13 The operation of s.5 of Act in relation to a jury verdict of guilty was considered in Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257. The principal judgment was given by Kirby P, Priestley JA and Meagher JA agreeing. At p 263, Kirby P said:-
"The primary definition in par (a) simply repeats the noun being defined, although in the form of a verb. This fact caused both parties to search for the meaning of "convicted" by reference to common law understandings of the notion, explained in decisions of high authority in Australia and England. However, it is important to make the point that the Court's consideration is controlled by, the context in which the word appeared in a statute of the Australian Federal Parliament and for the purposes of the efficient operation of the Act. So fascinating is legal history, that it is easy to slip into the error of exploring its by-ways, mistaking the purpose of the search as one for the common law, or historical meaning, of the word "conviction", or "convicted" instead of the construction of the Act. The proper purpose of the Court's inquiry is to give the word, repeatedly used throughout the Act, a meaning which will achieve, with as little ambiguity and doubt as possible, the efficient operation of the Act."
14 At p 266, his Honour said:-
"It is true that the present legislation is not strictly uniform in the sense that the Corporations Law is. But it is based upon a common source, and with sufficient identity in its provision, to invoke the same principle. This Court has accepted that principle in many cases, including recently: see, eg, Camden Park Estate Pty Ltd v O'Toole (1969) 72 SR(NSW) 188; 90 WN (Pt 2) (NSW) 98, see discussion in Fernando v Commissioner of Police (1995) 36 NSWLR 567. It should do so in the present case. Far from considering that the holding of the Victorian Full Court in McCoid is plainly wrong, I believe that it is plainly right. It applied the majority view of the High Court in Griffiths . It accords with the approach taken by this Court in Frodsham . The use of a particular formula of conviction is unnecessary: see Frodsham (at 691). All that is necessary is that the judge should accept and proceed upon the jury's verdict. This, Slattery AJ sufficiently did when he remanded the appellant in custody for sentence."
15 The principle has been authoritatively determined, therefore, by the Full Court of the Supreme Court of Victoria in McCoid and by the Court of Appeal of this Court in Della Patrona, that, for the purposes of the word "conviction" in legislation of this type, all that is necessary is that the judge should accept and proceed upon a jury's verdict of guilty or upon a plea of guilty and that is sufficiently done if the judge remands the prisoner in custody for sentence.
16 Counsel for Mr Helou submitted that the law as enunciated in McCoid and in Della Patrona must be reconsidered in the light of Maxwell v The Queen (1996) 184 CLR 501. There are, throughout the reasons for judgment of Dawson and McHugh JJ and those of Gaudron and Gummow JJ in that case, statements which are inconsistent with the law as enunciated in McCoid and Della Patrona. Thus, at p 509, Dawson and McHugh JJ said:-
"In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 at 313-314), a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 at 488:
'It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.'
It is the disposal of the case which results in the judgment of the court embodying a determination of guilty. For that reason, it seems to us that the hesitancy displayed by Gibbs J, when he said in the passage cited above from R v Jerome and McMahon that a determination of guilty may 'even perhaps' be made 'by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained', was justified."
17 However, in Maxwell, the Court was concerned with the principle of autrefois convict and, as Dawson and McHugh JJ recognised at p 509, in the application of that principle, finality of adjudication is essential. At p 507, Dawson and McHugh JJ made it clear that they were concerned only with the question of conviction for the purposes of autrefois convict and not with the meaning of the term "conviction" in its broader sense. At p 507-508, their Honours said:-
"The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked (see Cobiac v Liddy (1969) 119 CLR 257 at 271). On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur … [135 ER 193 at 202]:
'The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court'. (Emphasis added.)
The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter (See Wemyss v Hopkins (1875) LR 10 QB 378 at 381)."
18 In my opinion, the law as enunciated in Maxwell provides no ground for failing to apply the law as enunciated in McCoid and Della Patrona, decisions which are now of many years standing and which dealt with the meaning of the term "conviction" for the purposes of the relevant statutes. Indeed, the more recent Proceeds of Crimes Act 2002 has, in s.331(1), adopted the identical definition of "conviction". If Parliament was dissatisfied with the interpretation adopted in McCoid and Della Patrona , it had the opportunity to make its intention plain. In McCoid and in Della Patrona, it was held that the concept of conviction in its broader sense should be adopted. I see no reason to dissent from that view.
19 Accordingly, the course taken by his Honour Judge Kinchington on 26 November 2001 of remanding Mr Helou in custody for sentence, was a conviction for the purposes of the Act. It matters not that there was not complete finality about the matter or that Mr Helou had an opportunity to seek to change his plea up until the time when he was formally convicted and sentenced.
20 I would answer the questions as follows:-