Lewis v Sergeant Riley

Principles of statutory construction

1. The judge approached the question of construction, consistently with the submissions presented on behalf of the first and second respondents, as depending upon an apparent repugnancy between the existence of the general right of appeal contained in the Local Court Act and the specific right of appeal granted under the Forensic Procedures Act. The specific power was held to prevail.
2. This approach was said to involve an application of the "Anthony Hordern principle", being a principle of statutory construction derived from the decision of the High Court in Anthony Hordern & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia. [1] That approach was erroneous for three reasons. First, the correct starting point in dealing with statutory provisions of the same legislature is not to assume inconsistency or repugnancy, but rather to assume that each provision can be given operation in accordance with its terms. Secondly, the need for reconciliation will not arise unless and until, on a careful construction of the legislative provisions, inconsistency is identified. Thirdly, although the District Court is not a superior court of record, the principle of interpretation identified in Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [2] has application, namely, that "[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words". A provision which confers a right of appeal has the dual function of conferring jurisdiction on the court to which the appeal may be brought.
3. It is convenient to set out the supposedly inconsistent provisions. First, there is the specific provision in the Forensic Procedures Act: 115A Appeals from forensic procedure orders made by Magistrate (1) An appeal against an order made by a Magistrate under this Act authorising the carrying out of a forensic procedure on a person may be made to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001 as if the order were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (2) An appeal against a Magistrate's refusal to make an order under this Act authorising the carrying out of a forensic procedure on a person may be made to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001 as if the refusal were an order dismissing a matter under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (3) The Crimes (Appeal and Review) Act 2001 applies to an appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.
4. The more general provision is to be found in s 70 of the Local Court Act, which states: 70 Appeals (1) In relation to any order arising from an application notice: (a) an application for annulment may be made in accordance with Part 2 of the Crimes (Appeal and Review) Act 2001, and (b) an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001, and (c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001, in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (2) An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order was made. (3) If any other Act: (a) provides for an appeal to the District Court against an order of the Court under that Act, or (b) provides for an appeal against such an order without identifying to which court such an appeal is to be made, such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (4) If any other Act provides for an appeal to the Supreme Court against an order of the Court under that Act, such an appeal is to be made to the Supreme Court in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (5) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. (6) In this section, a reference to an order includes a reference to any determination that the Court has jurisdiction to make, and any penalty that the Court has jurisdiction to impose.
5. A full understanding of the operation of s 70(1) requires reference to the specified Parts of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act") referred to in s 70. However, it is convenient first to note the location of s 70 in Pt 4 of the Local Court Act, headed "Special Jurisdiction". That jurisdiction is identified in s 44 in the following terms: 44 Application of Part This Part applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than: (a) criminal proceedings, or (b) proceedings with respect to any matter for which jurisdiction is conferred on the Court by Part 3. Section 43 defines "application proceedings" to mean "proceedings to which this Part applies as referred to in section 44." Such proceedings are commenced pursuant to s 45, which is the source of the term "application notice" in the chapeau to s 70(1). Section 45 provides: 45 Commencement of proceedings by application notice Application proceedings are to be commenced in the Court by the issuing and filing of an application notice in accordance with this Division.
6. Returning to s 44, although there are offences under the Forensic Procedures Act, the powers conferred by the Act to obtain samples and DNA swabs (amongst other procedures) do not involve the criminal jurisdiction of the Local Court. The reference to Pt 3 of the Local Court Act is a reference to the Court's civil jurisdiction. Accordingly, the jurisdiction under Pt 4 is properly characterised as neither "civil" nor "criminal", as those terms are used in the Local Court Act.
7. It is then necessary to note the nature of the appeal rights granted under s 70 by reference to the Appeal and Review Act. A right to seek an annulment under Pt 2 of the Appeal and Review Act is an application to the Local Court, in circumstances where the defendant did not appear when a conviction or sentence was imposed. [3] Although it may be a valuable procedure for a person wishing to set aside an order made on an application notice, it is not a standard form of appeal. Indeed, such an application would be inconsistent with any form of appeal as it involves challenging the existence of the order without reference to its merits, legal or factual.
8. An appeal to the District Court under Pt 3 of the Appeal and Review Act is a form of appeal "by way of rehearing", pursuant to s 17 or s 18 of the Appeal and Review Act. It has features of a de novo hearing, in which further evidence can be called. The procedure differs for appeals against sentence and appeals against conviction. The powers of the Court vary depending upon whether it is an appeal against conviction or sentence. [4]
9. Relevantly for present purposes, s 70(1) provides that the appeal is to be dealt with as if it were from a conviction in the summary criminal jurisdiction. There is no equivalent to either of these forms of application or appeal in the Forensic Procedures Act.
10. The third form of appeal, to the Supreme Court, is provided for both in s 70(1)(c) of the Local Court Act and in s 115A of the Forensic Procedures Act. Under s 115A(1), the appeal is stated to be under Pt 5 of the Appeal and Review Act, "as if the order were a sentence" arising in the summary criminal jurisdiction. Section 70(1) of the Local Court Act requires that each of the appeals, including that to the Supreme Court under Pt 5 of the Appeal and Review Act, is to be made in the same way as an appeal in relation to a conviction. There may therefore be an element of inconsistency between the nature of the appeals to the Supreme Court under s 115A and s 70(1)(c).
11. Arguments as to inconsistency fall broadly into two categories, namely (i) linguistic inconsistency and (ii) structural inconsistency. The point of distinction in relation to the bases of the appeals to the Supreme Court under s 115A and s 70(1)(c) involve linguistic inconsistency. In other words, the language is inconsistent in its terms. In such a case it is necessary to resolve the inconsistency by treating one provision as displacing the other. Where one provision has a particular and limited scope of operation and the other operates more generally, the more specific provision will usually prevail. Thus, to the extent that they are inconsistent, s 115A would provide the basis of an appeal to the Supreme Court under Pt 5 of the Appeal and Review Act.
12. This variation in language is, however, of little consequence. The conferral of rights of appeal and appeals requiring leave, to be found in ss 52 and 53 of the Appeal and Review Act, each speak of both conviction and sentence. The only relevant difference derives from the powers of the Supreme Court in determining an appeal against conviction, as opposed to an appeal against sentence. Thus, s 55(2) of the Appeal and Review Act provides that the Court may determine an appeal against sentence by varying the sentence; this is not a power given with respect to an appeal against conviction, which must be determined either by setting aside the conviction or dismissing the appeal, or by setting aside the conviction and remitting the matter to the Local Court. [5] (Similar powers exist with respect to sentence appeals under s 55(2).)
13. The respondents cannot rely upon linguistic inconsistency to deprive the applicants of a right to appeal to the District Court pursuant to s 70(1)(b). Rather, they must imply from the conferral of a right of appeal to the Supreme Court under the Forensic Procedures Act an intention for that to be the exclusive right of appeal, so as to remove the operation of s 70(1)(b). Why s 115A is said to have that effect was obscure. This is not a case in which there is a general power and a specific power, the latter being subject to conditions which do not apply to the general power. In that case, it may readily be inferred that where the specific power is available, but the conditions are not satisfied, the general power cannot be relied upon. No such inference arises with respect to rights of appeal. Indeed, the contrary is so, both historically and in the specific statutory context of the Local Court.
14. Section 70 itself envisages three separate ways in which an order made on an application in the special jurisdiction may be challenged. That scheme reflects explicitly the scheme for appeals in the summary criminal jurisdiction under the Appeal and Review Act. Nor was the structure of appeals under the Appeal and Review Act novel in 2001. Prior to a series of amendments which commenced in 1998, the Justices Act 1902 (NSW) provided for an appeal by way of stated case to the Supreme Court (s 101), a form of statutory prohibition in the Supreme Court (s 112) and what used to be called an "all grounds" appeal as of right to the District Court (s 122). That tripartite scheme had been in place since 1902. In its modern form, the structure of dual appeals to the District Court and the Supreme Court is repeated in the Appeal and Review Act. That structure has been expressly adopted with respect to orders made in the special jurisdiction of the Local Court by s 70 of the Local Court Act. It would require words of clear intendment to deprive a person seeking to appeal to the District Court from an order made in the special jurisdiction of the Local Court of that expressly conferred statutory right of appeal.
15. Section 115A of the Forensic Procedures Act may be understood to supersede or displace the appeal to the Supreme Court under s 70(1)(c), to the extent of the express linguistic inconsistency. Otherwise, s 115A contains no indication that the right of appeal to the District Court otherwise conferred by s 70(1)(b) is to be impliedly repealed.
16. Further, s 70 itself envisages the possibility that a right conferred under subs (1) may be "prohibited by the Act or law pursuant to which the order was made." In such a case, the right conferred by subs (1) is, to that extent, withdrawn. Section 115A includes no such prohibition. It is possible that a prohibition may be implied from the structure or subject matter of other provisions in the other Act, but that could only occur by necessary implication; no such necessary implication arises from s 115A, nor from any other part of the Forensic Procedures Act.
17. Section 115A of the Forensic Procedures Act has two clear purposes. First, as already noted, it treats an order made under the Act as if it were a "sentence" and not "a conviction". Secondly, it confers a right of appeal against the refusal by a magistrate to make an order: s 115A(2). It may have been thought that s 70 did not cover the refusal to make an order.
18. None of this reasoning is inconsistent with what was said in Anthony Hordern, which was usefully explained by Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom. [6] Nystrom concerned a claim that where the Minister enjoyed two powers under the Migration Act 1958 (Cth) to remove a person from Australia, and where one power had been held not to be available, the Minister could not rely upon the other. Gleeson CJ explained the basis or reason for such an implied constraint: "If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. [7] Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. [8] … [N]either proposition can be made good when regard is had to the legislative history and context." [9]
19. Where there are separate bases for challenging a decision of a magistrate, it will usually be necessary for an appellant to elect between them. So much has been understood since, for example, Wishart v Fraser. [10] However, far from demonstrating some form of structural inconsistency arising from the existence of separate rights of appeal, that analysis confirms the common place existence of separate rights of appeal and the need to regulate their independent operation. Analogous issues arise in relation to concurrent statutory rights of appeal and the inherent (albeit now statutory) supervisory jurisdiction of this Court.

Conclusion

1. The District Court judge concluded that s 115A of the Forensic Procedures Act provided an exclusive code for appeals against orders made under that Act, thus depriving the District Court of jurisdiction to hear an appeal from such an order pursuant to s 70(1)(b) of the Local Court Act. The refusal to exercise jurisdiction was erroneous and the decision should be set aside. Accordingly, the appeals to the District Court not having been determined, those appeals remain on foot and must be determined according to law.
2. This Court should make the following orders: 1. Extend time for the filing of the summons seeking to review the decision of the District Court of 13 September 2016 up to and including 23 May 2017. 2. Set aside the decision of the District Court holding that that Court had no jurisdiction to consider an appeal from an order made in the Local Court pursuant to s 75L of the Crimes (Forensic Procedures) Act 2000 (NSW). 3. Declare that the District Court has jurisdiction to determine the appeals pursuant to s 70(1)(b) of the Local Court Act 2007 (NSW).
3. WHITE JA: I have had the advantage of reading the judgments of Basten JA and Fagan J in draft. Subject to my comments below in relation to appeals to the Supreme Court against an order made by a Magistrate authorising the carrying out of a forensic procedure, I agree generally with their reasons. I agree with the declaration and orders proposed by Basten JA. Because we are differing from the learned primary judge I will briefly state my reasons in my own words.
4. The essential question is whether Parliament is to be taken to have intended that the rights of appeal conferred by s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) ("Forensic Procedures Act") should be the exclusive avenue for appeal, thus impliedly negating at least the rights of appeal that would otherwise arise under s 70(1)(b) and (c) of the Local Court Act 2007 (NSW) ("Local Court Act 2007"). As Basten JA explains, (at [5]), to so conclude would be inconsistent with seeking to make legislative provisions work harmoniously and with the approach to be taken to the construction of statutory provisions conferring jurisdiction. In my view, any doubts about the issue are resolved by a consideration of the legislative history of the provisions.
5. The primary judge noted that s 115A was inserted in the Forensic Procedures Act by the same legislation that enacted the appeal provisions that became s 64 of the Local Courts Act 1982 ("the Local Courts Act 1982") and are now enacted in s 70 of the Local Court Act 2007. The primary judge quoted and accepted the respondent's submission that: "Section 64 of the Local Courts Act 1982, the predecessor to s 70 was thus enacted by the same act as introduced s 115A of the Crimes (Forensic Procedures) Act. There is no suggestion in either the second reading speech or the explanatory memorandum for the Justices Legislation Repeal and Amendment Act that the legislator intended by its enactment to provide an additional appeal in relation to orders under the Crimes (Forensic Procedures) Act."
6. It does not appear whether his Honour was referred to s 36(2) of the Local Courts Act 1982 that was enacted by the same legislation, viz. the Justices Legislation Repeal and Amendment Act 2001 (NSW).
7. That Act amended the Local Courts Act 1982 in various ways including by inserting a new Pt 6 into that Act. Section 64 was in Pt 6. Section 36 was also in Pt 6. It provided (as at the time of its introduction): "36 Proceedings to which Part does not apply (1) This Part does not apply to the following proceedings: (a) proceedings for a summary or indictable offence, (b) orders that may be made in, or as a result of, criminal proceedings, (c) any matter for which jurisdiction is conferred on a Local Court under the Local Courts (Civil Claims) Act 1970 or Part 15A of the Crimes Act 1900. (2) To avoid doubt, and despite subsection (1)(b), this Part applies to the following proceedings: (a) applications for orders under the Crimes (Forensic Procedures) Act 2000, (b) proceedings for the purposes of Part 2 of Chapter 7 of the Criminal Procedure Act 1986."
8. Section 36(2)(a) provided in terms that Pt 6, which included the appeal provisions in s 64, applied to applications for a forensic procedure order. Section 64(1)(c) of the Local Courts Act 1982 and s 115A(1) of the Forensic Procedures Act were in materially the same terms in providing for an appeal to the Supreme Court. From this it might have been arguable that s 115A provided the exclusive avenue of appeal against an order by a Magistrate authorising the carrying out of a forensic procedure, because otherwise s 115A(1) was otiose. But that argument is rebutted by s 36(2)(a) of the Local Courts Act 1982.
9. When the Local Courts Act 1982 was replaced by the Local Court Act 2007 the appeal provisions then contained in s 64 of the Local Courts Act 1982 were replicated in s 70 of the Local Court Act 2007. There is no reason to conclude that s 70 was intended to have a narrower application than s 64.
10. The primary judge did not consider that s 115A of the Forensic Procedures Act and s 70(1)(c) of the Local Court Act 2002 could live harmoniously. That was an important factor in his Honour's consideration that s 115A provided the exclusive avenue of appeal from a forensic procedure order. The amendments to s 64 of the Local Courts Act 1982 on 29 March 2009 to substitute "sentence" for "conviction" (see per Fagan J at [71]) produced a clear inconsistency between s 115A(1) of the Forensic Procedures Act and what is now s 70(1)(c) of the Local Court Act 2007, in that under the former, an appeal to the Supreme Court may be made as if the order were a sentence arising from a court attendance notice dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW), whereas under the latter, the appeal lies in the same way as an appeal may be made in relation to a conviction arising from such a court attendance notice.
11. Counsel for the applicants submitted that that inconsistency is resolved by s 70(4) of the Local Court Act. Whereas, prima facie, s 115A(1) is a more specific provision that should prevail over s 70(1)(c) of the Local Court Act 2007, counsel for the applicants argued that s 70(4) is a yet more specific provision that addresses such inconsistency by specifically providing that if another Act provides for an appeal to the Supreme Court, the appeal is to be made in the same way as an appeal under Pt 5 of the Crimes (Appeal and Review) Act 2007 (NSW) may be made in relation to a conviction.
12. Fagan J is of the opinion that it is necessary to decide this question (at [52]). In my view it is not necessary to decide the question. Irrespective of the nature of the appeal to the Supreme Court, s 115A does not impliedly exclude the right of appeal to the District Court under s 70(1)(b) of the Local Court Act 2007.
13. That is not to say that I disagree with the view of Fagan J at [59]. I think there is much to be said for the view that s 70(4) applies only where the other Act (that provides for an appeal to the Supreme Court against an order of the Local Court in respect of a matter to which Pt 4 of the Local Court Act 2007 applies) makes no express provision as to the nature of the appeal. It is entirely sensible that on an appeal to the Supreme Court, the Court should have the power to vary the forensic procedure order, a power which would not be available if the appeal were an appeal in respect of a conviction. But I do not find it necessary to decide this question to conclude that the right of appeal to the District Court under s 70(1)(b) of the Local Court Act 2007 is not impliedly excluded by s 115A of the Forensic Procedures Act.
14. For these reasons I agree with the orders proposed by Basten JA.
15. FAGAN J: By summons filed 23 May 2017 the applicants seek orders pursuant to s 69 of the Supreme Court Act 1970 quashing a decision of Pickering DCJ that the District Court lacks jurisdiction to hear appeals from orders made in the Local Court pursuant to s 75L of the Crimes (Forensic Procedures) Act 2001 ("the Forensic Procedures Act"). That is, orders for the taking of forensic tissue samples from the applicants, they being "untested former offenders" within the meaning of s 75L. Further orders are sought requiring that the District Court hear and determine the applicants' appeals.
16. The first and second respondents to the summons are the police officers who applied for and obtained the s 75L orders. The third respondent is the District Court. The applicants' summons for relief under s 69 of the Supreme Court Act is the appropriate means of having the District Court's decision regarding lack of jurisdiction reviewed.
17. The s 75L orders were made against the first applicant on 28 May 2015 and against the second applicant on 19 May 2016. On 13 September 2016 Pickering DCJ found no jurisdiction in the District Court to entertain the appeals and ordered that they be removed from the list. The basis of this decision was that the applicants' sole avenue of appeal from an order made under s 75L of the Forensic Procedures Act is to the Supreme Court under s 115A of that Act and that there is no alternative appeal to the District Court under s 70(1)(b) of the Local Court Act 2007. The issue in this Court is whether that is correct as a matter of statutory interpretation.

The sections which provide for appeals

1. Section 115A of the Forensic Procedures Act has been reproduced in full by Basten JA at [6]. It is relevant to the reconciliation of the provisions under consideration in this appeal that an appeal to the Supreme Court "against an order", as provided for in subs (1), is to be made "as if the order were a sentence" whereas an appeal "against a Magistrate's refusal to make an order", as provided for in subs (2), is to be made "as if the refusal were an order dismissing" a charge (emphasis added).
2. With one immaterial exception (concerning the change of name of the Crimes (Appeal and Review) Act 2001) s 115A has been in the same terms since it was inserted into the Forensic Procedures Act, with effect from 7 July 2003, by the Justices Legislation Repeal and Amendment Act 2001 (NSW) ("the Justices Repeal Act").
3. It is common ground (and clearly correct) that the orders affecting the applicant under s 75L of the Forensic Procedures Act were made in proceedings to which Pt 4 of the Local Court Act 2007 (ss 43 - 72) applies. That is, as stipulated in s 44, they were not criminal proceedings (defined in s 3 of the Local Court Act 2007 in such a way as to exclude, expressly, applications under the Forensic Procedures Act); nor were they civil proceedings within the jurisdiction conferred by Pt 3 of the Local Court Act 2007.
4. Proceedings to which Pt 4 of the Local Court Act 2007 applies are defined in s 43 as "application proceedings". They are commenced by the filing of an "application notice": s 45.
5. The applicants argued before Pickering DCJ and in this Court that the appeal provision in Pt 4 of the Local Court Act 2007, s 70, is applicable in respect of the orders made against them under s 75L of the Forensic Procedures Act. If correct this would provide the applicants with an appeal to the District Court in addition to the Supreme Court appeal available to them under s 115A of the Forensic Procedures Act. Section 70 is reproduced in full by Basten JA at [7].
6. Throughout the period in which the Local Court Act 2007 has been in force, from 6 July 2009, s 70 has been in the same terms. Notably for present purposes, an application or appeal under any of the alternative avenues provided for in subs (1) of s 70 is to be made "in the same way as such an application or appeal may be made in relation to a conviction" (emphasis added).

Avenues and grounds of appeal referred to in s 115A and s 70

1. In order to understand the relationship between s 115A of the Forensic Procedures Act and s 70 of the Local Court Act 2007 it is necessary to note the provisions for appeals against sentence and/or conviction to which the two sections refer. That is, provisions of the Crimes (Appeal and Review) Act 2001. Relevant sections of that Act are extracted below, so far as necessary for present purposes. The sections were in this form when s 115A of the Forensic Procedures Act came into effect on 7 July 2003 and they have remained relevantly unamended since.
2. Both s 115A of the Forensic Procedures Act and s 70(1)(c) and s 70(4) of the Local Court Act 2007 refer to Pt 5 of the Crimes (Appeal and Review) Act 2001, entitled "Appeals from Local Court to Supreme Court". Part 5 includes these sections: Division 1 Appeals by defendants Subdivision 1 Making of appeals 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. … 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. ... Subdivision 2 Determination of appeals … 55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. Division 2 Appeals by prosecutors Subdivision 1 Making of appeals 56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by the Local Court in any summary proceedings, or … (c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or … … , but only on a ground that involves a question of law alone. Subdivision 2 Determination of appeals … 59 Determination of appeals (1) The Supreme Court may determine [a prosecutor's] appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (2) The Supreme Court may determine [a prosecutor's] appeal against an order referred to in section 56 (1) … (c) ["an order made by the Local Court dismissing a matter the subject of any summary proceedings"] … : (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal.
3. In summary the Crimes (Appeal and Review) Act 2001 provides for an appeal from the Local Court to the Supreme Court 1. against sentence by either the defendant or the prosecutor 1. as of right on a ground that involves a question of law alone and, by the defendant only, by leave on a question of fact or mixed law and fact; 2. with power in the Supreme Court to set aside, vary or uphold the sentence and 1. against conviction (by the defendant) or dismissal (by the prosecutor) 1. as of right on a ground which involves a question of law alone and, by the defendant only, by leave on a question of fact or mixed law and fact; 2. with power in the Supreme Court 1. on a defendant's appeal against conviction, to uphold the conviction or to set it aside, with or without remitter to the Local Court for redetermination of guilt and 2. on a prosecutor's appeal against dismissal, to uphold the dismissal or to set it aside, in the latter case with such other order as the court thinks fit.
4. Section 70(1)(a) of the Local Court Act 2007 refers to Pt 2 of the Crimes (Appeal and Review) Act 2001, which empowers the Local Court to annul convictions or sentences, upon the application of the prosecutor or, if the defendant did not appear on the hearing, upon the application of the defendant. For the purposes of the matter now to be decided it is not necessary to say more about this form of review of Local Court decisions.
5. Section 70(1)(b) of the Local Court Act 2007 refers to Pt 3 of the Crimes (Appeal and Review) Act 2001, which contains the following provisions concerning appeals to the District Court. Provisions not relevant to the present facts (for example restrictions on the right of appeal where the defendant was not present at the hearing, time limits for instituting appeals and the like) have been omitted. Part 3 Appeals from Local Court to District Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 11 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). … Subdivision 2 Determination of appeals … 17 Appeals against sentence to be by way of rehearing of evidence An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings. 18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. ... 19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied: (a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. ... 20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12(1) [where the conviction followed a plea of guilty or a hearing from which the appellant was absent] - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. … Division 2 Appeals by prosecutors Subdivision 1 Making of appeals 23 Appeals as of right (1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by the Local Court in any of the following proceedings: … (b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986), (c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions. … Subdivision 2 Determination of appeals 26 Appeals against sentence to be by way of rehearing of evidence (1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances. 27 Determination of appeals (1) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. ...

No conflict of text or purpose between s 115A and s 70

1. On the face of the two sections there is no inherent inconsistency between the provision in s 115A(1) for an appeal to the Supreme Court by a person against whom a Forensic Procedures Act order has been made and the conferral by s 70(1)(b) of a right of appeal to the District Court. There is no explicit language in either section indicating that one of these rights of appeal is intended to be exclusive of the other as opposed to them being concurrent alternatives. Nor is there anything in the Forensic Procedures Act which implicitly manifests an intention that one of these forms of appeal should be exclusive with respect to orders under that Act. I am not able to discern that Parliament intended there to be served by either avenue of appeal (to the District Court under s 70(1)(b) or to the Supreme Court under s 115A) some purpose which would be defeated if the other should also be available.
2. Before examining the legislative history of the provisions, to substantiate that there is no implicit exclusion of a s 70(1)(b) appeal to the District Court for persons affected by Forensic Procedures Act orders, I consider it necessary to reconcile the two sections so far as they both provide for appeals to the Supreme Court.

The provision for Supreme Court appeals in both s 115A and s 70(1)(c)

1. The summary at [48] of the provisions in Pt 5 of the Crimes (Appeal and Review) Act 2001 shows that if a magistrate makes an order under s 75L of the Forensic Procedures Act, the right of appeal which s 115A(1) of that Act confers on the affected person (in this case, each of the applicants) is an appeal to the Supreme Court as of right on a ground that involves a question of law alone and by leave on a ground that involves a question of fact or of mixed law and fact. The avenue of appeal under subs (1) exists, at least primarily, for the benefit of the person on whom a forensic procedure is to be carried out.
2. It may be that an order under s 75L of the Forensic Procedures Act could be made in terms or upon conditions unsatisfactory to the police officer who applied for it. It is possible that s 115A(1) also confers upon the police officer in that situation an appeal to the Supreme Court - which would be as of right on a ground that involves a question of law alone, just as a prosecutor would have such a right under s 56 of the Crimes (Appeal and Review) Act 2001 (quoted at [47] above). For the purposes of deciding the matter presently before this Court it is not necessary to consider further the possibility of an appeal by a police officer under subs (1) of s 115A.
3. Section 70(1)(c) of the Local Court Act 2007 in part duplicates the operation of s 115A(1) of the Forensic Procedures Act. An application for an order under s 75L of the Forensic Procedures Act, being an "application proceeding" is governed by Pt 6 of the Local Court Act 2007 and any order made would, prima facie, engage s 70(1)(c) under which the affected person could appeal to the Supreme Court as if against conviction. That is, the affected person would have an appeal as of right on a ground that involves a question of law and by leave on a ground involving a question of fact or of mixed law and fact.
4. In terms of who may appeal and on what grounds, the s 70(1)(c) appeal to the Supreme Court as if from a conviction is no different from the avenue under s 115A(1) of the Forensic Procedures Act "as if the order were a sentence". The only distinction between sentence appeals and conviction appeals to the Supreme Court is with respect to the orders the court may make, as provided for in ss 55 and 59 of the Crimes (Appeal and Review) Act 2001, quoted and considered above at [47] and [48]. The difference is that in defendants' sentence appeals the Supreme Court may vary the sentence. The absence of an equivalent power in relation to conviction appeals is inherent in the difference between a conviction and a sentence. One cannot "vary" a conviction.
5. This distinction between the powers of the Supreme Court when disposing of a defendant's sentence appeal on the one hand or a defendant's conviction appeal on the other appears highly unlikely to give rise to any practical difference, from the point of view of a person affected by a s 75L order, as between a Supreme Court appeal under s 115A(1) ("as if" it were a sentence appeal) and such an appeal under s 70(1)(c) ("in the same way as … an … appeal may be made in relation to a conviction"). First, it is not clear as a matter of statutory interpretation that the Supreme Court's power to vary a sentence is transmuted into a power to vary a Forensic Procedures Act order when the right of appeal is exercised in relation to such an order "as if" it were appeal against sentence. Secondly, it is not self-evident whether or in what circumstances a person subject to a Forensic Procedures Act order would ever want it varied as opposed to set aside. It follows from these two considerations that it is not clear Parliament regarded variation of Forensic Procedures Act orders by the Supreme Court on appeal a matter of any significance, of which it must have intended the affected person should have the benefit.
6. In short, the possibility of there being a practical difference in operation between s 115A(1) and s 70(1)(c) and of the two subsections having been intended to create that difference is so elusive as to provide no useful guide in discerning Parliament's intention regarding which provision should prevail in relation to Supreme Court appeals from Forensic Procedures Act orders.
7. Subsection (4) of s 70 does not assist. It is in terms apt to prescribe the characteristics of an appeal to the Supreme Court (that is, who may bring the appeal, upon what grounds and what orders may be made) for situations where another Act provides for such an appeal but is silent as to its characteristics. Subsection (4) thus has a role to perform without ascribing to it the effect of prevailing over any specification of the attributes of a Supreme Court appeal in cases where those are spelt out in another Act, as in the case of s 115A of the Forensic Procedures Act. In the absence of an express statement in subs (4) that it should prevail, as to the type and attributes of an appeal to the Supreme Court, over specific stipulation in another Act, there is no reason to ascribe that effect.
8. The difference between the first two subsections of s 115A does not indicate that, in the context of the Acts under consideration here, the legislature has attached significance to the distinction between the powers of the Supreme Court in disposing of sentence and conviction appeals, respectively. The differences between the two subsections of s 115A are fully explained by the legislature's intention that the grounds of appeal available under subs (1) to a person affected by an order should include questions of fact or of mixed law and fact (by leave) whereas a police officer appealing under subs (2) against refusal of an order should be confined to grounds involving questions of law alone. A further explanation of the legislature's intention in differentiating subss (1) and (2) of s 115A is that subs (2) enables a police officer on appeal to obtain such order as the Supreme Court sees fit in place of the magistrate's dismissal of the application. This is provided for in s 59(2) of the Crimes (Appeal and Review) Act 2001 (quoted at [47]). Thus the police officer would be able to obtain in the Supreme Court, on appeal, the order which had been sought in the Local Court but refused, without the proceedings having to be remitted.

Legislative history

1. From the considerations canvassed at [53] - [60] I cannot identify anything in the text of the sections, in the context of surrounding provisions or in any legislative purpose, which would indicate which of s 115A(1) of the Forensic Procedures Act and s 70(1)(c) of the Local Court Act 2007 is to prevail in relation to appeals to the Supreme Court by persons affected by Forensic Procedures Act orders. Consideration of the legislative history resolves this question in favour of s 115A(1). That history also leads to the conclusion that the avenue of appeal to the Supreme Court provided for in s 115A is not exclusive but co-exists with the alternative of an appeal to the District Court provided for by s 70(1)(b) of the Local Court Act 2007.
2. Prior to the commencement of the Forensic Provisions Act on 1 January 2001 Local Courts had been established under the Local Courts Act 1982 (NSW) (since repealed). Each Local Court (at a proclaimed place and for a defined district) was constituted by a magistrate appointed under that Act. The exercise of the Local Court's jurisdiction, both criminal and civil, was governed by the Justices Act 1902 (also subsequently repealed). The Justices Act 1902 contained Pt 4A (enabling Local Courts to review their own decisions upon application for annulment), Pt 5 (comprising ss 102 - 114, providing for appeals to the Supreme Court) and Pt 5A (providing for appeals to the District Court).
3. Section 104 of the Justices Act 1902, within Pt 5, listed limited categories of orders against which and grounds upon which defendants, informants (that is, prosecutors) and parties to civil proceedings could appeal to the Supreme Court from decisions of the Local Court. By a schedule to the Forensic Provisions Act an amendment to the appeal provisions of the Justices Act was made, taking effect from the commencement of the Forensic Provisions Act itself on 1 January 2001. Namely, there was added to s 104 of the Justices Act subs (6) which provided for an appeal to the Supreme Court on any ground that involved a question of law alone against an order made by a magistrate under the Forensic Provisions Act or against a magistrate's refusal to make such an order.
4. Subsection (6) of s 104 of the Justices Act 1902 was the predecessor of s 115A of the Forensic Procedures Act. It was in these terms: 104 When an appeal can be made by a defendant or other person … (6) Appeals concerning orders under the Crimes (Forensic Procedures) Act 2000 An appeal under this Division on a ground that involves a question of law alone may be made to the Supreme Court: (a) against an order (other than an interim order) made by a Magistrate under the Crimes (Forensic Procedures) Act 2000 authorising the carrying out of a forensic procedure on a person, or (b) against the refusal of a Magistrate to make such an order.
5. With effect from 7 July 2003 the Justices Act 1902 was repealed by the Justices Repeal Act (see [41]). The following legislative changes, so far as relevant for present purposes, also took effect from 7 July 2003: 1. Section 115A was inserted in the Forensic Provisions Act (by a schedule to the Justices Repeal Act), replacing s 104(6) of the Justices Act. 2. The Crimes (Appeal and Review) Act commenced (under its original name, the Crimes (Local Courts Appeal and Review) Act 2001). This contained Pt 2 entitled "Local Court Review of Local Court decisions" (dealing with annulment), Pt 3 entitled "Appeals from Local Court to District Court" and Pt 5 entitled "Appeals from Local Court to Supreme Court". These parts replaced the corresponding Pts 4, 5 and 5A of the Justices Act (see [51]). 3. The Local Courts Act 1982 was amended by insertion of Pt 6 (sections 33 - 64) governing application proceedings. Section 36(2)(a) explicitly stated that Pt 6 "applies to … applications for orders under the Crimes (Forensic Procedures) Act 2000". Section 64 provided for appeals from orders of magistrates arising from application notices, including to the Supreme Court and to the District Court.
6. Section 64 of the Local Courts Act 1982, introduced with effect from 7 July 2003, was in terms identical to the current s 70 of the Local Court Act 2007 (reproduced by Basten JA at [7]), except that the word "sentence" was used instead of "conviction" in subss (1) and (3) of s 64, corresponding with the current subss (1) and (4) of s 70. (Generally, the provisions of Pt 6 the Local Courts Act 1982 were identical to the later enacted provisions of Pt 4 (sections 43 - 70) of the Local Court Act 2007, which replaced the Local Courts Act 1982 from 6 July 2009).
7. Section 64 of the Local Courts Act 1982 as originally enacted was as follows, subs (1A) having been inserted by Act No 40 of 2003 before commencement (emphasis added to the word "sentence" in subs (1) and (3)): 64 Appeals (1) In relation to any order arising from an application notice under this Part: (a) an application for annulment may be made in accordance with Part 2 of the Crimes (Local Courts Appeal and Review) Act 2001, and (b) an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001, and (c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001, in the same way as such an application or appeal may be made in relation to a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (2) If any other Act: (a) provides for an appeal to the District Court against an order of a Magistrate or Justice under that Act, or (b) provides for an appeal against such an order without identifying to which court such an appeal is to be made, such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (3) If any other Act provides for an appeal to the Supreme Court against an order of a Magistrate or Justice under that Act, such an appeal is to be made to the Supreme Court in accordance with Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (4) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.
8. I conclude that the enactment of the suite of provisions listed at [65] - [67], all taking effect from 7 July 2003, shows that Parliament intended 1. s 115A of the Forensic Procedures Act should be the operative provision for appeals to the Supreme Court from magistrates' decisions on applications under that Act, rather than s 64 of the Local Courts Act 1982 and 2. s 64 of the Local Courts Act 1982 should also operate so far as not inconsistent with s 115A, which would include that s 64 should provide for appeals to the District Court (of which s 115A makes no mention).
9. As to 68, the first indication that s 115A was intended to prevail in relation to Supreme Court appeals is that otherwise there would have been no need to enact subs (1) of s 115A. Section 36(2)(a) of the Local Courts Act 1982 engaged s 64 with respect to orders made under the Forensic Procedures Act and subs (1)(c) of s 64 provided for an appeal to the Supreme Court as if the making of the order was the passing of sentence - precisely the same ground covered by s 115A(1). The second indication comes from subs (2) of s 115A. This conferred a right of appeal on a police officer against a magistrate's refusal to make an order, an avenue of appeal not provided for in s 64 of the Local Courts Act 1982 at all - at least, not expressly or by clear implication. Both of these indications show that so far as recourse to the Supreme Court was to be available from Local Court decisions under the Forensic Procedures Act, s 115A as a whole was tailored specifically to the requirements of that Act.
10. As to 68, by s 36(2)(a) of the Local Courts Act 1982 Parliament expressly made Pt 6, which includes the avenues of appeal provided for in s 64, applicable to magistrates' decisions under the Forensic Procedures Act. There would be a conflict between s 64 (which in subs (1)(b) includes a right of appeal to the District Court) and s 115A (providing only for appeal to the Supreme Court) if the latter were intended to prescribe the exclusive avenue of appeal. It is not to be imputed to the legislature that it intended to create such an unexpressed conflict between provisions enacted to take effect at precisely the same time: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70], [71]. By recognising that s 115A(1) prevails as to Supreme Court appeals and that District Court appeals are additionally available under s 70(1)(b), the requirements of giving effect to all words of the respective provisions as far as possible and allowing harmonious operation of the two statutes (with respect to appeals) are satisfied.
11. Section 64 of the Local Courts Act 1982 was amended with effect from 29 March 2009 by substitution of the word "conviction" for "sentence" in subss (1) and (3). At that date the Local Court Act 2007 had been assented to but had not yet come into force. The same amendment was made to subss (1) and (4) of s 70 of the Local Court Act 2007 so that when it commenced, from 6 July 2009, s 70 was in the terms reproduced by Basten JA at [7]. It has already been mentioned that the only effect of this change, so far as appeals to the Supreme Court are concerned, is with respect to the manner in which the Supreme Court may deal with an appeal (see [56] - [58]).
12. So far as appeals to the District Court are concerned, the effect of the change is that under s 17 of the Crimes (Appeal and Review) Act 2001 (reproduced at [50]) an appeal against sentence is a de novo hearing on the evidence given in the Local Court plus any fresh evidence; whereas an appeal against conviction is determined on the evidence taken in the Local Court with fresh evidence being received only by leave (see s 18 of the Crimes (Appeal and Review) Act 2001, also extracted at [50]). A report which was before Parliament when s 64 of the Local Courts Act 1982 and s 70 of the Local Court Act 2007 were amended referred to this difference. It appears the intention was to narrow the scope of the hearing of an appeal to the District Court.
13. There is no express indication and no implication arises that by making this amendment to s 64 of the Local Courts Act 1982 and to s 70 of the Local Court Act 2007 it was intended (a) to disturb the pre-eminence of s 115A of the Forensic Procedures Act with respect to appeals from decisions of magistrates under that Act to the Supreme Court or (b) to alter the coexistence of the alternative right appeal from such decisions to the District Court under s 70(1)(c) of the Local Court Act 2007.

The Anthony Hordern principle

1. The respondents argued that s 115A of the Forensic Procedures Act confers a right of appeal in specific terms, with recourse limited to the Supreme Court, and that this must be taken to exclude the more general provision for appeals in s 70 of the Local Court Act 2007, upon the principle of construction applied in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia. In that case Gavan Duffy CJ and Dixon J expressed the principle in these terms (at 7): When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
2. The principle has frequently been applied, for example in Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123 at [50] - [52]. I do not consider that it has any application to the present case. Section 115A of the Forensic Procedures Act does not, in so many words or by necessary intendment, prescribe that any appeal from a Local Court decision under the Act shall be brought in accordance with its terms. Rather, it provides that appeals to the Supreme Court are available and it prescribes the constraints which shall apply to them.
3. Understood in this way, s 115A is not a narrowing and restricting provision which must prevail, pursuant to the Anthony Hordern principle, over the broader conferral of a range of appeal rights under s 70 of the Local Court Act 2007. The respondents ask the Court to read s 115A as making the only provision intended by the legislature within the entire field of possible avenues of appeal. Such a reading is the premise of their argument for application of the principle. But to reach this premise the respondents beg the entire question of construction of s 115A. They would have the Court assume as a step in the argument that which they seek to prove.
4. The Anthony Hordern principle has a limited application in the circumstances of this case. So far as appeals from Forensic Procedures Act orders to the Supreme Court are concerned, s 115A makes a more specific and tailored provision for the purposes of that Act than s 70(1)(c). The principle thus supports the conclusion expressed at [61] and [68] - [69] that s 115A is the governing provision for Supreme Court appeals.

Orders

1. For these reasons I would join in making the orders proposed by Basten JA at [24]. There need not be made any order for costs because the parties agreed that whatever the outcome they would bear their own.

Endnotes

1. (1932) 47 CLR 1; [1932] HCA 9.
2. (1994) 181 CLR 404 at 421; [1994] HCA 54.
3. Appeal and Review Act, s 4(1A).
4. Appeal and Review Act, s 20.
5. Appeal and Review Act, s 55(1).
6. (2006) 228 CLR 566; [2006] HCA 50 at [2].
7. Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5.
8. Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [No 2] (1980) 44 FLR 455 at 468-469; 29 ALR 333 at 347.
9. See also [47]-[59] (Gummow and Hayne JJ) and [165] (Heydon and Crennan JJ).
10. (1941) 64 CLR 470; [1941] HCA 8.

Amendments 02 August 2018 - [74]: quotation amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2018