeals have become (whether pursuant to leave or as of right) recognized as ordinary incidents of the administration of criminal justice. It would seem, in the light of the definition of "judgment" and the words used in s. 28(5), that s. 24(1)(a) and (b) confer jurisdiction to hear and determine, and authority upon the Crown to institute, appeals by the Crown against sentence. That question does not arise for determination in the present matter. If the subsection does confer such jurisdiction and authority, it will depart from a principle of criminal administration which; although recently referred to by the Chief Justice of the High Court of Australia as "time-honoured" (Peel v. The Queen (1971) 125 CLR, at p 452 ), has already commonly been disregarded in criminal legislation in Australia. In any event, the words indicating that the jurisdiction conferred includes jurisdiction to hear appeals by the Crown against sentence are clear and express (s. 28(5)). (at p410)

11. It was submitted, on behalf of the appellant, that s. 28(1)(e) of the Act, in stating that the court may, in its appellate jurisdiction, "set aside the verdict and judgment in a trial by indictment and order a verdict of not guilty or other appropriate verdict to be entered", provides a clear indication that the appellate jurisdiction conferred upon the court includes jurisdiction to hear appeals from acquittals. The words "or other appropriate verdict" must, it was argued, be construed as including a verdict of guilty in substitution for a verdict of not guilty if they are to have any real content. In my view, this is not so. The words "or other appropriate verdict" have a useful function to perform regardless of whether they include a verdict of guilty in substitution for a verdict of not guilty. They would, for example, be of utility where the court, in an appeal from a conviction, reached the conclusion that the conviction should be set aside for the reason that the evidence compelled a verdict of not guilty on the grounds of mental illness or that a preliminary plea of autrefois acquit or convict had been wrongly overruled or the conclusion that a verdict of guilty of a lesser offence should be substituted for a verdict of guilty of a more serious offence. In any event, s. 28(1)(e) is clearly based on the provisions of s. 73(b) of the Judiciary Act 1903 which were, in turn, based on the provisions of s. 669 of the Criminal Code (Q.) (sched. I to the Criminal Code Act 1899). In neither the Judiciary Act nor the Criminal Code (Q.) did the words "set aside the verdict and judgment", in their context, include setting aside a verdict of not guilty or a judgment of acquittal. In neither did the words "or other appropriate verdict" include a verdict of "guilty" in substitution for a verdict of "not guilty". (at p410)

12. In the result, little assistance is to be derived, in construing s. 24(1), from the provisions of s. 28(1)(e). Nor, in my view, upon ultimate analysis, do either the decisions of the High Court upon the effect of s. 73 of the Constitution or the decision of the High Court in Peel v. The Queen (1971) 125 CLR 447 on the effect of s. 68 of the Judiciary Act 1903-1932 provide any real assistance in the construction of s. 24(1) of the Federal Court of Australia Act. (at p411)

13. Section 73 of the Constitution defines the outer limits of the appellate jurisdiction of the High Court. The construction of that section involves the construction of provisions defining the amplitude of the ordinary constitutional power of the Commonwealth (see Wall v. The King; Ex parte King Won and Wah On (1927) 39 CLR, at pp 251, 253 ). Within those limits, the Constitution expressly recognizes that there can be legislative regulation and exception. The ordinary principles of construction applicable to such constitutional provisions require that the words used be given their full scope and effect. In contrast, the provisions of s. 24 lack the constitutional status of the provisions of s. 73 and are quite different in character. The principles of construction applicable to provisions conferring constitutional power upon an organ of national government are not applicable to them. Moreover, the word "all" which appears before the words "judgments, decrees, orders and sentences" and emphasizes the unrestricted nature of the jurisdiction conferred by s. 73 finds no corresponding place in the provisions of s. 24. Plainly, decisions on the scope of the jurisdiction conferred by s. 73 of the Constitution cannot be regarded as necessarily relevant to the construction of s. 24. (at p411)

1. As I read the judgments of those members of the High Court who constituted the majority in Peel v. The Queen (1971) 125 CLR 447 , their Honours accepted the proposition which had found favour with Rich J., Starke J., and Dixon J. in Williams v. The King (No. 2) (1934) 50 CLR 551, at pp 558, 560 that the general policy to be found in the statutory provision under consideration (Judiciary Act 1903-1932, s. 68) was that criminal procedure (including remedies by way of appeal) and the administration of the criminal law should be uniform in any given State although some of the offences are created by federal legislation and others exist under State law. That policy itself, if accepted, supported the conclusion of the majority justices that the statutory provisions involved should be construed as conferring upon the Attorney-General of the Commonwealth the right to appeal to the New South Wales Court of Criminal Appeal against a sentence imposed by a New South Wales court of quarter sessions for an offence against a law of the Commonwealth in circumstances where such an appeal would lie at the instance of the State Attorney-General from a sentence imposed for an offence against a law of the State. There is nothing in the judgments of the majority justices to indicate disagreement with the conclusion of Barwick C.J. that, in the absence of acceptance of such a general policy underlying the provisions under consideration, the fact that the wider interpretation of the relevant words would confer upon the Commonwealth Attorney-General the right to apply for a certificate or leave to appeal to the Tasmanian Supreme Court from a judgment of acquittal was itself a consideration weighing against such a wider interpretation. In so far as the resolution of the present matter is concerned, the judgment of Barwick C.J. is, in my respectful view, of more direct relevance than are the majority judgments. (at p412)

2. The words of s. 24(1)(a) and (b) are in completely general terms. Plainly, they need to be subjected to some limitation. The general grant of jurisdiction to hear and determine appeals from the courts specified in the sub-clauses is only meaningful in the context of established principles relating to the nature of an appeal, the circumstances in which an appeal should ordinarly lie and the locus of a person to institute an appeal. The provisions clearly do not, for example, confer either jurisdiction on this Court to set aside a decision on its own motion or authority on a complete stranger to litigation to institute an appeal from a decision. The essential question is whether, in that context, the grant of jurisdiction contained in the general words of s. 24(1)(a) and (b) should be construed as encompassing jurisdiction to hear and determine appeals brought as of right upon judgments of acquittal pronounced by superior courts in circumstances where it is a well-established and fundamental principle of the common law that no such appeal should ordinarily lie. The conclusion which I have reached is that, on their proper construction, the provisions of s. 24(1)(a) and (b) do not confer jurisdiction to hear, or authority to institute, such appeals. (at p412)

3. An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. There is no relevant legislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. As has been mentioned, it is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. Applying that principle of construction to the present case, I consider that the conclusion is unavoidable that 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. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an 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 an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended. (at p413)

4. The considerations relevant to the determination of the present matter are, in my view, essentially the same as those recognized in the following extract from the judgment of Knox C.J., Gavin Duffy, Powers, Rich and Starke JJ. in Wall v. The King; Ex parte King Won and Wah On: "A recent case in the House of Lords, Secretary of State for Home Affairs v. O'Brien (1923) AC 603 , in which the previous authorities are cited and examined, establishes the proposition that, according to the law of England, no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature, and that the Courts should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose. By virtue of the Supreme Court Ordinance 1911, as amended by Ordinance No. 10 of 1922, appeal from the Supreme Court of the Northern Territory to this Court will lie by leave of this Court from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory, whether in Chambers or in Court, including also any refusal of such Judge to make any order (Porter v. The King (1926) 37 CLR 432 ). Applying to the present case the rule laid down by the House of Lords, we think we are bound to say, in the words of the Earl of Birkenhead L.C., that an enactment couched in terms so general does not avail to deprive the subject of an ancient and universally recognized constitutional right" (1927) 39 CLR, at p 250 . (See also, per Isaacs J. (1927) 39 CLR, at p 253 .) The common law principle and the common law right under consideration in the present matter are at least as well established in Australia as the principle and right in question in that case. Indeed, as has been seen, Dixon C.J. seemed to assimilate the two principles to some extent when, in The King v. Wilkes (1948) 77 CLR 511 , he treated Lloyd v. Wallach (1915) 20 CLR 299 and O'Brien's case (1923) AC 603 as being in point to the principle of no appeal from a judgment of acquittal. The words of s. 24 of the Federal Court of Australia Act are every bit as general and lacking in express reference as the words of s. 21 of the Supreme Court Ordinance (1911-1922) (N.T.) there under consideration. The decision of the High Court in that case clearly supports the conclusion that the general words of s. 24 of the Federal Court of Australia Act confer neither jurisdiction upon this Court to hear, nor authority upon the appellant to institute, this appeal. (at p414)

5. I have already mentioned that, even if the provisions of s. 24(1) (a) were properly to be construed as conferring jurisdiction to hear and determine an appeal in a matter such as the present, it would not necessarily follow that the appellant was entitled to institute or maintain the present appeal. There is long-established authority for the proposition that an unsuccessful prosecutor (other than the Crown) in criminal proceedings should not be regarded as "a person aggrieved by the outcome" with locus to institute an appeal. The standards of the common law are not the standards of the lex talionis. An unsuccessful prosecutor may be annoyed at failing to obtain a conviction for what he thought was a breach of the law. He is not however to be regarded as "aggrieved" because someone is held not to have done wrong and to be not liable to punishment (R. v. Keeper of the Peace and Justices of the County of London (1890) 25 QBD, at p 361 ; Benson v. Northern Ireland Road Transport Board (1942) AC, at p 527 ; Ex parte Kirkpatrick (1916) 16 SR (NSW) 541, at pp 547, 553 ). Indeed, in the United States there has been a tendency to see the overall common law principle of no appeal from an acquittal in terms of the absence of locus in the State or other unsuccessful prosecutor to bring such an appeal (see, e.g., United States v. Sanges (1891) 144 US 310, at p 312 ). In Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 special leave to appeal was granted by the High Court to an unsuccessful informant. Express reference was not however made, in that case, to the question whether the unsuccessful prosecutor in the court below had locus to apply for such leave or to prosecute the appeal. It is, in the circumstances, unnecessary that I form or express any concluded view on the question whether, if s. 24(1)(a) had conferred jurisdiction on the court to hear an appeal from a judgment of acquittal in a matter such as the present, the appellant would have had standing to institute or maintain the appeal. (at p414)

6. It was not submitted on behalf of the appellant that, if the court otherwise lacked jurisdiction to hear and determine the appeal, the position was altered by reason of the order for costs which Franki J. made. In adopting this approach, the appellant was, in the view I take, correct. In that regard, the views expressed by Cullen C.J. in Ex parte Kirkpatrick (71) are to be preferred to those of the majority in the case (Grayndler v. Cunich (72) and Benson's case (73)). (at p415)

7. In the result, the appeal is incompetent and should be dismissed as such. The appellant should be ordered to pay the respondent's costs (Federal Court of Australia Act 1976, s. 43). (at p415)

ORDER

Order accordingly.