Evans v Sheils [2004] ACTSC 19

Supreme Court of the ACT|2004-04-19|Before: Miles CJ, Connolly J

1. This application is said to be an appeal pursuant to s 48A of the Australian Capital Territory (Self-Government) Act 1988 (the Australian Capital Territory (Self- Government) Act) from the whole of the orders made by Magistrate Dingwall on 12 December 2003. The substantive matter involves an allegation that the respondent at about 1 am on 4 June 2003 did drive a motor vehicle with a prescribed concentration of alcohol in his blood. The learned Magistrate found the offence proven, but adjourned the sentencing of the offender, and it is in substance that decision that is sought to be the subject of this appeal.

2. The facts of the matter, as found by the learned Magistrate, was that the respondent, who was an employee of a car dealer, drove in his work supplied vehicle to a bar in Phillip after work. He consumed a quantity of alcohol and formed the opinion that he should not drive himself to his home in Queanbeyan. He ordered a taxi to collect him from the establishment. He had parked his vehicle in a place that he considered unsafe, so he got into his vehicle and moved it around the block to leave it parked in a safe and well lit place. A police patrol observed the vehicle being moved and spoke to the respondent, who acknowledged moving the vehicle. He was breathalysed with a reading of .16.

3. The Magistrate found the offence to be proved but deferred sentencing, remanding the matter for six months. He admitted the respondent to bail on certain conditions, including that he accept directions of the ACT Corrective Services in relation to alcohol and driving courses, and that he accept restrictions on his driving, being limited to driving from Monday to Saturday between 7.30 am and 6.30 pm only and only for the purposes of his employment, attending for medical treatment and attending for any interviews arranged by Corrective Services, with the further condition that he not consume alcohol for a period of eight hours before driving.

4. The respondent has two prior convictions for driving with a prescribed concentration of alcohol. Both convictions were in Queanbeyan in 1994 and 2000. The relevant legislation in the Australian Capital Territory would require the Magistrate to impose a penalty which would include a mandatory licence cancellation. However, while the legislature has deemed this to be necessary, the legislature has not precluded a magistrate, dealing with a charge of driving with a prescribed concentration of alcohol, from dealing with the charge pursuant to s 402 of the Crimes Act 1900 (the Crimes Act). This section provides:

402. Conditional release of offenders without proceeding to conviction

(1) I f-

(a) a person is charged before a court of the Territory with an offence against a Territory law; and

(b) the court is satisfied that the charge is proved but is of opinion, having regard to -

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge, or without proceeding to conviction, by order, direct that the person be discharged on his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that -

(c) he or she will be of good behaviour for the period, not exceeding 3 years, that the court specifies in the order; and

(d) he or she will, during the period so specified, comply with the conditions (if any) that the court may think fit to specify in the order, which conditions may include -

(i) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being, appointed in accordance with the order; and

(ii) the condition that the offender will obey all reasonable directions of a person so appointed; and

(iii) the condition that the offender will comply with an order made under section 350.

5. It is apparent from the transcript that the learned Magistrate was contemplating such a disposition in this matter, and that he has found the offence proven (being the precursor for any exercise of power contained in s 402), and then adjourned the matter for a period of six months.

6. Such an option is clearly open to the Magistrate, and has acquired the term "Griffiths remand", following the decision in the High Court of Griffiths v R [1977] HCA 44; (1977) 137 CLR 293. In Selles and ACT Director of Public Prosecutions v Bailey [2000] ACTSC 111 Crispin J was considering an appeal by the prosecution from a decision by a Magistrate to impose a Griffiths remand before proceeding to sentence a person for a series of offences including driving a vehicle while under the influence of a drug, driving while a licence was cancelled, driving an unregistered and uninsured vehicle, stating a false name and address, possessing cannabis and contravening an order under the Periodic Detention Act 1985.

7. In that case Crispin J expressed the view that, given all the circumstances and the antecedents of the respondent, it was not a case where a Griffiths remand was appropriate. However, he made the further observation that the only outcome were he to accept the appeal would be to send the matter back to the Magistrate for sentence, and that that would happen in any event at the end of the Griffiths remand period. He concluded, in dismissing the appeal, that [27] -

... I am not satisfied that appellate intervention would serve any significant purpose. The respondent will presumably be sentenced on the date to which she has been remanded in the light of all of the evidence then available and the competing arguments by counsel. The evidence may cast new light on the circumstances to which I have referred and it would be inappropriate for me to express any opinion as to what course should then be pursued. However, it will be open to the appellants to appeal against the perceived leniency of any sentences which may then be imposed, and on the hearing of any such appeal this court would have the benefit of the Chief Magistrate's findings. In my view that would be the preferable course.

8. It seems to me with respect that his Honour's approach should be followed in this case. As he observed, there is no legislative provision in this Territory comparable to that contained in the Criminal Appeal Act 1912 (NSW) extending the concept of a sentence to embrace a Griffiths remand, so that there is no power for this Court, on an appeal from what is, in effect, only an adjournment order, to proceed to impose, ab initio, the sentence that this Court thinks would be appropriate. The only outcome of a grant of the appeal would be to remit the matter to the Magistrate for sentence, but the matter would go back to the Magistrate for sentence in any event. I share Crispin J's view that there is little benefit in such a course, and would go further in expressing the view that such appeals in general serve little public interest. The magistrates are appointed to administer the criminal law in the Territory, and to bring to each case their wisdom and experience. A Griffiths type remand is an option clearly available to a magistrate, and a final disposition of a matter pursuant to s 402 of the Crimes Act is an option available to a magistrate. Although the legislature has made certain periods of cancellation of a licence mandatory upon conviction for certain drink driving offences, the legislature has not precluded a magistrate from dealing with such a matter pursuant to s 402. Whether, at the end of the day, the magistrate will proceed that way, will of course depend on the evidence brought before him on the resumption of the sentencing procedure, and on the submissions of counsel. It would be inappropriate for me to express a view because, following the imposition of the sentence, which may include a disposition of the matter by way of s 402 of the Crimes Act, there would be available to the prosecution an appeal to this Court against any perceived leniency in the sentence, just as there would lie an appeal by the present respondent against any perceived excess in any penalty. This Court, with the benefit of the sentencing remarks and the findings of the magistrate, could then undertake its proper role in appellate review of sentence. That is the proper point for any appeal, rather than on an adjournment before the magistrate has imposed a sentence.

9. It was argued that the Magistrate had erred in that he had, in admitting the respondent to bail, imposed a financial penalty upon the respondent in a manner not authorised by the Bail Act 1992. This penalty was said to be a sum of $700. This does not, however, appear on the bail conditions (AB 6), which provide only that he "obey all reasonable directions" of the ACT Corrective Services. It is clear from the Magistrate's remarks (AB 16) that it was anticipated that such reasonable directions could involve attendance at an alcohol and driving course, and that that would involve a fee or donation in the order of $700. That, it seems to me, is not a fine or penalty.

10. Admitting a person to bail will often involve a cost to the person admitted to bail, but that surely does not invalidate the bail condition. A condition as to residence may well impose a substantial cost if a person charged with a domestic violence offence is admitted to bail on condition that he not reside at the former matrimonial home. A condition as to daily reporting at a police station will impose a cost on a person by way of travel expenses, greater if they do not have a car. A condition as to attending a course may impose a cost, but that, it seems to me, does not make it an invalid bail condition. In any event, there is no evidence before me, beyond the exchange between the Magistrate and counsel about the desirability of attending an alcohol and driving course, that the respondent has been required by ACT Corrective Services to attend such a course, or has been required to pay any fee or make any donation. Again, any appellate point is, it seems to me, premature.

11. I would therefore dismiss the appeal on the assumption, that was common ground by counsel, that there is jurisdiction to bring such an appeal by reason of s 48A of the Australian Capital Territory (Self-Government) Act. That assumption will need to be re-examined by the Court of Appeal because, it seems to me with respect, the reasoning supporting it is flawed.

12. The proposition that the ACT Supreme Court, uniquely in Australia, exercises an unlimited appellate jurisdiction to roam at large and do justice wherever it perceives a need, is of course contrary to the long-established authority that an appeal is a creature of statute, and that an appeal only lies where there is a clear provision granting it. There was no such thing as a general right to criminal appeal at English law until the enactment of the Criminal Appeal Act 1907 (see Freidland ML, New Trial After Appeal from Conviction (1968) 84 LQR 48 &105). Similar legislation quickly came to be enacted in Australia, and as Deane J noted in Chamberlain v The Queen [No2] [1984] HCA 7; (1984) 153 CLR 521 at 613, the common form of criminal appeal provision existed in all Australian states by 1924. As Gibbs CJ and Mason J said in Chamberlain v The Queen [No2] at 527-528 -

The power to quash a conviction and grant a new trial of a criminal case at common law was very limited. It was held by the Privy Council in Reg v Bertrand [1867] EngR 20; [1867] LR 1 PC 520 that no power existed to grant a new trial to a person convicted of a felony.

13. Their Honours noted that there was old English authority for the proposition that misdemeanour convictions could be reviewed in the Court of Queens Bench, but they pointed also to contrary authority in New South Wales where Windeyer J in R v McLeod (1890) 11 LR (NSW) 218 said he doubted that the rule "that the Court will grant a new trial in a civil case where evidence has been improperly admitted, cannot be applied on the criminal side of the Court, where no power of granting new trials exists".

14. In Kelly v Apps [2000] FCA 687, (2000) 98 FCR 101 the Full Court of the Federal Court was considering an appeal from a Judge of this Court from a decision that there was no jurisdiction in this Court to review a costs order in the Magistrates Court. In the course of his reasons for decision, which were given ex tempore, Wilcox J said at [16] to [18]-

[16] During the course of argument reference was made to s 20 of the Supreme Court Act 1933 (ACT). This section is as follows:

Jurisdiction and powers of the Supreme Court

(1) The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory

(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers where it has concurrent jurisdiction with another court or Tribunal.

[17] The words of par (a) of subs (1) are extremely broad. They include all appellate jurisdiction that is necessary to administer justice in the Territory.

[18] The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory.

15. It seems to me, with respect, that the ex tempore remarks of Wilcox J (which were endorsed by Gallop and Marshall JJ) do not bear close scrutiny. To draw from a statutory grant of "all original and appellate jurisdiction that is necessary to administer justice" the proposition that the Supreme Court has the ability to "right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory" is to draw a conclusion quite at odds with the traditional view of an appellate court jurisdiction. It is settled law, both from Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 and Eastman v The Queen [2000] HCA 29, (2000) 203 CLR 1 that there is no power for the High Court to receive fresh evidence on an appeal, in the case of Eastman, an appeal from this Court. But does Kelly v Apps mean that a litigant who has exhausted all appeals up to and including the High Court can invoke a jurisdiction in this Court to "right any wrong"?

16. Appeals to this Court from tribunals created by the legislature are frequently constrained, either by a need for a grant of leave, or by a need for an appeal to raise a point of law. It has been held by Crispin J in FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82, Spender J in FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58, and in my reasons for judgment in Harrison v Commissioner for Housing [2003] ACTSC 22 that statutory provisions limiting the right of an appeal to this Court from a Tribunal to an appeal on a point of law were to be given effect. In FAI Properties Pty Ltd v Apostolopoulos, Spender J said at [14] that s 20 of the Supreme Court Act 1933 (the Supreme Court Act) -

... should be regarded as confirming the width of the power of the Supreme Court in respect of jurisdiction it possesses, but not as an express grant of power to rectify any wrong that might occur in the administration of justice by any court in the Australian Capital Territory.

18. In Rose v Snape [2000] ACTSC 115, Higgins J, as he then was, said at [47]-[48] -

It now seems that, if Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice.

Is leave no longer necessary for Small Claims Appeals? May appeals from the Administrative Appeals Tribunal be brought on the merits? Should this Court now regard itself as having jurisdiction to try summary offences? If so, by Judge alone or by Jury?

19. The provision in s 20 of the Supreme Court Act seems on its face to go no further than the general provisions conferring jurisdiction on Supreme Courts in Australian States. The New South Wales Supreme Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales" (s 23, Supreme Court Act (NSW)), but this has, on my researches, never been taken to imply a general warrant to "right any wrong" or to limit the ability of the state parliament to provide for particular appeal provisions from specialist Tribunals. It has never been taken to provide the basis for criminal appeal jurisdiction, which, at least in regard to an appeal against conviction, has always been sourced to the enactment in NSW in 1912 of criminal appeal legislation based on the English model. That appeal rights depend on express statutory provision remains sound law (Conway v R [2002] HCA 2, (2002) 186 ALR 328).

20. It seems to me that to read the grant of jurisdiction in s 20 of the Supreme Court Act to mean that this Court has a broad and unfettered jurisdiction to right any wrong is so inconsistent with the established authorities going to the nature and source of a criminal appeal as to be plainly untenable. In FAI Properties Pty Ltd v Apostolopoulos, Spender J, it seems to me, correctly described the section as -

confirming the width of the power of the Supreme Court in respect of jurisdiction it possesses, but not as an express grant of power to rectify any wrong that might occur in the administration of justice by any court in the Australian Capital Territory.

21. Kelly v Apps did not refer to the grant of jurisdiction contained in s 48A of the Australian Capital Territory (Self-Government) Act, which provides -

The Supreme Court is to have all original and appellate jurisdiction that is necessary to the administration of justice in the Territory.

22. This is in terms identical to s 20 but being contained in an Act of the Commonwealth Parliament overrides any inconsistent Territory law. It seems to me that this provision, like s 20 of the Supreme Court Act, confirms or defines the breadth of the judicial power in the Territory, but is not an express grant of specific or broad appellate review. There is nothing in the legislative history of s 48A to suggest that it was intended to create an overriding general right of appeal. Rather, the section was intended to reflect the position of the ACT Supreme Court as the judicial arm of the newly self-governing Territory. In introducing the Australian Capital Territory Supreme Court (Transfer) Bill 1992, which inserted s 48A in the self-government Act, the Federal Attorney-General, Mr Duffy, said -

In the Australian Capital Territory, the Australian Capital Territory (Self-Government) Act takes the place of a Constitution. It is, therefore, appropriate that the self-government Act should contain provisions entrenching the position of an independent judiciary in a similar manner to Chapter III of the Constitution in relation to the federal judiciary. ... Because the provisions are to be in Commonwealth legislation, the ACT judiciary will not be subject to the possibility of an attack on the independence of the ACT Executive or legislature. (Hansard, 6 May 1992, 2509)

23. The history of the transfer of judicial power to the newly self-governing Australian Capital Territory is set out in an article by former Chief Justice Miles, Justice at the Seat of Government (1992) 66 ALR 555. Nowhere in the debates preceding the enactment of s 48A, in either the ACT Legislative Assembly or the Commonwealth Parliament, was it suggested that this grant of judicial power would mean that the ACT Supreme Court, uniquely, would have an overriding and undefined general appellate jurisdiction, independent of specific appeal provisions, to "right any wrong".

24. The history of appeals in the criminal jurisdiction in England and Australia is set out at some length in Conway v R in the joint judgment of Gaudron ACJ, McHugh, Hayne and Callinan JJ and in the separate judgment of Kirby J, and is quite inconsistent with the premise in Kelly v Apps that a broad grant of judicial power carries with it a general appellate right.

25. It seems to me to follow from this that an appeal is a creature of statute and that the grant of a general jurisdiction to a superior court does not itself create appeal rights from inferior courts. To the extent that Kelly v Apps, which did not address the question of s 48A of the self-government act, suggests otherwise, it should, in my opinion, not be followed.

26. I am of the view that, absent the creation by the legislature of an appeal right from a Griffiths bond on an adjournment, the decision under challenge is not subject to appellate review in this Court. I dismiss the appeal.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the appellant: ACT Director of Public Prosecutions

Capital Territory (Self-Government) Act 1988

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