Supreme Court of Tasmania|1999-11-10|Before: Cox CJ, Wright J, Evans J

Australian Securities and Investment Commission v Hosken, Robert William [1999] TASSC 120 (10 November 1999)

CITATION: Australian Securities and Investment Commission v Hosken

PARTIES: AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Corporations - Supervision, regulation and correction - Regulatory bodies - Australian Securities Commission or its predecessors - Powers of - To appeal a decision on an appeal from a conviction.

Australian Securities and Investment Commission Act 1989 (Cth), ss11(4) and 49(2).

Companies and Securities (Interpretation and Miscellaneous Provisions ) (Tasmania) Code, s35.

Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, followed.

Byrnes v R; Hopwood v R [1999] HCA 38; (1999) 164 ALR 520, distinguished.

Appellant: Commonwealth Director of Public Prosecutions

Judgment Number: [1999] TASSC 120

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION v

1 The appellant Commission, in exercise of its uncontested power to do so (Australian Securities Commission Act 1989 (Cth), s49, hereinafter referred to as "the ASIC Act", applied to Tasmania and called ASC Law of Tasmania by Corporations (Tasmania) Act 1990, s58 but subsequently renamed), through its delegate (ibid, s102), launched a successful prosecution against the respondent in the Court of Petty Sessions in respect of several breaches of the Companies (Tasmania) Code, s229(4). The complaint was heard summarily pursuant to the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code, s35. That section, by subs(6), provides:

"Where under this section it is provided that an offence against a relevant Code is punishable summarily, proceedings for that offence shall be heard and determined in accordance with the Justices Act 1959, and any penalty imposed in respect of that offence may be enforced and recovered as provided by that Act."

2 The respondent, being aggrieved at his conviction and the penalties imposed, exercised his right under the Justices Act 1959, s107 to appeal to the Supreme Court. His appeal, in which the present appellant was respondent, was successful and the convictions and penalties entered in the Court of Petty Sessions were set aside. That Act, s123 provides that:

"123 - (1) If a party to a motion to review, an appeal, or a case stated is dissatisfied with a rule or order of the Supreme Court in point of law or upon the admission or rejection of evidence he may, subject to this section, appeal from that rule or order to the Full Court."

"116 - In this Part, unless the contrary intention appears, 'order' includes conviction, dismissal of a complaint, determination, and adjudication."

Prima facie the appellant has a clear right to appeal the order of the learned primary judge whereby he set aside the magistrate's orders in respect of conviction and sentence.

3 It is submitted by the respondent that the appellant has no power to institute this appeal and that under the ASIC Act, s49, its only power, where it appears that a person may have committed a relevant offence, is to "cause a prosecution of the person for the offence to be begun and carried out". No specific power is given by that Act to institute or take part in any appeal in respect of such a prosecution; but by the ASIC Act, s11(4), it is provided that "the Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions." But for the one authority relied on by the appellant (Byrnes v R; Hopwood v R [1999] HCA 38; (1999) 164 ALR 520) ("Byrnes' case"), I would have thought it unarguable that the appellant Commission had power to at least resist any appeal against the conviction it had secured in Petty Sessions and, should such appeal succeed, to challenge it in accordance with the Justices Act 1959, s123, so as to ensure that if error were shown to have been made by the intermediate Appeal Court, the initial conviction would be restored.

4 In Byrnes' case, the High Court unanimously agreed that the Commonwealth Director of Public Prosecutions did not have power to institute an appeal against the alleged inadequacy of the sentence imposed on the respondent in the court of trial. The reasoning process, which is analysed by Wright J and Evans J in judgments I have read and with which I agree, would equally have compelled the conclusion that the Director of Public Prosecutions had no power to institute an appeal against the respondent's acquittal on a trial in the District Court of South Australia. Their Honours concluded that the power to appeal the inadequacy of a sentence could not be implied from the relevant legislation because of the rule of construction "that a conferral on prosecuting authorities of statutory powers to appeal against a criminal conviction or sentence must be clearly expressed", per Kirby J at 545 [90]. The circumstances of the present appeal are quite different from those in Byrnes' case and are more akin to those in Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 where Gibbs CJ said, at 33:

"We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning."

5 In my opinion, Byrnes' case does not govern the present situation and the preliminary challenge to the competency of the Commission to bring the appeal should be overruled.

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION v

6 By this appeal, the appellant Commission is seeking to reinstate the decision of a magistrate who convicted and penalised the respondent in respect of six counts of improper use of his position as a director of AH (No 2) Pty Ltd to gain an advantage for himself or, alternatively, to cause detriment to the company in breach of the Companies (Tasmania) Code, s229(4).

7 A preliminary issue has been raised by counsel for the respondent who submits that the present appeal is incompetent. There is no suggestion that the Commission lacked power to institute and pursue the initial prosecution of the respondent, indeed, this power was expressly conceded. The only issue for the Court's present determination is whether or not the Commission has power to maintain the present appeal to this Court.

8 The argument advanced by the respondent was founded upon a recent decision of the High Court (Byrnes v R and Hopwood v R [1999] HCA 38; (1999) 164 ALR 520). The respondent argues that there were two principal issues in Byrnes' case. First, whether or not the appellate court had jurisdiction to entertain the appeal and, second, whether or not the appellant had power to institute and prosecute that appeal. It was conceded, properly, in my opinion, that this Court plainly has jurisdiction to entertain a properly instituted appeal. It was submitted, however, that the Australian Securities and Investment Commission has no power to institute or prosecute the present appeal. It must be emphasised that unlike the situation in Byrnes' case, the present appellant is seeking no more than a restoration of the original decision of the magistrate, claiming that there was manifest error by Slicer J when that decision was varied and the penalties diminished when brought before him on a motion to review instituted by the respondent. By contrast, in Byrnes' case, the prosecuting authority, the Director of Public Prosecutions, sought to initiate the appellate process and challenge a magistrate's allegedly inadequate sentence following conviction. This distinction between Byrnes' case and the present appeal is a factor of pivotal importance, in my opinion.

9 In Byrnes, the High Court emphasised the conceptual difference between the issues of jurisdiction on the one hand, and power on the other, in its analysis of the issues before it, but its actual determination of both these issues depended largely, though perhaps not exclusively, upon the premise that the right of a prosecutor to appeal against an adverse determination such as an acquittal or an unduly lenient sentence, must always be considered and determined against the common law background principle which denies the existence of any such right in the absence of clear statutory authorisation. There has been a consistent requirement, emphasised by courts of high authority, that for such a right to be conferred upon a prosecutor, plain and unequivocal legislative provision will be required (see Deane J in Rohde v DPP [1986] HCA 50; (1986) 161 CLR 119 at 128 - 129 and Barwick CJ in Peel v R [1971] HCA 59; (1971) 125 CLR 447 at 454 - both of which were referred to with approval in _Byrne_s' case). The principle was stated thus in _Byrne_s' case by Kirby J at 543 - 544:

"Appeal is not a creature of the common law. It is invariably the creation of statute. To assess, where challenged, the purported exercise by a party of a right to appeal (and the purported assertion by a court of jurisdiction to hear and determine the appeal so initiated), it is essential to scrutinise the suggested legislative foundation for such right and jurisdiction. If it cannot be demonstrated in the language, or in the implications to be derived from the language, of the relevant statute, the right and jurisdiction asserted do not exist. The common law cannot be invoked to fill total silences in the legislation.

In the specific matter of appeals against a criminal sentence, it is well established that clear language is necessary to afford to a prosecutor a right of appeal (and thus to a court the jurisdiction to hear such an appeal) . In part, this principle derives from the general statutory character of appeals. But mostly it can be traced to the bias of our law in favour of the liberty of the individual and against exposure of the individual to repeated jeopardy in criminal proceedings. In part, it is a reflection of history and of the practice of the Crown and its emanations in the matter of criminal prosecutions. Therefore, to sustain his now challenged assertion of a right to appeal against the sentences imposed on the appellants, the Commonwealth DPP must be able to point to a clear statutory authority affording him that right."

10 Mr Blow QC, counsel for the appellant, argued that this general principle was inapplicable in respect of appeals of the current kind as a result of the High Court decision in Davern v Messel [1984] HCA 34; (1984) 155 CLR 21. Gibbs CJ (with whom Wilson and Dawson JJ concurred) confirmed the general rule of construction just referred to and referred to the earlier dicta of Deane J in Thompson v Mastertouch TV Service Pty Ltd [No 3] [1978] FCA 24; (1978) 38 FLR 397, before continuing at 33 in the following terms:

"To approve of the decision in Thompson v Mastertouch TV Service Pty Ltd is not, however, to resolve the present question, since, as I have said, that decision dealt with the case of an appeal brought directly from an acquittal. We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning.

As I have shown, the House of Lords in Benson v Northern Ireland Road Transport Board applied the well known principle that a statutory provision will not be construed as overthrowing a fundamental rule of the common law unless it expresses a clear intention to do so. The question then is whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and prevent oppression. It seems to me neither unfair nor oppressive to restore a conviction that was set aside on erroneous legal grounds."

"It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices. What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction."

"The authorities favour the view which in my opinion accords with commonsense and the interests of justice, that if a convicted person secures the quashing of a conviction on an erroneous legal ground, a further appellate court has the power to correct the error of law and to restore the conviction which should never have been disturbed."

11 Mr Bongiorno QC, counsel for the respondent, argued that Davern v Messel has no bearing upon the question now before the Court, as it dealt with jurisdiction only and not the power of a prosecuting authority to maintain an appeal. However, I cannot agree. Davern v Messel establishes an exception to the general rule of construction which I have adverted to. Davern v Messel establishes that in the case of a convicted person who secures the quashing of his conviction upon erroneous legal grounds by an intermediate appellate court, a further appellate court has power to correct the error of law and restore the conviction which should never have been disturbed. The general rule of construction which is founded squarely upon the double jeopardy principle adverted to by Gibbs CJ, has no application in a case such as the present. It seems to me that to acknowledge the difference correctly pointed out by Mr Bongiorno between a question of jurisdiction and a question of power, in no way diminishes the validity of the observation which I would make that the power question, although jurisprudentially a question of construction, is inextricably bound up with the nature of the appeal which the prosecutor wishes to pursue.

12 In my opinion, the present case is comparable to Davern v Messel. The respondent instituted the appellate process and sought to set aside his convictions and penalties. The double jeopardy principle cannot apply in his favour and consequently, the rule of construction which presumes that a prosecutor cannot appeal unless expressly authorised by statute, and which applies with the strict consequences seen in Byrnes, appears to me to be inapplicable. Without the presumptions inherent in this rule of construction, constituting as they do a heavy shackle upon the Court's interpretative capacity, I find little or no justification for restricting the Commission's capacity to appeal in the circumstances which exist in the present case. My conclusion in this respect is fortified by reference to the Australian Securities and Investment Commission Act ("ASIC Act"), s11(4) which provides:

"The Commission has power to do whatever is necessary for or in connection with or reasonably incidental to the performance of its functions."

13 The Commission has express statutory power to investigate and prosecute relevant contraventions of the law (see ASIC Act, s49(2)). Surely it must be "incidental" to such powers to take reasonable steps to sustain the outcome of a successful prosecution? The High Court in _Byrne_s' case considered the provisions of the Director of Public Prosecutions Act 1991 (SA), s7, which contained a not-dissimilar phrase. The High Court's consideration of the section, however, was from the standpoint of the power conferred by s7(g) which provided the Director of Public Prosecutions with power "to exercise appellate rights arising from proceedings of the kind referred to above", rather than giving a restrictive interpretation to s7(i) which gave the Director of Public Prosecutions power "to do anything incidental to the foregoing". It therefore seems to me that the respondent's argument can derive no support from anything said by the High Court in respect of the scope of the "incidental" power in Byrnes.

14 Reliance may also be placed upon the provisions of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code, s35(6) which require that proceedings for a relevant offence "shall be heard and determined" in accordance with the Justices Act 1959. The Justices Act, ss116 and 123 are of relevance to a consideration of this matter. Section 123(1) provides as follows:

Section 116 provides that "order" includes "conviction, dismissal of a complaint, determination, and adjudication" and thus clearly envisages that prosecutors may appeal.

15 Mr Bongiorno argues that s123 only goes to the question of jurisdiction, but I do not accept that. In my opinion, it also goes directly to the power of a party to appeal. The Commission was a party to the motion to review before Slicer J. There is no inconsistency with or infringement of the rule generalia specialibus non derogant in holding that the Commission is invested with appellate power by this provision, even though the ASIC legislation does not specifically confer such a power upon the Commission.

16 Whilst the majority of the High Court in Byrnes' case took the view that Dixon J's words in Ex Parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 165, did not assist the Director of Public Prosecutions' argument (see Byrnes at 537 - 538), they did so on the basis of the rule of strict construction regarding Crown appeals against acquittal or sentence already referred to. It is worthwhile recalling what Dixon J actually said:

"Section 58E enables a member to 'complain', and so to originate a proceeding that may result in directions for the performance of the rules even (i) although he has no proprietary interest at stake, (ii) although the particular rule or rules he invokes confer no benefit or advantage upon him; and, indeed, notwithstanding that he may share the obligations under the rules of the person complained against, (iii) although his complaint affects matters of internal management under the control of the majority, or capable of being dealt with under the rules: Cf Taylor v Smith (1922) 23 SR (NSW) 174; 39 WN 270; Bowen v Hinchcliffe (1924) 24 SR (NSW) 262; 41 WN 32; Atkinson v Lamont (1938) QSR 33.

It appears to me, that, on the footing that s 58E includes judicial power, it must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority, whether of a judicial or administrative nature. Indeed, in his Legislative Methods and Forms (p 249), Sir Courtenay Ilbert appears expressly to advert to this trick of drafting, for the purpose of condemning it, when he says: 'The enactment should be so expressed as to give the right, not the remedy, to say that a person may do a particular thing, not that he may bring a particular action or obtain from the court a particular order.'

The form of legislation which is expressed to hinge upon the act of a court or other authority is less scientific than realistic and is perhaps now outmoded. But it was once common. To take an example from a very different legal field, 9 Geo I, c 19, enacted that if any person by colour of any authority of any foreign Government sold a ticket in any foreign lottery and should be convicted by two or more justices he should forfeit, and so on: See Attorney-General of Victoria v Moses [1907] VicLawRp 27; (1907) VLR 130, at 139, 140, where successive enactment's in pari materia but in different forms are set out. Nowadays, the same legislative sentiment is clothed differently and raises different, if more serious, questions: Compare the legislation dealt with in R v Martin; Ex parte Wawn [1939] HCA 39; (1939) 62 CLR 457, where the liability of the offender is imposed quite independently of the jurisdiction wherein, or the procedure whereby, it is to be enforced. But, under either form of legislation, it is quite clear that a liability is imposed and that the liability accordingly supplies an appropriate subject or 'matter' upon which 'judicial power' or 'jurisdiction' may operate, whether the jurisdiction is given in the same breath or quite independently."

17 Unfettered by the strict rule of construction mentioned previously, I can see no reason for declining to interpret the Justices Act, s123 as performing a "double function", at least insofar as appeals of the present kind are concerned. It may well be that if the Commission sought to rely on those provisions to mount an appeal against an acquittal or a manifestly inadequate sentence, it would be defeated by the double jeopardy rule of construction underpinning the High Court's decision on the power question in Byrnes' case, but this is an issue which does not have to be determined in the present case. In my opinion, the present appeal is competent. To reach this conclusion, I have no need to rely upon Mr Blow's further arguments, based upon the claimed "purposive" intent of the ASIC legislation, or the distinction drawn in Davern v Messel between jury verdicts on indictment and magistrates' decisions in courts of summary jurisdiction, although those arguments could well lead to the same conclusion.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

18 In these reasons, a reference to the Commission is a reference to the Australian Securities and Investment Commission or its predecessor, the Australian Securities Commission, dependent upon the name of the entity in existence at the relevant time.

19 By a complaint made on behalf of the Commission dated 11 November 1992, the respondent was charged with seven charges of using his position as a director of a company in breach of the Companies (Tasmania) Code, s229(4). The complaint was heard in a court of summary jurisdiction pursuant to the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code, s35. The respondent was convicted on six charges and sentenced to nine months' imprisonment, eight months of which sentence was suspended. The respondent appealed. His appeal was heard by Slicer J, who upheld the appeal in relation to five of the six charges. He quashed the respondent's conviction on those charges and dismissed them. The Commission has appealed to this Court against Slicer J's decision.

20 The respondent has taken the preliminary point that the Commission does not have power to appeal against the decision of Slicer J and in consequence the appeal is a nullity.

21 The respondent accepts that the Commission had the power to prosecute him. The respondent contends that for relevant purposes, the Commission's power is confined to the prosecution of charges and it has no power to invoke an appeal provision referable to the outcome of a prosecution.

22 The Commission is a statutory body. The soundness of the respondent's submission requires an examination of the statutory provisions which are the source of and circumscribe the Commission's powers. The relevant provisions are contained in the Australian Securities and Investments Commission Act 1989 which at the time the prosecution was commenced was named the Australian Securities Commission Act 1989. Hereafter this legislation is referred to as "the ASIC Act". As to offences such as those for which the respondent has been prosecuted, the ASIC Act, s49(2) provides:

"(2) The Commission may cause a prosecution of the person for the offence to be begun and carried on."

23 Whilst it is manifest that s49(2) makes no reference to appeals arising from prosecutions, in the ordinary course, I would have no hesitation in construing a power to prosecute as encompassing and including a power to sustain the successful outcome of a prosecution through the appeals process. This construction is bolstered by the ASIC Act, s11(4), which provides:

"(4) The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions."

24 The respondent submits that these provisions should not be construed as authorising the Commission to initiate an appeal as a power to appeal should not be found to exist in the absence of an express grant of that power. In support of this submission, the respondent relies on the decision of the High Court in Byrnes v R [1999] HCA 38; (1999) 164 ALR 520. That decision involves the power of the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") to appeal against a sentence imposed on an accused who had been prosecuted for offences against the Companies (South Australia) Code. The source of the power of the Commonwealth DPP to prosecute the accused was the Companies (South Australia) Code, s91, which so far as is material, provided:

"(1) The Commonwealth Director of Public Prosecutions--

'(a)' has the same enforcement powers in relation to the co-operative scheme laws as has the Crown in right of South Australia acting by the Attorney-General or the Director of Public Prosecutions of South Australia; and

'enforcement power' means a function or power relating to--

'(b)' the arrest and custody of persons charged with an offence; or

'(c)' the institution and carrying on of a prosecution of an offence; or

'(d)' matters relating to such an investigation, arrest, custody or prosecution."

25 In Byrnes v R the members of the High Court unanimously held that the power given to the Commonwealth DPP by s91(5) to institute and carry on a prosecution of an offence did not extend to appealing against a sentence which had been imposed on an accused convicted of an offence which the Commonwealth DPP had prosecuted. In their joint judgment, Gaudron, McHugh, Gummow and Callinan JJ, at 535 - 536, said:

"It is convenient first to address the conferral of 'enforcement power' on the Commonwealth DPP. The definition of 'enforcement power' in s 91(5) of the State Corporations Act does not expressly refer to a function or power relating to 'appeals'. It remains a question of statutory construction whether any of the matters enumerated in s 91(5) include a power to institute and conduct an appeal against sentence. Neither para (a) nor para (b) has any bearing on this question. Both paragraphs deal with matters anterior to the prosecution of the accused. Equally, para (c), which concerns a function or power relating to 'the institution and carrying on of a prosecution of an offence', is insufficient. This is because the 'carrying on of a prosecution' concerns the conduct of the prosecution at trial. The remaining paragraph specifies a function or power 'relating to: ... (d) matters relating to such ... [a] prosecution'. The duplication of the phrase 'relating to' imports a wide penumbra of matters connected to a prosecution. It is through the application of the rules of statutory construction that the scope of this penumbra is delineated.

In our opinion, upon the proper construction of this law, an appeal against sentence does not relate to 'matters relating to such ... [a] prosecution', as provided for in s 91(5) of the State Corporations Act. It is here that the thread taken up at the beginning of these reasons breaks. In Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119 at 128-9; [1986] HCA 50; 66 ALR 593 at 598), Deane J said:

'As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language: cf Thompson v Mastertouch TV Service Pty Ltd [No 3] [1978] FCA 24; (1978) 19 ALR 547; 38 FLR 397; Davern v Messel [1984] HCA 34; (1984) 155 CLR 21; 53 ALR 1.'

The terms of s 91(5) of the State Corporations Act do not refer to 'appeals'. They stand in contrast to s 68(2) of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), the construction of which was considered by this Court in Peel v R [1971] HCA 59; (1971) 125 CLR 447. Although in the minority in that case, Barwick CJ made the following remarks concerning the meaning of the phrase 'appeals arising out of any such trial or conviction' contained in s 68(2) which have force in the context of the construction of s 91(5) of the State Corporations Act 1976 [1971] HCA 59; (1971) 125 CLR 447 at 454:

'[N]either an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial: nor is an appeal against sentence an appeal arising out of any proceedings connected with the conviction.'

In the absence of the manifestation of a specific intention, no power or function in relation to appeals against sentence is to be found in the terms of s 91(5).

This construction of s91(5) of the State Corporations Act finds its force in the underlying principle that a convicted person should not be deprived of the liberty left after sentencing at first instance except by procedures which have been expressly authorised (Malvaso v R (1989) CLR 227 at 233; [1989] HCA 58; 89 ALR 34) and strictly complied with in a court of proper jurisdiction. This notion of jeopardy to the accused's liberty and its relationship with the administration of criminal justice was considered in Everett v R [1994] HCA 49; (1994) 181 CLR 295; 124 ALR 529. Brennan, Deane, Dawson and Gaudron JJ considered the jurisdiction of the Tasmanian Court of Criminal Appeal to grant leave to the Attorney-General of that State to appeal against sentence and said :

'An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed .''

[Par 85] "In the specific matter of appeals against a criminal sentence, it is well established that clear language is necessary to afford to a prosecutor a right of appeal (and thus to a court the jurisdiction to hear such an appeal) (Rohde v Director of Public Prosecutions (supra)). In part, this principle derives from the general statutory character of appeals. But mostly it can be traced to the bias of our law in favour of the liberty of the individual and against exposure of the individual to repeated jeopardy in criminal proceedings (Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299; [1994] HCA 49; 124 ALR 529). In part, it is a reflection of history and of the practice of the Crown and its emanations in the matter of criminal prosecutions. Therefore, to sustain his now challenged assertion of a right to appeal against the sentences imposed on the appellants, the Commonwealth DPP must be able to point to a clear statutory authority affording him that right.

[Par 90] The closest that the Commonwealth DPP comes to establishing jurisdiction within the defined 'enforcement powers' conferred upon him by s 91(1)(a) of the State Act is the potentially large ambit of the matters included within the definition of 'enforcement powers' in s 91(5)(d) of the State Act. By a double combination of the words 'relating to', both in the opening words of the sub-section and in par(d), a flimsy argument may be advanced that the bringing of an appeal is a power relating to matters relating to a prosecution. However, this argument founders on the previously stated rule of construction that a conferral on prosecuting authorities of statutory powers to appeal against a criminal conviction or sentence must be clearly expressed. To say the least, this did not occur in the inter-meshing Federal and State legislation in question here."

26 Central to the reasoning of the members of the High Court in Byrnes v R is the rule of construction that the conferral on a prosecutor of a statutory power to appeal against an acquittal or a sentence must be clearly expressed. As to the application of this rule, it must be borne in mind that the appeal under consideration is not an appeal against a verdict acquitting the respondent or an appeal against his sentence. This Court is dealing with an appeal from a decision given on an appeal from a conviction of the respondent by a court of summary jurisdiction. The distinction is important. In Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, the High Court considered the jurisdiction conferred on the Federal Court to hear and determine appeals by the Federal Court of Australia Act 1976, s24(1), which is as follows:

"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."

27 Gibbs CJ, whose decision was agreed with by Wilson and Dawson JJ, said at 33, 37 and 38:

[At 33] "I accordingly respectfully agree with the conclusion of Deane J. in Thompson v Mastertouch TV Service Pty Ltd [No 3] that the general words of s 24 do not affect the right of the subject 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 ((1978) 38 FLR, at pp 401, 403-404, 412-413; 19 ALR at pp 550, 552, 560). Room may remain for argument on the question when a hearing is not one on the merits, but that question raises no difficulty in the present case.

To approve of the decision in Thompson v Mastertouch TV Service Pty Ltd is not, however, to resolve the present question, since, as I have said, that decision dealt with the case of an appeal brought directly from an acquittal. We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning."

[At 37] "A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted. ... [At 38] It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices. What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction."

"The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate: R v Weaver [1931] HCA 23; (1931) 45 CLR 321, at p 356, per Evatt J."

29 It is apparent from the above that the rule of construction that a power to appeal should be expressed in clear language has little force when considering a power to appeal against a summary decision or a power to appeal a decision on an appeal from a conviction. The rule applied with full force in the circumstances dealt with in Byrnes v R. That being so, in my respectful view, the conclusions reached by the members of the High Court in that case provide no real assistance in the different circumstances being considered by this Court. The power of appeal under challenge before this Court is a power to appeal from a decision reached on an appeal against a conviction in a court of summary jurisdiction. The rule of construction has minimal, if any, relevance to a determination of whether such a power of appeal exists. The rule does not apply so as to deny the words used in the ASIC Act ss49(2) and 11(4) their full scope and meaning. Those provisions empower the Commission to institute and carry on a prosecution and do whatever is necessary for or in connection with, or reasonably incidental to, the prosecution. In my opinion that power includes power to appeal in the circumstances before this Court. I would reject the respondent's submission that the appeal is incompetent.

Securities and Investment Commission Act 1989

State Corporations Act 1976

Australian Securities and Investment Commission v Hosken, Robert William [1999] TASSC 120

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Judgment (88 paragraphs)

Australian Securities and Investment Commission v Hosken, Robert William [1999] TASSC 120 (10 November 1999)

Parties

Legislation Cited (2)

Cases Cited (10)