Application of Pearson [1999] NSWSC 143

1 WOOD CJ at CL: A preliminary point has arisen in this matter, going to the jurisdiction of the Court to consider an application made under Part 13A Crimes Act 1900, for an inquiry into a conviction for an offence arising under federal law. BACKGROUND 2 The matter has a long and chequered history. The Applicants, Neil Pearson and Neil Pearson & Company Pty Limited, are importers of commercial laundry washer-extractors. A dispute concerning the appropriate customs tariff classification, and the rate of customs duty, applicable to the machines imported by them, came before the Administrative Appeals Tribunal, and was determined on 1st August 1989. This was followed by an information, charging the applicants with various offences under S234 of the Customs Act 1901 (Cth), that was laid in the Local Court. 3 Before that matter came on for hearing, appeals to the Federal Court, and to the Full Federal Court, from the decision in the Administrative Appeals Tribunal, were heard and determined on 27 June 1990, and 8 March 1991,respectively. 4 The information came on for hearing, before Magistrate Gould, in August/September 1991. The applicants were convicted, in respect of fourteen charges, on 11 September 1991, and pecuniary penalties were imposed. They then appealed to the District Court, pursuant to s122 of the Justices Act. 5 The de novo appeal came before Hosking DCJ, and was heard by him, over several days, during August 1993 and March 1994. In June 1994, Hosking DCJ was requested to state a case to the Court of Criminal Appeal. On 1 December 1995, the decision of that Court was handed down. 6 The proceedings came back before Hosking DCJ on 2 February 1996. On that occasion, after declining applications by Mr. Pearson and his company, to reopen their case, and then to state a further case for the Court of Criminal Appeal, his Honour found the offences proved and confirmed the convictions that had been recorded in the Local Court. 7 On 3 May 1996, an application, in the nature of a certiorari, came before the Court of Appeal in respect of the rulings made by Hosking DCJ. On 12 July 1996, that application was dismissed. A subsequent application to the High Court for special leave to appeal was refused. 8 It may be taken that in dealing with the offences, the Local Court, and the District Court, were exercising Federal jurisdiction conferred pursuant to SS 39(2) and 68(2) of the Judiciary Act 1903 (Cth). 9 The applicants have now brought an application to this Court pursuant to S 474D of the Crimes Act 1900, for an inquiry into their conviction. The order they seek is that the Court refer the case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912 (S474E(1)(b) and S474 L). 10 The Attorney General for New South Wales and the Collector of Customs were notified of the application. Each foreshadowed an objection, upon the ground that the Supreme Court lacks jurisdiction to entertain an application of this kind, where it is brought by a person convicted of an offence arising under Commonwealth law. I determined that it was appropriate to hear argument upon that point,, before embarking upon any consideration of the application upon its merits. By following this course, I do not regard any of the parties to have submitted to the jurisdiction of this Court, or to have otherwise waived any right to argue the matter, on the merits, should it be held that this Court does have jurisdiction to entertain the application. As the jurisdictional question involved a matter arising under the Constitution, notice has been given to all other States and Territories under S 78B of the Judiciary Act. No other State or Territory has sought leave to intervene. 11 The question which arises for determination is whether a person convicted and sentenced in New South Wales, in respect of a summary offence under Federal law, can bring an application for an inquiry into such conviction or sentence, under Division 3 of Part 13A of the Crimes Act. 12 Relevantly, Division 3 of Part 13A contains the following provisions: "474D (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) … 474E (1) After considering an application under section 474D or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a prescribed person into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the repealed provisions, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). 13 The procedure for, and the action to be taken upon completion of any inquiry conducted following a direction made under S 474E (1)(a), (or under S 474C, for those cases that fall within Division 2 of Part 13A, following presentation of a Petition to the Governor), is prescribed in Division 4 of Part 13A, which relevantly provides: 474G (1) An inquiry under this Division is to be conducted by: (a) a prescribed person appointed by the Governor, if the conduct of an inquiry was directed by the Governor; or (b) a prescribed person appointed by the Chief Justice, if the conduct of an inquiry was directed by the Supreme Court. (2) The prescribed person conducting the inquiry has: (a) the powers, authorities, protections and immunities conferred on a Commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923; and (b) in the case of a person who is a Judge of the Supreme Court or whose instrument of appointment under this section expressly so provides, the powers and authorities conferred on a Commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17). (3) … (4) … 474H (1) On completing an inquiry under this Division, the prescribed person must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to: (a) the Governor, in the case of an inquiry held on the direction of the Governor; or (b) the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court. (2) The prescribed person may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal: (a) for consideration of the question whether the conviction should be quashed (in any case in which the prescribed person is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or (b) for review of the sentence imposed on the convicted person (in any case in which the prescribed person is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence). (3) After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter (together with a copy of the prescribed person's report) to be sent to the Governor. (4) The Governor may then dispose of the matter in such manner as to the Governor appears just." 14 In addition, Division 5 of Part 13A makes provision in relation to matters referred to the Court of Criminal Appeal, as follows: "474L On receiving a reference under S 474C(1)(b) or 474E (1)(b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and the Act applies accordingly." 15 In summary, the points sought to be argued on behalf of the Collector for Customs, (who took up the matter on behalf of the Commonwealth), and the State of New South Wales, are as follows: (a) As a matter of statutory interpretation, the power to refer a case to the Court of Criminal Appeal under S 474 E(1)(b) of the Crimes Act is confined to matters in respect of which an appeal would otherwise lie to that Court, and hence is not applicable to a case of the present kind where the applicants were convicted of a summary offence; (b) As a matter of statutory interpretation, Division 3 of Part 13A Crimes Act 1900 applies only to persons convicted under State laws, and not to Federal offenders. (c) The power exercised under S 474E(1) of the Crimes Act is not a judicial power, or a power incidental or ancillary to such a power, and hence is not available to be exercised by a State Court, in respect of a Federal offence, by reason of the Boilermakers Case (R v Kirby: ex parte Boilermakers Society of Australia (1956) 94 CLR 254). 16 I shall deal with these points in turn, noting before I do that the Commonwealth does not have a statutory scheme for inquiring into convictions or sentences for Federal offences. Part VII C of the Crimes Act (Cth) which deals with pardons, the quashing of convictions and spent convictions, does not provide any analogous mechanism for inquiry into convictions for federal offences, or any right to seek a review post conviction. APPLICATION OF DIVISON 3 OF PART 13A OF CRIMES ACT 1900 TO OFFENCES DEALT WITH SUMMARILY 17 It was submitted that, by reason of the existence of the power under Part 13A (both under S 474C(1)(b) and S 474E(1)(b)), to refer a case to the Court of Criminal Appeal "to be dealt with as an appeal under the Criminal Appeal Act 1912", it was implicit that the Part can only have application to persons convicted on indictment, in the District Court or in the Supreme Court. This submission was based on the circumstance that an appeal does not lie to the Court of Criminal Appeal in respect of convictions for summary offences dealt with by Magistrates, or by Judges of the District Court on appeal from Magistrates, (S 146 Justices Act 1902) (NSW). 18 Attention was drawn additionally, to the existence of a mechanism, under Part 4A of the Justices Act 1902, whereby, after inquiry, the Local Court is now given jurisdiction to annul convictions, penalties and orders in summary proceedings, upon application by a person, (S 100D) or upon referral by the Minister, where the holder of that office is "satisfied that a question or doubt has arisen as to the guilt of the person or the person's liability for a penalty." (S100 G). The existence of such a jurisdiction, it was submitted, is inconsistent with any legislative intent that Part 13A Crimes Act should extend to permit an inquiry into convictions for summary offences, whether entered in the Local Court or in the District Court, after a hearing de novo following appeal to that Court. 19 In reply, the applicants submitted that there was no warrant for reading down Part 13A in this fashion. In advancing this proposition, it was pointed out that S3 of the Crimes Act, states that the Sections mentioned in the Second Schedule, which include the provisions of Part 13A, "so far as their provisions can be applied, shall be in force with respect to all offences … and in whatsoever Court tried". Had there been a legislative intent to limit the application of Part 13A, in the manner contended, then so it was submitted, it might have been expected that in the definition section to that Part, (S 474A) or otherwise, the Act would have so provided. 20 This submission was said to derive support from the legislative history, which in 1992 saw an amendment made to the forerunner to Part 13A (S475 Crimes Act 1900), which had replaced the procedure for post conviction inquiries introduced by the Criminal Law Amendment Act of 1883 (ss 383 and 384), so as to insert the words "in any Court" into S 475(1). It then read "whenever, after the conviction in any Court of any person, any doubt or question arises as to his guilt…". The explanatory note to the amending provision stated in part: "The proposed amendments will enable the Supreme Court to give such a direction or application by or on behalf of any convicted person, making it clear that such a direction may be given in respect of a conviction in any Court and enable such a direction to be given to any judicial officer." 21 When S 475 was itself replaced by Part 13A upon enactment of the Crimes Legislation (Review of Convictions) Amendment Act 1993, it was submitted, there was no manifestation of any intention to do anything other than to broaden (and not to narrow) the review procedure: See the Explanatory note to the Bill and the Second Reading Speech, Hansard, Legislative Council, 27 October 1993 pp 4487-4488). 22 This Act, it may be noted, amended the Crimes Act and the Criminal Appeal Act 1912, with the effect of, inter alia, broadening the powers of the person conducting the inquiry, and of enabling that person to refer a case to the Court of Criminal Appeal, for review by it, if that person was of the opinion that there was a reasonable doubt as to the guilt of the accused person. 23 The 1993 Act, it may be also noted, was further amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996, which amended S 474E (1) to provide that, after considering an application for an Inquiry into a conviction, the Court could refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal, and to extend the Section to sentences, as well as to the proceedings giving rise to conviction and sentence. Its obvious purpose was to clarify and improve the procedure for review (see the Second Reading Speech, Hansard, Legislative Council 12 September 1996, pp 4095-4096). 24 In relation to the existence of the review mechanism under the Justices Act 1902, it was submitted, that those provisions had no application where the conviction was entered in the District Court, following a rehearing, since the Part was prescribed as applicable to "review procedures for convictions, penalties and orders made by magistrates in summary proceedings." (S 100A of the Justices Act) 25 Even if this Part could apply to permit a magistrate to review a conviction for a summary offence, confirmed in the District Court, then it was submitted, this would not necessarily bar review by the Supreme Court under Part 13A. Being a remedial provision, it was argued, Part 13A should be interpreted beneficially (Varley v Attorney General (1987) 24 A CrimR 413 at 428) so as to afford the utmost relief which the fair meaning of its language would allow: see also The Pieve Superiore: Giovanni Dapueto v Wyllie & Co (1874) L.R. 5 P.C. 482 at 492; cited with approval by Street CJ in Fleming v White (1981) 2 NSWLR 719 at 722, where his Honour also observed, relevantly for the submission earlier noted, that "a Court of Petty Sessions is in every sense a Court: Justices Act 1902, S 5" (ibid) 26 In the Application of Mathews (Supreme Court of New South Wales 10 June 1994, unreported) Abadee J, did in fact entertain an application under S 474D of the Crimes Act, in relation to a summary conviction in the Local Court upon a charge of offensive conduct. No question as to jurisdiction was raised, the application being dismissed upon the basis that no doubt or question as to jurisdiction was raised. 27 The extension of jurisdiction to summary offences was not the subject of express discussion in the explanatory notes, or in the Parliamentary debates, at the time of the various amendments, save so far as the width of the expressions variously employed might suggest that the legislature intended to include those offences in the review procedure. The point at issue is a significant one, since if the applicant's submission is correct then the reach of the jurisdiction of the Supreme Court under Part 13A is exceedingly wide. 28 That it was intended to be so wide is by no means clear. By reason of the nature of the right of appeal to the District Court, conferred in relation to summary offences (Division 4 of Part 5 Justices Act and see also S 132C), and the limitations upon removal of such matters to, or intervention by, the Supreme Court (see Divisions 1 to 3 of Part 5, of the Justices Act, and also S 146 of that Act) it is at least questionable whether Part 13A should be constructed so as to apply to summary offences, thereby permitting an additional means of review by a Court, which clearly was not intended to act as a court of criminal review for summary matters, save to a limited extent. 29 The discretion to refer a matter to the Court of Criminal Appeal, exercisable by the Minister in response to a petition made to the Governor (S 474C (1)(b) and (c)), by a Supreme Court Justice ( S 474E(1)(b), and by a prescribed person following inquiry under Division 4 (S 474H (2)), is a central element of Part 13A. The fact that the Court of Criminal Appeal has no independent jurisdiction to entertain appeals from convictions or sentences in summary matters, or to intervene in relation to such matters save upon a limited basis, might tend to suggest that the Part was intended to be confined to convictions and sentences entered upon indictment, which are amenable to appeal in that Court, and if appropriate, to an order that any such conviction or sentence be quashed or varied. Upon that basis, it might well be said that the relevant provisions "can(not) be applied" in relation to summary offences (S3 of the Crimes Act). 30 Further it is certainly well arguable that the introduction of a specific regime for the review of convictions, penalties and orders by magistrates in summary proceedings (Part 4A Justices Act) is consistent with a legislative understanding and intention that Part 13A Crimes Act does not apply to summary offences. In this regard it may be noted that S 100P of the Justices Act provides: "An application may not be made by a person under (Part 4A) if an appeal or an application for leave to appeal has been made by the person under this Act to the Supreme Court, the District Court or the Land and Environment Court". 31 It may also be noted that S 111 of the Justices Act provides: "(1) Any person who appeals under the provisions of this Division against any determination of a Justice or Justices from which he might appeal to the District Court or the Land and Environment Court shall be taken to have abandoned such last mentioned right of appeal. The reference to an appeal "under the provisions of this Division" is a reference to an appeal by way of case stated to the Supreme Court. 32 Section 111 continues: (2) Nothing herein shall in any way interfere with, curtail or limit the powers of any person to apply for an order of prohibition against the determination of any Justice or Justices." 33 Where a conviction is recorded following an appeal to, and hearing de novo in, the District Court, such Court has power, inter alia, "by its order" to "confirm … the conviction, order, sentence or adjudication appealed against" (S 125 Justices Act) Additionally, S 130 Justices Act provides: "Where any such appeal has been decided in favour of the respondent any Justice may issue his warrant of commitment as if no appeal has been brought". 34 These provisions provide some support for the proposition that, in relation to summary offences, the Legislature intended to limit the extent of potential review post conviction, and in particular to provide those aggrieved by a conviction, with a choice between an application to the Supreme Court by way of a Stated Case (S 101) or by way of statutory prohibition (S 112); or application to the District Court by way of a hearing de novo (S 122); or application for a review by a Local Court (S 100D or 100G). This would be consistent with a legislative intention that Part 13A of the Crimes Act was not to apply to convictions or sentences in respect to summary offences, whether recorded or passed in the Local Court or confirmed on appeal in the District Court. 35 Additionally, it is arguable that S 474E(1)(b) can be invoked only in relation to those cases which, from the outset, were capable of being taken to the Court of Criminal Appeal. As I have observed, no right of appeal lies under the Justices Act, to the Court of Criminal Appeal, from a summary conviction that has been entered in the Local Court, or confirmed on appeal by the District Court;nor does any such right arise under the Criminal Appeal Act 1912. Section 5 of that Act, which provides for a general right of appeal, confines such right to persons convicted "on indictment". So far as the Act permits appeal in relation to cases decided by Courts in "their summary jurisdiction", that right is confined to matters heard in the Supreme Court (S 5AA), the Land and Environment Court (S 5AB), or the Court of Coal Mines Regulation (S 5AC). Otherwise the Act extends an appeal right for summary offences only where they were dealt with as matters "related to" an indictable offence in the Supreme Court or in the District Court (S 5AD). 36 A matter of the kind the subject of the present application is not a matter that could ordinarily be dealt with by the Court of Criminal Appeal, "as an appeal", as contemplated by S 474E(1)(b). By its nature it is not justiciable in the Court of Criminal Appeal, and any appeal to that Court would have to be dismissed for want of jurisdiction. 37 On the other hand, S 3 of the Crimes Act in conjunction with the Second Schedule does make it clear that the provisions of Part 13A "So far as these provisions can be applied, shall be in force with respect to all offences … and in whatsoever Court tried". S 474L is capable of being read as empowering, and directing, the Court of Criminal Appeal to deal with a matter referred to it "in the same way" as if it were an appeal that was justiciable in that Court. In that sense it can be regarded as a source of jurisdiction, enlivened once a matter is referred under the Part. 38 Having regard to the matters outlined, it may be somewhat burdensome, if not excessive, for there to be an additional and independent right to seek review under Part 13A of the Crimes Act, in relation to summary offences. I am not , however, persuaded that the words of general ambit in S 3 and in the Second Schedule to the Crimes Act, can be lightly disregarded, or that this ground of objection to jurisdiction has been made good. APPLICATION of PART 13A to FEDERAL OFFENCES 39 There has been some precedent for the review under legislation analogous to Part 13A of the Crimes Act, of convictions returned, upon indictment, for federal offences, eg The Queen v Collie (Court of Appeal, Victoria, 18 December 1992 unreported, and Perrier v Kerr, Ryan J, Federal Court of Australia, 19 August 1997 unreported. 40 These decisions were, however, concerned with applications for referral, based upon petitions for mercy presented under S 584 of the Crimes Act (Vic) 1958, which provides: "Nothing in this Part shall effect the prerogative of mercy, but the Attorney General on the consideration of any petition for the exercise of Her Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either - (a) refer the whole case to the Full Court and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to such judges for their opinion thereon, and such judges or any three of them shall consider the point so referred and furnish the Attorney-General with their opinion thereon accordingly." 41 In Perrier v Kerr the Court was concerned with the question whether the refusal of the Minister, to refer the applicant's petition for mercy to the Victorian Court of Criminal Appeal, was reviewable under the Administrative Decisions (Judicial Review) Act 1977. Ryan J, there observed, at p 3 - 4: "It was the submission of Counsel for the applicant and not by Counsel for the respondent, that the effect of s 68(2) of the Judiciary Act is to vest in the Commonwealth Attorney-General the power referred to in s584(a) of the Crimes Act. Counsel relied upon the decision in Peel v The Queen (1971) 125 CLR 447 where a majority of the High Court, departing from the reasoning in Williams v The King (No 2) 50 CLR 551, held that s 68(2) of the Judiciary Act operated upon s 5D of the Criminal Appeal Act 1912 (NSW) so as to enable the Commonwealth Attorney-General to appeal to the Court of Criminal Appeal against a sentence imposed by the Supreme Court or a Court of Quarter Sessions. I agree with Counsel for the applicant that s 585(a) of the Crimes Act when read in conjunction with s68(2) of the Judiciary Act operates to vest the corresponding equivalent discretionary power in the Commonwealth Attorney-General. For examples of subsequent application of the reasoning ofthe majority in Peel v The Queen see Rhode v Director of Public Prosecutions (1986) 161 CLR and Lamb v Moss (1983) 49 ALR 633 at 560. 42 In Collie the applicant's petition for mercy was referred by the Attorney General (Commonwealth) to the Court of Criminal Appeal pursuant to S 584. In the judgment of that Court it was noted that: "Counsel for the Commonwealth Director of Public Prosecutions (who adopted the role of respondent upon the hearing of the referred petition) expressly conceded that this Court has jurisdiction to entertain the reference of the Commonwealth Attorney-General: Judiciary Act S 68(2)" In Saxon (Court of Criminal Appeal, New South Wales, 21 April 1998 unreported) the Commonwealth conceded that, subject to referral by the Minister, the Court of Criminal Appeal of New South Wales could entertain a matter, involving a conviction upon indictment for a federal offence, initiated under Division 2 of Part 13A, at least so far as S 474C(1)(a) and (b) were concerned. 43 By reason of the concession made in these cases, and by reason of the difference in the basis upon which the jurisdiction was sought to be enlivened, they provide only limited assistance in relation to the present case, and in particular in relation to the question whether Division 3 of Part 13A should be read down as confined to convictions arising under State law. 44 The submission in this regard was expressly confined to Division 3 of Part 13A, since the exercise of the administrative power, that is required preparatory for a reference under Division 2 of Part 13A, is vested in an individual, and not in a Court or Judicial Officer (S 474C(1)). 45 Reference was made to the decision of Barr J, in the Application of James William Shepherd (New South Wales Supreme Court, 13 September 1996 unreported). The application in that case was for an inquiry into a sentence. It failed for two reasons: first, by reason of his Honour's conclusion that, as a matter of construction, Division 3 as it was then enacted, before the 1996 amendments), was concerned only with inquiries into convictions and not into sentences; and secondly, by reason of the conclusion that the "scheme set forth in Part 13A (was) intended to enable applicants to apply only in respect of Sate convictions". 46 In dealing with this second ground, his Honour said, at pp 6-7: "S 12(1)(b) of the Interpretation Act 1987 provides that in any Act reference to a locality, jurisdiction or other matter or thing is a reference to such locality, jurisdiction or other matter or thing in and of New South Wales. The intention of s 12(1)(b) is to provide the natural limit of legislation so that it applies in its subject matter to those situations which have a nexus with New South Wales: O'Connor v Healey (1967) 69 SR (NSW) 110 per Jacobs J at 114 (where his Honour was discussing s 17, Interpretation Act, 1897, an earlier version of the rule). Pt13A lacks any specific indication of an intention to apply to a conviction for a Commonwealth offence and that in my view is sufficient to lead to the conclusion that it does not so apply: Grollo v Bates (1994) 53 FCR 218 at 242. It seems to me therefore that the word 'conviction' as used ins 474D must mean conviction for a New South Wales offence. This construction seems consistent with the scheme of Pt 13A which, like its predecessors, operates as a statutory means open to a convicted person to apply to the Crown for the exercise of the prerogative of mercy. See White v The King; Varley v Attorney General (1987) 8 NSWLR 30. It is the Governor who has power to receive reports and consider whether to pardon - see s 474H(3), (4). By s 4(1) of the Crimes Act "Governor" means, except in respect of the exercise of the pardoning power, the Governor with the advice of the Executive Council. See also Interpretation Act s 14. It does not appear why it should be any business of the Governor of New South Wales to be pardoning offences other than New South Wales offences. S 474E(4) provides that this Court might consider any written submissions made by the Crown with respect to an application. By s13(b) of the Interpretation Act this means the Crown in the right of New South Wales, not of the Commonwealth of Australia. For these reasons it seems to me that the scheme set forth in Pt 13A is intended to enable applicants to apply only in respect of State convictions." 47 The reasons so expressed were embraced by the objectors in this case. Additionally, Counsel argued that the reference to "the Minister," in S 474E(5), was to be read as a reference to the Minister administering the Act, namely the relevant State Minister - S 15(2)(a) Interpretation Act 1987 (NSW). 48 Reliance was also placed upon the fact that in the Crimes Act S 4(1), and in the Interpretation Act (NSW) (S14), the "Governor" was defined as "the Governor, with the advice of the Executive Council", which Council is itself defined by s 21 of the Interpretation Act, to mean "the Executive Council of New South Wales". 49 The question whether Part 13A of the Crimes Act (NSW) was made applicable to federal offences, by reason of s 68 Judiciary Act 1903 (Cth), was expressly not considered in Shepherd, having regard to the first basis upon which the application was found to be not justiciable. Accordingly, it does not stand as an authority in the way of the applicants. 50 Section 68 of the Judiciary Act 1903 provides (so far as relevant): (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several Courts of that State or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. 51 It was submitted by the applicants that the provisions of Part 13A of the Crimes Act concern "the hearing and determination of appeals arising out of any … conviction or out of any proceedings connected therewith" (s 68(1)(d) and hence constitute a "law of a State" as contemplated by s 68(1) of the Judiciary Act. It was further submitted that reference to the New South Wales Interpretation Act was of no assistance in determining the applicability of Part 13A to federal offenders, since the relevant legislative intent was that of the Commonwealth Parliament. The real question, so it was submitted, was whether Part 13A was one of the statutory laws of a State that was contemplated, as being taken up by s 68 of the Judiciary Act. 52 In response to the submission that found favour in Shepherd, it was argued by the applicants that it was appropriate to adapt, analogously, the relevant State law to the context of a Commonwealth offence, since to do otherwise would be to deprive s 68 of any meaning. So it was that in Peel (1971) 125 CLR 447, the reference in S 5D of the Criminal Appeal Act 1912 (NSW), to the "Attorney General," was read as embracing the Attorney General in the right of New South Wales, and also the Commonwealth Attorney General: see also Rohde v DPP (Cth) (1986) 60 ALJR 627 and Carngham (1978) 140 CLR 487. 53 In Peel Gibbs J said, at 468 to 469: "The third question is whether the right of appeal which s 68(2) confers is given to the Attorney General of the Commonwealth. As Jordan CJ pointed in R v Williams; R v Somme,, if s 68(2): '… is read as meaning that the jurisdiction is to be restricted to hearing appeals by persons designated by the State Act, it becomes nugatory, because neither persons convicted on New South Wales indictments nor the Attorney General of New South Wales could have any concern with appeals arising out of trials or convictions for offences against the laws of the Commonwealth' This provides a sound reason for concluding that in the application of s 68(2) 'the adoption of State law must proceed by analogy' (Williams v The King [No.2] (1934) 50 CLR at 561) Section 5 of Criminal Appeal Act 1912 (NSW) gives a right of appeal to a person convicted upon indictment under State law and s 68(2) in its operation on s 5 gives a right of appeal to persons convicted upon indictment under the law of the Commonwealth. Section 5D of the Criminal Appeal Act gives the Attorney General of the State a right of appeal because he is the proper officer to represent the State; s 68 (2) in its operation on s 5D gives a right of appeal to the Attorney of the Attorney General of the Commonwealth as to the proper officer to represent the Commonwealth. The functions exercised by the Attorney-General of the Commonwealth are like functions to those of the Attorney of the State and the jurisdiction exercised by the Court of Criminal Appeal in hearing and determining an appeal by the Attorney-General of the Commonwealth against a sentence imposed for an offence against Commonwealth law is a like jurisdiction to that exercised by the Court of Criminal Appeal by the Attorney-General of the State against a sentence imposed for an offence against the law of the State." 54 Peel was applied in Rohde (by Gibbs CJ, Mason and Wilson JJ at 629, and by Brennan J at 630) in holding that in the application of S 68(2) of the Judiciary Act, in relation to S 567A of the Crimes Act 1958 (Vic), the adoption of the State law proceeded by analogy. In the absence of an express power conferred on the Commonwealth Director of Public Prosecutions with respect to appeals, the appropriate analogy to the Victorian Director of Public Prosecutions was held to be the Attorney-General of the Commonwealth. The right to appeal under S 567A(1) of the Crimes Act (Vic) 1958 was accordingly invested in the holder of that office, and indirectly in the Commonwealth Director of Public Prosecutions (through S 9(7) of the Director of Public Prosecutions Act 1983 (Cth)). 55 The reasoning in these cases is, in my view, applicable to the present case and leads to the conclusion that, subject to the argument next examined, it is not correct, as a matter of statutory interpretation, to find that federal offences are excluded from Part 13A of the Crimes Act. 3. HAS DIVISION 3 OF PART 13A BEEN 'PICKED UP' BY S 68 OF THE JUDICIARY ACT 56 The purpose of S 68 is not in dispute. It was enacted pursuant to the power, conferred by S 77(iii) of the Constitution, to make laws investing any Court of a State with federal jurisdiction, with respect to any of the nine matters mentioned in SS 75 and 76, of the Constitution. These include matters arising under any law made by the Parliament S 76(ii): Murphy v The Queen (1985) 158 CLR 596, at 613, where at 617, the High Court said that S 68: "fulfils an important role in ensuring the federal criminal law is administered in each state upon the same footing as State law and avoids the establishment of two independent systems of Justice." See also R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345, and Williams v The King (No 2) (1934) 50 CLR 551 at 560. 57 It was conceded by the applicants that, in order to make good the claim to jurisdiction, it was necessary for them to show that the jurisdiction to conduct an inquiry, under Division 3 of Part 13A, falls within the expression "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith", as that expression appears in S 68(1)(d) and S 68(2) of the Judiciary Act. It was accepted that the remaining paragraphs (a) to (c)of S 68(1) were of no assistance. 58 An inquiry under this Part, or more specifically an application for an Inquiry, does not comfortably fall within the relevant expression. Such an inquiry or application would not, in normal usage of the language, involve a "hearing or determination of an appeal" arising out of any … trial or conviction, or out of any proceedings connected therewith". 59 The question which arises, however, is whether for the purposes of the present exercise, the extended definition of "appeal" contained in S3 of the Judiciary Act, makes a difference. By that Section, "appeal" is defined to include: "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge." 60 This calls for consideration of the meaning of the expression "proceeding to review or call in question …", and in particular whether in the definition Section, the Legislature had in mind an application of the kind now before the Court. The expression "proceeding" has been given a wide meaning to include for example any step in an action (Pryor v City Office Co (1883) 10 QBD 504 at 507-508 per Brett MR), or a method permitted by law for moving a Court or Judicial Officer to some authorised act (Cheney v Spooner (1929) 41 CLR 532 per Isaacs and Gavan Duffy JJ at 536-537). 61 In Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 Griffith CJ said at 494 : "The word 'proceeding' is a term of very wide appreciation. In my opinion the term 'proceeding before the Court' (as used in S 31(2) of the Commonwealth Conciliation and Arbitration Act 1904) includes every matter brought before the president in the exercise of the Judicial functions conferred upon him by the Act." 62 In Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554 Burchett J, at 565-566, interpreted the expression 'review' as involving as an integral element the power to alter the result. 63 The initial consideration of an application under S 474D by a Supreme Court Justice does not include the exercise of any such power to alter the result. Such consideration is of a preliminary kind, and is designed to sieve out those applications that should be refused and those that should be moved forward. However, upon reference to it, the Court of Criminal Appeal would have such power. Additionally, it could legitimately be said that the purpose of an application under Division 3, Part 13A is to "call in question" the relevant decision. This brings me to the constitutional question. 64 The objectors submitted that, as a matter of constitutional law, S 68 of the Judiciary Act cannot pick up Division 3, of Part 13A, because the nature of the power or function conferred by that Division is one of an administrative rather than a judicial kind. The applicant's response was that the power under S 474E involves a power "incidental to a judicial function", and hence its adoption was not beyond power. 65 It is clear that no power other than a judicial power, or a power or function incidental to it, may be lawfully conferred by the Commonwealth Parliament on State Courts: British Medical Association v The Commonwealth (1949) 79 CLR 201 at 236; Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151-152; Hilton v Wells (1985) 157 CLR 57 at 68; Murphy v The Queen (1985) 158 CLR 596 at 614; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 66, 103, 115 and 135; and Gould v Brown (1988) 72 ALJR 375. 66 The question whether or not a function is "incidental to" the exercise of the Judicial power of the Commonwealth, has been held to depend upon considerations such as whether the suggested incidental function has a "sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory": R v Kirby; ex parte Boilermakers Society of Australia (1956) 94 CLR 243 at 278; and "whether the incidental function is 'inconsistent with the co-existence of judicial power'": R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556 at 567. 67 The line is not easy to draw. In The Queen v Davison (1954) 90 CLR 353, where it was held that the making, by a Deputy Registrar in Bankruptcy, of voluntary sequestration orders was an impermissible exercise of judicial power, Dixon CJ and McTiernan J, in a joint judgment, observed (at 368-369): "The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively. In the judgment of this Court in Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144, the observation occurs: 'Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers.' It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power." 68 In the present case, it is important that S 474E(4) expressly provides that "proceedings under this Section are not judicial proceedings": see also Varley v Attorney General (NSW) 1987 8 NSWLR 30 at 49 and Rendell (1987) 32 A CrimR 243 at 244, where the administrative nature of a post conviction review was affirmed. The applicants accepted that the power arising under S 474(1)(a) is not a judicial power, or one which is incidental to such a power. Any inquiry ordered under that sub section is of an administrative nature. 69 This because the power of a "prescribed person" conducting an inquiry is one to inquire (S 474G), and to report (S 474H) into doubts concerning the convicted person's guilt: New South Wales v Canellis (1994) 181 CLR 309 at 330. The prescribed person conducting the inquiry has no power to decide or determine the application, a power that has been regarded as the hallmark of judicial power: Lockwood v The Commonwealth (1954) 90 CLR 177 at 180. 70 The determination whether to "direct that an inquiry be conducted by a prescribed person", in respect of an application brought under S 474D(1) accordingly does not involve the exercise of a power incidental to a judicial power. It follows, as was conceded by the applicants, that the Supreme Court would be precluded from directing an inquiry under S 474E(1)(a) in the present case. 71 The question which remains is whether S 474E(1)(b) may yet be validly picked up by S 68 of the Judiciary Act. It may be accepted, as I have observed earlier, that the power exercised by the Court of Criminal Appeal to deal with a case referred to it "as an appeal under the Criminal Appeal Act 1912" does involve the exercise of judicial power. Does it follow that the determination whether to refer an application, brought under S 474D to that Court (pursuant to S 474E(1)(b)) may properly be regarded as involving the exercise of a power incidental to a judicial power, and hence picked up. 72 The exercise to be undertaken by the Supreme Court, in relation to an application, made under S 474D involves three possible outcomes: (i) a direction for an inquiry by a prescribed person (S 474E (1)(a); (ii) a reference of the whole case to the Court of Criminal Appeal "to be dealt with as an appeal" (S 474E (1)(b); or (iii) a refusal to consider or to otherwise deal with the application (S 474E(3). 73 By analogy with the principles established in relation to S 79 of the Judiciary Act, it would be inappropriate to apply S 68 so as to pick up some, but not all of the otherwise applicable terms, of Division 3 of Part 13A if to do so would be to give an altered meaning to the State legislation: The Commonwealth v Mewett (1997) 71 ALJR 1102 at 1141 per Gummow and Kirby JJ; citing Maguire v Simpson (1977) 139 CLR 362 at 376. 74 It was submitted by the objectors, in this regard, that the Supreme Court either has jurisdiction or not, and that the constitutional validity of the application of Division 3 of Part 13A could not depend upon the fact that, after examining the application, the Justice considers it appropriate to refer the matter to the Court of Criminal Appeal. To find constitutional validity upon so narrow a basis, for what is in essence a preliminary consideration of an application, without authority to consider, or to exercise the remaining option was, it was argued, contrary to principle. 75 I am not persuaded that to pick up S 474(1)(b) but not S 474E(1)(a), in the present context is to give the State legislation an "altered meaning". Section 68(1) of the Judiciary Act permits the application of State laws "so far as they are applicable." Additionally, the Interpretation Act 1987 (NSW) requires that New South Wales legislation be "construed as operating to the full extent of but not so as to exceed, the legislative power of Parliament" (S31(1)). It further requires that, where a provision of an Act, or the application of any such provision, would be construed as being in excess of the legislative power of Parliament, then it is to be treated as "a valid provision to the extent to which it is not in excess of that power," and the remainder of the Act, and the application of the provision "shall not be affected," (S 31(2)). 76 I finally observe in this context, that the decisions in Kesavarajah v The Queen (1994) 181 CLR 230, Brown v R (1986) 160 CLR 171 and Cheatle v R (1993) 177 CLR 541 provide examples of the partial picking up of State laws. 77 In Kesavarajah, a question arose as to the fitness of an accused to be tried for a Commonwealth offence. The Crimes Act 1914 (Cth) contains provisions concerning the disposition of an accused who had been found unfit to be tried, but no provision as to the procedure by which the issue of fitness was to be tried. It was held that the State law regulating the method of determining that issue was picked up by S 68, but the consequences remained to be determined by Commonwealth law. There was an inconsistency between the State and Commonwealth laws concerning that aspect, so that the latter prevailed. Otherwise the procedural provisions that were lacking under Commonwealth law were made applicable through Sections 68 and 79 of the Judiciary Act. 78 In Brown the Court was concerned with the election that an accused had under State law (S7 of the Juries Act 1927 (SA)) to trial by Judge alone. By reason of S 80 of the Constitution it was held by a majority (Brennan, Deane and Dawson JJ; Gibbs CJ and Wilson J dissenting) that the State Supreme Court must sit with a jury when it exercised federal jurisdiction. To that extent, only part of the State legislation was lifted by an application of S 68 of the Judiciary Act, and there was a difference in the mode of trial potentially available for State and federal offenders respectively. 79 Cheatle is to like effect so far as it was held by the High Court that the provisions of a State Act could not, consistently with S 80 of the Constitution, operate to authorise the conviction of the appellants by majority jury verdict, in a trial on indictment for an offence against a Commonwealth law. The effect of the decision was that the relevant State law (S 57(1) Juries act 1927 (SA) did not apply in relation to the trial of Commonwealth offences. The Court expressed its conclusion in the following terms: "… history, principle and authority combine to compel the conclusion that s 80's guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth otherwise than by the agreement or consensus of all the jurors. That being so, S 57 of the Juries Act 1927 (SA) cannot, consistently with s 80, operate to authorise the conviction of either of the appellants by a majority verdict. Their convictions were unconstitutional and must be set aside. The conclusion that s 57 cannot validly apply to authorise the return of a majority verdict of guilty in the trial on indictment of an offence against a law of the Commonwealth does not mean that the South Australian Courts lack jurisdiction to entertain such trials. Section 22a(1) of the Acts Interpretation Act 1915 (SA) requires that every provision of every Act of the Parliament of South Australia "be construed so as not to exceed the legislative power of the State". In compliance with that directive, the provisions of s 57 must be read down so as not to purport to apply, of their own force, to the trial on indictment of an offence against a law of the Commonwealth. The guarantee of trial by jury contained in s 80 of the Constitution does not preclude the relevant provisions of the Judiciary Act 1903 (Cth) from otherwise operating to vest jurisdiction in respect of trials on indictment of offences against laws of the Commonwealth and the South Australian Supreme and District Criminal Courts constituted by a judge and jury. 80 This decision provides a further example of portion only of a power or procedure of a State Supreme Court being picked up when dealing with a federal offence, compared with its power when dealing with a State offence. 81 In my view, similar considerations apply in the present case, and that picking up S 474(1)(b), without S 474(1)(a) does not give any altered meaning or application to the State legislation. The only difference lies in the fact that, if the Court determines that an application is suitable for an inquiry, then, in the case of a conviction or sentence arising under federal law, the way in which it is to be determined is limited to that provided in S 474E(1)(b). Parliament may be taken to have adopted, in this regard, one of the modes for determination of the remedy or procedure, which State law provides, for its analogous jurisdiction concerning convictions under State law. To that extent the difference is procedural, and not unlike that seen in Brown and Cheatle, where the State legislation was taken up, but with restrictions as to the mode of trial, precluding majority verdicts and trial by judge alone. In the present case, if the Court considers that an application merits review, then one of the two ways prescribed for its determination is taken up. 82 A further question that arises is whether S 68(2) Judiciary Act should be read down in this case, so as to avoid a construction that would empower the Commonwealth to impose upon a State Supreme Court an obligation to conduct a function, on its behalf, without the legislative consent of the State in accordance with the principles discussed in R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 239 per McTiernan J, and at 240 per Gibbs J, and at 245-246 per Stephen J. 83 It may be recognised that a function or power to consider and conduct a post conviction inquiry, other than by way of appeal, does constitute an additional burden for a State Court. Such a function or power has no equivalent in the Common Law of pardon (Varley at 414); it does not fall within any inherent jurisdiction; and it depends upon a statutory grant of power. Although this point was not fully argued, I am not persuaded that, in accepting federal jurisdiction in relation to criminal prosecutions, and appeals generally, Legislative consent has not also been extended to review of the kind here under consideration. 84 In this regard, I observe that some precedent already exists which assumes the acceptance by State Supreme Courts of jurisdiction in respect of matters referred by the Minister under Division 2 of Part 13A, (R v Lloyd Saxon, Court of Criminal Appeal, New South Wales, 1 April 1998 unreported) or under analogous provisions in other States. (see paras 41 and 42 above). The concession made in Saxon also accepted the partial picking up of S 474C of the Crimes Act (S 474C(1)(a) and (b) but not (c)). 85 For these reasons, I am not persuaded that the Court lacks jurisdiction to entertain the application made by the applicants under S 474D (1) of the Crimes Act 1900. I shall hear the parties in relation to any order that may be sought for costs, or for any deferral of further consideration by me of the question whether the matter should be referred to the Court of Criminal Appeal, pending appeal from this judgment.

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