Attorney-General (Cth) v Finch

1984, Feb. 9 Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

This action in the original jurisdiction of the Court has been referred by Mason J. to the Full Court. It is an action in which the Attorney-General for the Commonwealth seeks relief by way of declaration and an injunction restraining the defendant from proceeding further with a petition for special leave to appeal to the Judicial Committee of the Privy Council on the ground that the presentation and prosecution of the petition is barred by s. 3(1) of the Privy Council (Limitation of Appeals) Act 1968 Cth or by s. 3 of the Privy Council (Appeals from the High Court) Act 1975 Cth.

The relevant circumstances in which the defendant seeks leave to appeal to the Privy Council may be shortly stated. The defendant was convicted of murder in the Supreme Court of Queensland on 22 October 1973. He had been arraigned on 10 September 1973. His appeal to the Court of Criminal Appeal of Queensland was dismissed on 9 August 1974 and special leave to appeal to this Court from that decision was refused on 29 November 1974.

In 1977 one of the principal prosecution witnesses at the trial made affidavits retracting evidence he had given. On the basis of these affidavits, the defendant, on 11 September 1978, filed with the Court of Criminal Appeal a notice of application for further leave to appeal and for an extension of time for giving notice of application for leave to appeal against his conviction. The Court of Criminal Appeal refused both applications on 20 October 1978. By a notice of motion dated 18 May 1981, filed in this Court, the defendant sought an extension of time for applying for special leave to appeal and special leave to appeal from the judgment of the Court of Criminal Appeal. The grounds of the application for special leave to appeal were the same as those in the application for leave to appeal to the Court of Criminal Appeal. On 26 June 1981 this Court refused special leave to appeal.

On 23 June 1983 a petition for special leave to appeal as a poor person from the decision of this Court on 26 June 1981 was filed on behalf of the defendant in the office of the Registrar of the Judicial Committee of the Privy Council. By the petition the defendant seeks special leave to appeal from the refusal by this Court, on 26 June 1981, to grant special leave to appeal.

Section 3 of the Privy Council (Limitation of Appeals) Act provides:

(1.) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and

(b) did not involve the application or interpretation of -

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2.) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act.

The form and effect of sub-s. (1) of s. 3 is that special leave to appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision was "given on appeal" from the Supreme Court of a State otherwise than in the exercise of federal jurisdiction and did not involve the application or interpretation of the Constitution or a question of federal law. There is a clear distinction between an appeal and an application for special leave to appeal. Where a right of appeal is conditional on the grant of special leave to appeal, there can be no appeal until special leave is granted. The grant is an essential preliminary condition to the existence of the appeal. Refusal on the other hand denies the existence of an appeal.

The reference to a decision "given on appeal" should be read in its ordinary sense, i.e., to a decision given on an actual appeal as distinct from a decision given on an application for leave to bring an appeal. This reading of the sub-section is in conformity with the purpose of the statute, namely, to strengthen the position of this Court under the Constitution as a final court of appeal for Australia by limiting the matters in which an application may be made for an exercise of the prerogative to admit an appeal to the Privy Council. It is not to be supposed that Parliament intended, in that context, to allow appeals to be taken from decisions on special leave applications. Moreover, the description in sub-s. (1)(b) of the matters in which special leave may be sought from the Privy Council contemplates a decision based on reasons for judgment of the kind delivered when the Court disposes of an appeal in the sense already described. The description is inappropriate to a decision given on a special leave application which is largely discretionary and is not ordinarily accompanied by the publication of reasons.

In the light of this understanding of the relevant provisions of the 1968 Act, it is unnecessary to consider the alternative submission advanced by the Attorney-General based on the 1975 Act.

We would therefore: (1) Declare that by virtue of the Privy Council (Limitation of Appeals) Act 1968, the defendant is precluded from seeking special leave to appeal to Her Majesty in Council in accordance with a petition filed on behalf of the defendant in the office of the Registrar of the Judicial Committee of the Privy Council on 23 June 1983; (2) Order that the defendant be restrained from proceeding further with that petition; and (3) Order that there be no order as to costs.