DPP v Aarons [1999] VSCA 71

7. The reasons for judgment prepared by my brother Chernov express more fully the reasons why I, too, joined in the order made on 22nd April 1999 dismissing the appeal as incompetent.

12. At the beginning of the hearing of this appeal brought by the Director of Public Prosecutions ("the Director") in respect of the sentence which was imposed on the respondent by a judge of the County Court on 17 November 1998, the respondent submitted that the appeal was incompetent because the Director failed to serve the notice of appeal within the time prescribed by s.567A(3) of the Crimes Act 1958 ("the Act"). For reasons which become evident later, the respondent's objection raises the issue of whether the Registrar has power under s.582A of the Act to give leave to the Director under s.567A(3) to serve the notice of appeal on the respondent notwithstanding that the service of it has not been effected within the one month period prescribed by that sub-section.

15. After hearing submissions from counsel for the Director on this issue, the Court ordered that the appeal be dismissed as being incompetent. I joined in the making of that order and I now set out my reasons for doing so.

18. For the purposes of dealing with the submission made on behalf of the Director, it is only necessary to give a brief summary of the relevant events. The respondent, who was born on 10 August 1968, pleaded guilty on 17 November 1998, to one count of arson contrary to s.197(2) of the Act. The charge was that the respondent "intentionally and without lawful excuse, damaged by fire a building known as Ruby Red nightclub intending by the damage to endanger the life of another".

21. The circumstances giving rise to the offence were as follows. At approximately 1.10 a.m. on 18 January 1997, the respondent was evicted from the Ruby Red nightclub, located at 9 Drewery Lane, Melbourne by security staff, having been found to be drunk. The apparently disgruntled respondent then travelled by taxi to a service station in East Melbourne, purchased a container of petrol and returned with it to the nightclub (in the same taxi). At approximately 1.45 a.m., he set fire to the nightclub's side doors using the container of petrol. The fire spread from the outside of the side doors to underneath and inside the doors and also to the adjacent door of a neighbouring building. The prompt action of the security staff who used hand-held fire extinguishers, put out the fire thereby preventing more serious consequences: there were approximately 150 people at the nightclub and most of its interior was comprised of readily combustible timber. The premises were damaged to the extent of some $660.

24. Attempting to leave the scene and smelling of petrol, the respondent was detained by one of the security staff involved in his earlier eviction. Police arrived shortly thereafter and took him into custody. After being cautioned, the respondent denied any involvement in the fire, which he claimed had been lit by his friend, "Russ". At the police station, the respondent made a series of admissions and, in light of his subsequent plea of guilty, a number of false statements, particularly in respect of the alleged involvement of "Russ" in the commission of the offence. He did admit that he was angry and upset at having been ejected from the nightclub. He also admitted that he purchased the container of petrol, but stated falsely that it had been done upon the instigation of his friend "Russ". He also falsely stated that it was his friend's idea to blow up the tin of petrol near the nightclub, so as to scare people and thereby exact some form of revenge upon the security staff.

27. On 17 November 1998, after hearing a plea in mitigation, the learned sentencing judge convicted the respondent on the above count and fined him $1,000. On 14 December 1998, the Director signed a notice of appeal against that sentence. On 16 December 1998, he applied to the Registrar of this Court for leave pursuant to s.567A(3) to serve on the respondent the notice of appeal more than one month after the date of the sentence. On 17 December 1998, the Registrar granted or purported to grant the leave sought and on 22 December 1998, the Director served the respondent with the notice of appeal within the time so extended by the Registrar.

30. Counsel for the Director submitted that although s.567A(3) speaks of the Court of Appeal giving leave to serve the notice of appeal after the expiration of the relevant period, its practical operation is to empower the Court to extend the time within which the notice of appeal may be served. As s.582A is similarly concerned with extending time to give the relevant notices, it operates to empower the Registrar to give leave under s.567A(3). It was contended on behalf of the Director, that since the Registrar gave leave in this case and service of the notice of appeal was effected within the period allowed by his order, the respondent was properly served with the notice of appeal and, therefore, the appeal was competent.

33. Whatever may be said about the virtues of the Director's submission as to the practical operation of s.567A(3), it wholly disregards the wording of that provision (and of other relevant sections) from which the intention of Parliament as to the power to be vested in the Registrar by s.582A is to be deduced. In order to determine that issue, it is necessary to examine the wording and legislative history of the relevant provisions.

36. Section 567A was introduced by Act No.8063 of 1970, the Criminal Appeals Act 1970, and is concerned solely with appeals by the Director against sentence ("Crown appeals"). So far as is relevant, sub-s.(1) deals with the Director's right to appeal to the Court of Appeal against the imposition of a sentence on a convicted person. Sub-section (2), in effect, requires the Director to serve the notice of appeal upon the respondent. Sub-section (3) now provides:

"Notice of appeal under sub-section (1) against a sentence shall not be given under sub-section (2) more than one month after the passing of the sentence without first obtaining the leave of the Court of Appeal so to do."

There is no doubt that the requirements of this provision are mandatory. Thus, the Director cannot proceed with the proposed appeal unless he has served the notice of appeal on the respondent either within the stated period of one month or thereafter, but in the latter case, only after he has obtained leave of the Court of Appeal to do so. It will be noted that the sub-section does not speak of the one month period being extended by the Court of Appeal. Rather, it is concerned with the granting of leave to serve the relevant notice after the critical time has expired.

41. It is convenient to mention at this point s.567A(5). So far as is relevant, it provides that certain sections which are found in Division 3 of Part VI and which deal with procedure, shall, with such adaptations as are necessary, apply to Crown appeals. This sub-section was part of s.567A when it was first introduced and there have been no relevant amendments to it since that date. I will come back to that provision later.

44. The introduction of s.567A was the subject of contentious debate in the Victorian Parliament. Prior to its enactment, the position in Victoria was that the Crown could not appeal against an acquittal or the sentence imposed on conviction. Consequently, the introduction of s.567A in 1970 represented what seemed to be a radical departure from the practice of the day. One of the major concerns articulated by the Opposition was that there was no time limit in the then proposed s.567A(3) on the right of the Attorney-General to make application for leave to serve notice of appeal out of time. (The Attorney-General was replaced by the Director as the person responsible for bringing Crown appeals by s.18(1) of Act No.9848 of 1982, the Director of Public Prosecutions Act 1982). It was feared that "the situation could be reached where a person who had served his sentence and had been released could still be proceeded against by an appeal to the court. A person, having been released, could be in the process of rehabilitation and on his way back to leading a reasonable life and be called back before the court. This measure is purely retributive and punitive". (Mr. Doube, Hansard, Legislative Assembly, 17 November 1970, p.1977).

47. The response of the Attorney-General of the day to this concern may give some guidance as to the policy considerations which underpinned this part of the legislation. He said that "the provision [s.567A(3)] as drafted restricts the appeal by the Crown to the giving of one month's notice. Sub-section (3) of the proposed new s.567A provides that after one month, leave of the Full Court is necessary before the appeal can be made. In my view, this is a sufficient safeguard against undue delay .." (Mr. Reid, Hansard, Legislative Assembly, 24 November 1970, p.2345). It seems that the Attorney-General was of the view that by placing the issue of leave to give notice out of time into the hands of the Full Court, there was sufficient guarantee that any such application would not be granted without the court having due regard to any prejudice which might befall the proposed respondent by the delay in serving the notice of appeal. Section 567A was amended after 1970, but none of the amendments are relevant for present purposes.

50. I mention for completeness that there is no express mention in the Parliamentary Debates of s.567A(5), other than to note that it contained procedural provisions.

53. Section 582 (which is located within Division 3 of Part VI and which predates s.567A) now empowers a single judge of the Court of Appeal to exercise, in the first instance, the powers of the Court of Appeal under Part VI "to give leave to appeal, to extend the time within which notice of appeal or of an application for leave to appeal may be given, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, and to admit an appellant to bail." The reference in the section to the power of the Court of Appeal to "extend the time" within which the relevant notice may be given, is clearly a reference to the power referred to in s.572. It is also to be noted that the power so conferred on a single judge by s.582 does not extend to the power to grant "leave" under s.567A(3).

56. Until 1 July 1984, applications under s.567A(3) and s.572 were required to be made to the Full Court (except that an application under the latter provision could be made, in the first instance, to a single judge of that Court under s.582).

59. Section 582A was inserted into the Act by s.14 of Act No.10084 of 1984, the Crimes (General Amendment) Act 1984, which commenced operation on 1 July 1984. Sub-section (1) now provides:

"The powers of the Court of Appeal under this Part to give leave to extend the time within which the notice of appeal or notice of application for leave to appeal may be given, may be exercised by the Registrar in the same manner as they may be exercised by the Court of Appeal, and subject to the same provisions".

63. It is at once obvious that the drafting of this clause appears a little confusing. There is no section in Part VI of the Act which, in terms, gives the Court of Appeal the power to grant "leave" to extend the time within which the relevant notice may be given. The only provision in Part VI which deals with the Court of Appeal being empowered to grant "leave" in respect of the time within which a relevant notice may be served is s.567A(3). But its terms do not deal with extension of time. As I mentioned earlier, s.567A(3) is concerned with the Court granting leave to serve the relevant notice, notwithstanding the expiration of the critical period. The only provision in Part VI which empowers the Court of Appeal to extend the time within which the relevant notice may be given is s.572(1). But neither provision speaks of the power of the Court of Appeal to give "leave to extend the time".

66. In the course of preparing this judgment, Callaway, J.A. has observed that the reason why the draftsperson of s.582A referred to "leave" to extend the time within which the relevant notice may be given was probably that he or she endeavoured to model the new provision on s.582 but misread it. This becomes apparent if one looks at the first two lines of each of the two provisions. It seems that the draftsperson mistakenly understood the words "to give leave" in the second line of s.582, to govern not only the words "to appeal", but also the words "to extend the time" which appear after the comma. That being so, it cannot sensibly be argued that s.582A operates in relation to s.567A(3) merely because the word "leave" is used in both sections. I respectfully agreed with the observations of his Honour. Moreover, "leave to appeal" in s.582 originally meant leave to appeal under s.567(c) or (d). It may well extend now to leave to appeal under s.570A(1)(b) and s.570C, but it does not encompass leave to give notice to appeal under s.567A(3). The endeavour to base s.582A(1) on s.582 therefore confirms the view that the new section is confined to empowering the Registrar to exercise the power of the Court of Appeal to extend the time under s.572.

69. The terms of s.582A relevantly correspond with those of s.572(1) but not with those of s.567A(3). Thus, the 1984 provision is concerned with the power to extend time, as is s.572(1). Similarly, ss.582A and 572(1) deal with extending the time in relation to the service of a notice of appeal or a notice of application for leave to appeal. On the other hand, there is no such correspondence between s.582A(1) and s.567A(3). As has been noted earlier, the words of the latter provision are concerned with the granting of leave to the Director to serve the notice of appeal after the critical date. They are not concerned with extending time.

72. Consequently, on a plain reading of s.582A, the section does not confer on the Registrar the power to grant leave under s.567A(3). In order to be effective, such leave must be obtained from the Court of Appeal itself. That is not to say that leave granted under s.567A(3) will be unconditional. It can be fairly expected that usually a time limit will be imposed within which the notice of appeal must be given, as was the case in R v. O'Keefe [1979] VicRp 1; [1979] V.R. 1, 5. In that case the Full Court granted leave to the Attorney-General to give notice of appeal outside the relevant period but imposed a condition that it be given within 14 days of the date of the pronouncement of the order.

75. There are other factors which support this conclusion. First, s.582A is not included in the group of sections referred to in s.567A(5) which are made, by virtue of that sub-section, to apply to Crown appeals. It would seem that it was intended that the sub-section set out exhaustively the procedural provisions contained in Division 3 which were to apply to Crown appeals. That this was the likely intention of sub-section (5) may be deduced from the fact that it includes not only those sections of Division 3 which require modification or adaptation before they can apply to criminal appeals, but also ss.573 and 581 which require no adaptation and which, on their face, apply to Crown appeals as well as appeals by convicted persons. There is no apparent purpose for including those two sections within sub-s.(5) of s.567A other than to make them part of the exhaustive group of sections in Division 3 which were intended to apply to Crown appeals.

78. Notwithstanding the scheme of s.567A(5), Parliament did not amend the sub-section when it passed s.582A, so as to include s.582A within the group of sections to which I referred earlier. It was argued by counsel for the Director that s.582A was not included in s.567A(5) because the sections included in that provision formed a genus, being one which was concerned with matters pertaining to the hearing of appeals. It was said that since s.582A is not concerned with the hearing of appeals, it is not surprising that it was not included in that sub-section. Although such an argument has force, the better view is that, for reasons given earlier, the sub-section sets out exhaustively those sections of Division 3 which are to apply to Crown appeals, yet omits s.582A.

81. Secondly, it is not surprising that Parliament did not intend the Registrar to have the power to grant leave contemplated by s.567A(3), but to require it to be exercised by the Court of Appeal itself. In the first place, there is no practical or administrative need to extend the power of the Registrar in this way. It has been recognised before (and after) 1984 that Crown appeals should be brought only in the rare and exceptional case, to establish some matter of principle and to enable the Court of Appeal to give guidance to courts having the duty to sentence convicted persons (see Griffiths v. R. [1977] HCA 44; (1977) 137 C.L.R. 293, 310; Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295, 300; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, 522). Consistently with these observations, the number of Crown appeals has been minuscule when contrasted with the number of applications for leave to appeal by convicted persons under s.567(d). An indication of the number of Crown appeals over the years may be gleaned from the information provided by the Director to the Court during the hearing of a case which concluded shortly before the hearing of the present appeal. Since 1992, the number of Crown appeals were as follows: 1992/3 - 23; 1993/4 - 21; 1994/5 - 20; 1995/6 - 5; 1996/7 - 12; 1997/8 - 10.

84. Thus, there was good reason to grant the Registrar, in the first instance, the power to extend the very limited time provided by s.572, thereby freeing judicial time to enable it to be devoted to the hearing and determination of appeals and applications for leave to appeal under s.567. The same consideration, however, does not apply in respect of appeals under s.567A.

87. Furthermore, since a Crown appeal places the person who has already been sentenced by the court at risk of being dealt with again, there is much to be said for the Court of Appeal itself determining applications by the Director under s.567A(3). So to construe the legislation is consistent with the Parliamentary debates referred to earlier.

90. I note further that the Supreme Court (Criminal Procedure) Rule_s_ 1998 ("the Rules") were drafted consistently with the above interpretation of s.582A. Although, the Rules cannot be used to construe the legislation (Jackson v. Hall [1980] A.C. 854, 884, 886, 889, 890 and 896; Webster v McIntosh [1980] FCA 128; (1980) 49 F.L.R. 317 per Brennan, J. at 321; Thorn EMI Pty. Ltd. v Federal Commissioner of Taxation (1987) 13 F.C.R. 491 per Beaumont, J. at 498; Cassidy v Murray [1995] FamCA 91; (1995) 124 F.L.R. 267, 279-280), there is some authority for the proposition that subordinate or delegated legislation may be looked at to confirm the construction which the court considers the legislation properly bears (Hales v Bolton Leathers Ltd [1951] A.C. 531 per Lord Normand at 544, per Lord Oaksey at 548). The Rules are principally concerned with appeals by persons convicted of offences, but r.2.13.1(2) makes specific provision for the application of rr.2.10 and 2.11 to Crown appeals. These rules do not deal with an application for extension of time or, relevantly, for leave to serve the notice of appeal after the expiration of the relevant time (in the case of Crown appeals) and they were certainly not drafted on the basis that applications for leave under s.567A(3) can be made to the Registrar.

93. I mention for completeness that the failure by the Director to serve the notice of appeal within the required time does not mean that he has necessarily lost his right of appeal under s.567A. It does mean, however, that before a valid appeal can be instituted by him, he must first obtain leave of this Court under s.567A(3) to serve the notice of appeal on the respondent and effect such service within the period allowed by the Court. The Court can entertain such an application for leave notwithstanding that it is made after the expiration of the relevant period. In R. v. O'Keefe, the Full Court said that the presence of the word "first" in the section merely requires, where more than one month has elapsed since the passing of the sentence, that leave to give notice of appeal be obtained before the notice is given. But this wording of the provision also means that any leave that is granted operates only prospectively so that in this case, it would not validate the service of the notice of appeal which was effected on 22 December 1998.