Davern v Messel

[1984] HCA 34

High Court of Australia|1979-08-24|Before: Dawson JJ, Gallop J

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Source facts

Court

High Court of Australia

Decision date

1979-08-24

Before

Dawson JJ, Gallop J

Source

Original judgment source is linked above.

Judgment (197 paragraphs)

[1]

The applicant, Mr. Davern ("the complainant"), laid four complaints under the Justices Act N.T. against the respondent, Professor Messel, charging him with four offences against the law of the Northern Territory. The respondent was charged with - (1) taking, in waters declared to be closed against the taking of barramundi by the Administrator in Council acting pursuant to s. 13(1) of the Fisheries Act N.T. and published in the Northern Territory Government Gazette G34 dated 24 August 1979, barramundi from those waters contrary to s. 13(2) of the Fisheries Act; (2) using in a protected area, namely Melville Island, a weapon that discharges a projectile, namely a shotgun, contrary to s. 24(2) of the Territory Parks and Wildlife Conservation Act N.T.; (3) killing a protected animal, namely magpie geese (anseranas semipalmata), contrary to s. 29(1) of the Territory Parks and Wildlife Conservation Act; and (4) having under his control the flesh of a protected animal, namely breasts of magpie geese (anseranas semipalmata) contrary to s. 31(1) of the Territory Parks and Wildlife Conservation Act.

[2]

The complaints came before the Chief Stipendiary Magistrate of the Northern Territory who after a hearing convicted the respondent on each complaint and in respect of each charge ordered him to pay a fine and in default to be imprisoned. On the charge under s. 13(1) of the Fisheries Act an order for the forfeiture of property was also made. On 11 August 1980 the respondent appealed from these convictions and orders to the Supreme Court of the Northern Territory. The appeal was brought under s. 163 of the Justices Act N.T.. The appeals came before Gallop J. who referred to the Full Court of the Supreme Court an application made to him for directions as to the conduct of the appeal. The Full Court, after hearing argument, gave directions as follows:

[37]

Notwithstanding these decisions, there is in my opinion no sufficient reason to question the rule, laid down in Benson v. Northern Ireland Road Transport Board, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time. The rule was in my opinion correctly applied in Thompson v. Mastertouch T.V. Service Pty. Ltd. [No. 3] [19] . Section 24 of the Federal Court of Australia Act is quite general in its terms. The provisions of s. 28(1)(e) indicate that the court on appeal would have no power to order a verdict of guilty to be entered and therefore no power to set aside a verdict of not guilty. It is unlikely that the draftsman, having specifically referred to a verdict of not guilty, would have intended that a verdict of guilty should be embraced by the general words "or other appropriate verdict", and those words have a further function to fulfil even if they do not refer to a verdict of guilty, as Deane J. pointed out in Thompson v. Mastertouch T.V. Service Pty. Ltd. [No. 3] [20] . The general words of s. 28(1)(f) cannot be understood as intended to give power to order a new trial after a verdict of not guilty has been entered. This view is strengthened by the contrast between the general words of these provisions and the express terms of s. 28(5) which recognize that the Crown has a right to appeal against sentence. If Mastertouch is wrong, it would seem to follow that s. 24 would give an unqualified right of appeal to the Federal Court from a judgment of acquittal based on a jury's finding of not guilty: see per Deane J. [21] ; that would be an unprecedented legislative innovation, at least in England or Australia. I accordingly respectfully agree with the conclusion of Deane J. in Thompson v. Mastertouch T.V. 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 [22] . 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.

[41]

In England the principle on which the rule against double jeopardy rests has been thought to be inconsistent with the notion that an accused person, once acquitted by a jury, should have to face a new trial. In Reg. v. Duncan [24] , the court refused an application for a new trial of a defendant who had been acquitted by a jury at quarter sessions, and Lord Coleridge C.J. said [25] , "The practice of the Courts has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted." Consistently with this view, when a convicted person was, in 1907, first given a right of appeal, the Court of Criminal Appeal in England was not given power to order a new trial - with results that many have thought inconvenient. Today the position remains that the Court of Criminal Appeal in England cannot order a new trial, except where an appeal against a conviction is allowed only by reason of fresh evidence: s. 7 of the Criminal Appeal Act 1968 U.K.. The Criminal Appeal Act 1907 U.K. had the effect that the prosecutor (inter alios) might appeal to the House of Lords in a case in which the Court of Criminal Appeal had quashed a conviction, and neither the Parliament of the United Kingdom, nor the House of Lords in its judicial capacity, apparently saw in this provision any conflict with the principle that a verdict of acquittal is final. In R. v. Ball [26] the House of Lords rejected the argument that the role of the House of Lords on such an appeal was to do no more than give its opinion for guidance in future cases, and held that the proper course, when a judgment of the Court of Criminal Appeal was reversed, was to remit the case back to the Court of Criminal Appeal to proceed in accordance with the judgment of the House of Lords [27] . Since that time the House of Lords has not infrequently reversed a decision of the Court of Criminal Appeal directing a verdict to acquit: a few well known examples are Director of Public Prosecutions v. Beard [28] ; Attorney-General (Northern Ireland) v. Gallagher [29] and Reg. v. Humphrys [30] .

[48]

I think this application should be refused in the exercise of the discretion of the Court. An application for special leave to appeal from a judgment of acquittal is a rare thing. According to the decision of this Court in Lloyd v. Wallach [45] , the terms of the Constitution are sufficiently wide to enable us to entertain an appeal from a judgment of acquittal. The judgment of acquittal in this case is the judgment of the Supreme Court as a court of criminal appeal and is contrary to the verdict of the jury and not in accordance with the verdict of the jury. We would not, of course, go behind a verdict of not guilty. In Secretary of State for Home Affairs v. O'Brien [46] , the House of Lords construed the Appellate Jurisdiction Act 1876 in a way which is not quite consistent with the interpretation which this Court placed upon s. 73 of the Constitution. This Court nevertheless has continued to act upon that interpretation and has entertained applications by the Crown for special leave to appeal from judgments of acquittal given by courts of criminal appeal. We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court. I would respectfully venture two comments on his Honour's remarks. First a judgment of a Court of Criminal Appeal quashing a conviction is not the same as an acquittal by a jury, as was pointed out in R. v. Weaver [1] and as I think Dixon J. recognized in the passage which I have just cited. Secondly, Secretary of State for Home Affairs v. O'Brien was an appeal from an order granting habeas corpus; that case is analogous to one in which an appeal is brought from an acquittal, but not to a case in which the appeal is from an order setting aside a conviction. In any case, it seems to me clear that Dixon J. was proceeding on the footing that the earlier decisions, to which I have referred and which recognize that the High Court has jurisdiction to grant special leave to appeal from judgments directing the entry of a verdict of acquittal in place of a jury's verdict of guilty, were correctly decided, although he pointed out that special leave would be granted only in exceptional cases. A different view has been taken by Murphy J. who, in Cameron v. Holt [2] , said that s. 73 of the Constitution does not give jurisdiction to hear an appeal from an acquittal on a criminal charge. With all respect that is a minority view. 1. (1948) 77 C.L.R. 511. 2. (1948) 77 C.L.R., at pp. 516-517. 3. (1915) 20 C.L.R. 299. 4. [1923] A.C. 603. 5. (1931) 45 C.L.R. 321. 6. (1980) 142 C.L.R. 342, at p. 349.

[49]

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. In England this can be done on appeal by way of case stated: see Bracegirdle v. Oxley [3] and Reg. v. Dorking Justices; Ex parte Harrington [4] . In Australia also the procedure of appeal by way of case stated has been held to be available to an aggrieved complainant: Kench v. Bailey [5] . In addition, however, there is available the more ample remedy of appeal by order to review, and in some of the Australian States an unsuccessful complainant may appeal by this means against the dismissal of a complaint by a magistrate or justices. In the case of quarter sessions in New South Wales, the right of appeal given by the statutory provisions is more restricted. It has been held that once an appeal from a conviction by a magistrate has been upheld, and the conviction has been set aside, the chairman of quarter sessions has no power to state a case, but he may do so when he has announced an intention to allow the appeal and to dismiss the charge, but before he has actually determined the appeal: Reg. v. Diakakis [6] ; Reg. v. Garnet-Thomas [7] . This rather technical result depends primarily on the effect of the relevant legislation, construed in the light of the rule in Benson v. Northern Ireland Road Transport Board [8] . However, quarter sessions have always stood in a rather special position, and the two decisions to which I have referred are of no great assistance for present purposes. An appeal from a decision of a magistrate dismissing a complaint may be brought directly to this Court pursuant to special leave to appeal granted under s. 39(2)(c) of the Judiciary Act, and this not uncommonly occurs in constitutional cases: see, e.g., Collins v. Charles Marshall Pty. Ltd. [9] and Buck v. Bavone [10] . 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. An example chosen at random of a case where that was done is Samuels v. Bosch [11] . In Cameron v. Holt [12] , to which reference has already been made, the Court, by a majority, refused special leave to appeal from a decision of a Supreme Court quashing a conviction. It is clear however from the judgments of Stephen and Mason JJ. that they refused special leave on discretionary grounds and not because of any doubt as to the power of this Court to grant special leave [13] ; of the other members of the Court Barwick C.J. and Aickin J. would have granted special leave to appeal.

[187]

Any statement of the rationale of the common law rule against double jeopardy is incomplete, however, unless it also takes account of the fact that, at least in common law countries and apart from the exceptional case of a private prosecution, both the prosecutor and the court in a criminal case are essentially emanations of the same entity. Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the State. It is the State that establishes and maintains the judicial system. It is the State that brings an accused person before that judicial system on a charge of an offence against the law of the State. It is in the State's favour that the overwhelming balance of power and resources will ordinarily lie. If, in that context, a competent court in the State's own system rules that the State's charge should be dismissed and makes an order that the person against whom the State has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge. Put another way, the citizen who is told by a competent court of the State that the State's proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court's decision. That is not, of course, to say that a mistaken decision of law leading to an acquittal should be permitted to stand as a bad precedent; there are many examples of legislative provisions which effectively allow for an appeal on questions of law involved without subjecting the person who has been acquitted by a competent court to renewed jeopardy: see, e.g., Criminal Appeal Act 1912 N.S.W., s. 5A; Crimes Act 1958 Vict., s. 450A; Criminal Code W.A., s. 693A; Criminal Code Q., s. 669A(2).