Was the notice of appeal competent?
6 The Crown submitted in support of its notice of motion of 9 May 2000 that:
· there was no "judgment of Justice Spender … given on 31 March 2000" as stated in the notice of appeal. Indeed, his Honour had expressly declined to enter any judgment; and
· even if this submission were to be regarded as merely technical in nature, and susceptible of amendment by substituting "the verdict of the jury" for "the judgment of Justice Spender" no appeal would lie from the verdict of the jury.
Each of these submissions was, in our opinion, correct.
7 The appellate jurisdiction of this Court is given by s 24 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). Section 24(1)(b) relevantly provides:
"24(1) … the Court has jurisdiction to hear and determine -
…
(b) appeals from judgments of the Supreme Court of a Territory …"
8 In s 4 of the Federal Court Act, judgment is defined as follows:
"4. judgment means a judgment, decree or order, whether final or interlocutory, or a sentence."
9 The most extensive consideration of the role of this Court in hearing and determining criminal appeals is found in Duff v R (1979) 39 FLR 317 where at 324 (28 ALR 663 at 670) a Full Court said:
"A judgment is defined by s 4 to mean "a judgment, decree or order, whether final or interlocutory, or a sentence" but the definition does not include the verdict of a jury. Although a verdict is not itself a "judgment" from which an appeal may be brought an appeal lies from the judgment which is entered upon a verdict in a criminal trial unless it be a judgment of acquittal.
The definition of the jurisdiction conferred by s 24(1)(b) is expanded by ss 27, 28 and 30. Section 28(1) specifies orders which the court might make "in the exercise of its appellate jurisdiction", and it confers upon the court power, inter alia, to:
"(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial …"
Before a new trial is ordered, the jury's verdict must, or course, be set aside for: "If the verdict stands, no other judgment can be given, and, therefore, the judgment which is given by the Judge appears to be the only act of the Court, and it is only against an act of the Court that an appeal lies. There is no other act of the Court; the verdict is not the act of the Court; the verdict is the act of the jury." (Footnotes omitted)
10 The reasoning of the Full Court in Duff is supported by the decision of the High Court in Musgrove v McDonald (1906) 3 CLR 132 where it was held that an appeal did not lie to the High Court from a verdict of a jury. Such a verdict was not, relevantly, a judgment, decree, or order within the meaning of those expressions in s 73 of the Constitution.
11 Musgrove v McDonald has been followed on many occasions - R v Snow (1915) 20 CLR 315 at 324 per Griffith CJ; Menges v R (1919) 26 CLR 369 at 373 per Barton J; Jenyns v Public Curator (Kew) (1953) 90 CLR 113 at 119 per Dixon CJ and McTiernan and Kitto JJ; Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308 at 318 per Windeyer J; and Riley v Nelson (1965) 119 CLR 131 at 149 per Barwick CJ.
12 These authorities, all of which deal with the interpretation of s 73 of the Constitution, have been held to be relevant to the interpretation of s 4 of the Federal Court Act. In Ah Toy v Registrar of Companies (1985) 10 FCR 280 a Full Court said at 285:
"It is accepted that the expression "judgment, decree or order" bears the meaning which the words "all judgments, decrees, orders …" have in s 73 of the Constitution: Moller v Roy (1975) 132 CLR 622 per Barwick CJ at 625."
13 We consider that there is no reason to doubt the correctness of the decision of the Full Court in Duff. The definition of a judgment in s 4 of the Federal Court Act does not include the verdict of a jury. An appeal to this Court lies from the judgment which is entered upon a verdict in a criminal trial, and not the verdict itself.
14 The position under s 24(1)(b) of the Federal Court Act regarding appeals from judgments of the Supreme Court of a Territory must be contrasted with the position which typically prevails in the States. The statutory provisions which govern criminal appeals in the States generally provide that a person convicted on indictment may appeal against his conviction or, with the leave of the Court, against the sentence passed on his conviction - see Criminal Appeal Act 1912 (NSW) s 5; Crimes Act 1958 (Vic) s 567; Criminal Code Act 1899 (Qld) s 668D; Criminal Law Consolidation Act 1935 (SA) s 352; The Criminal Code (WA) s 688 and The Criminal Code Act 1924 (Tas) s 410.
15 The term "conviction" has sometimes been understood, in context, to mean the complete orders made by a court after finding an accused person guilty of an offence. These orders will include both the finding of guilt and the sentence passed as a consequence: Re Stubbs (1947) 47 SR (NSW) 329 at 339; S (an infant) v Manchester City Recorder [1969] 3 All ER 1230 at 1246; Attorney-General (NSW) v Dawes [1976] 1 NSWLR 242 at 245; and R v Hannan; Ex parte Abbott (1986) 41 NTR 37 at 40-41. A court is not normally regarded as functus officio until it has "convicted" an accused in this sense of the term: Kopuz v District Court of New South Wales (1992) 28 NSWLR 232.
16 In other contexts, however, a finding by a jury that an accused person is guilty of the offence charged has been treated as being tantamount to a conviction. For example, in Cobiac v Liddy (1969) 119 CLR 257 at 273 Windeyer J discussed the various meanings traditionally accorded to the term "conviction":
"In more recent times it has been said that "the word 'conviction' is sometimes used as meaning the finding guilty; at other times it means that finding together with the judgment … of the Court". This, it seems to me, is especially so when the question arises in relation to proceedings in a court of summary jurisdiction. In a trial on indictment the jury's return of a verdict of guilty is properly called a conviction, although it will have no effect in law until judgment be given by the court. But in a court of petty sessions, the same person, the magistrate, decides the issue of guilt and imposes the sentence. If he announces in open court that he convicts the offender, there is a conviction, although for some reason he may not proceed to impose any sentence." (Footnotes omitted)
17 When dealing with the term "conviction" a court will not be taken to have convicted a person unless it does some act which unequivocally indicates that this was its intention. A plea of guilty which is recorded, but not accepted by the Crown, is not a "conviction" for the purposes of a plea of autrefois convict: R v Tonks & Goss [1963] VR 121; R v Jerome & McMahon [1964] Qd R 595.
18 In Griffiths v R (1977) 137 CLR 293 at 301 Barwick CJ referred to what he described as "the traditional position" where there is a trial with a jury - that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. That view was said to accord with the long-standing practice in New South Wales, where no specific step was taken to convict or direct the entry of a conviction after verdict.
19 This is also the approach taken in Victoria. In R v Celep [1998] 4 VR 811 Winneke P said at 813:
"Section 567 of the Crimes Act 1958 authorises the court to exercise its powers at the behest of a person "convicted on indictment". The effect of his Honour's disposition is that the matter has been adjourned for a period of two years and that, if the applicant adheres to the undertaking given, there will be no formal judgment of conviction recorded. However, the jury's verdict of "guilty" on count 3 was accepted by the court before the jury was finally discharged, and has been noted on the back of the presentment. That, in my view, is a sufficient "conviction" to support an appeal under s. 567 notwithstanding that the conviction might never be formally recorded."
20 Thus, it may be seen that at least in New South Wales and Victoria appeals against conviction may be brought against jury verdicts in circumstances where those verdicts have been accepted by the Court, even though the Court has not formally recorded a conviction as having been entered. There is also at least one reported instance of an appeal against conviction having been entertained where that appeal had been lodged before sentence had been imposed - see R v De Marchi [1983] 1 VR 619.
21 The position with regard to an appeal to this Court is, however, different. Section 24(1)(b) of the Federal Court Act does not provide for any right to appeal from a conviction, still less from the verdict of a jury. It is only after the Supreme Court of the Australian Capital Territory has formally entered judgment upon that verdict, as for example, by recording a conviction, that there is a "judgment" which may give rise to an appeal.
22 It must be remembered that appeals are entirely creatures of statute. Close attention must be paid to the precise terms of the relevant statute creating the right to appeal. In Byrnes v R (1999) 164 ALR 520 Kirby J said at 543:
"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,… 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." (Footnote omitted)
23 Likewise, in Duff the Full Court said at 326:
"The statutory history of the jurisdiction in criminal appeals from the Supreme Court of the Australian Capital Territory is quite different from the statutory history of jurisdiction in criminal appeals in the Australian States or in England."
24 These observations are directly in point. The language of s 24(1)(b) of the Federal Court Act and the authorities to which we have referred led us on 11 May 2000 to conclude that the notice of appeal filed on 13 April 2000 should be dismissed as incompetent.
25 A necessary consequence of that finding was that the application for bail made by notice of motion dated 1 May 2000 had to be struck out for want of jurisdiction. Although the Court has power under O 52 r 35(3) to grant bail to an appellant pending appeal, an application for bail pursuant to that rule must be made by a person who has properly invoked the appellate jurisdiction of this Court. The appellate was not, at any relevant time, such a person.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Miles, Madgwick and Weinberg .