May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15

Authorised Report:(2022) 17 ACTLR 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia

Citation: [2022] ACTCA 15

Hearing Date: 18 February 2022

Decision Date: 30 March 2022

Before: Mossop and Thawley JJ, McWilliam AJ

Decision: See [111]

Catchwords: PRACTICE AND PROCEDURE – APPEAL – Competency of Crown appeal to the Court of Appeal pursuant to s 37E of the Supreme Court Act 1933 (ACT) – appeal against acquittal in the Supreme Court following acquittal in the Magistrates Court – Magistrates Court Act 1930 (ACT) s 219B(1)(a) specifically provides for prosecution appeals against acquittal – consideration of the principle from Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 – no reason to read down general appeal provision in s 37E in light of the provision for prosecution appeals to the Supreme Court in the Magistrates Court Act – appeal competent PRACTICE AND PROCEDURE – APPEAL – Competency of Crown appeal to the Court of Appeal pursuant to s 37E of the Supreme Court Act 1933 (ACT) – appeal against quashing of conviction and dismissal of charge on respondent’s appeal from conviction – consideration of the principle from Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 – no reason to read down general appeal provision in s 37E where the respondent initiated the appellate chain – appeal competent

Legislation Cited: Constitution (Cth), s 73 Court of Petty Sessions Act 1972 (ACT) Criminal Appeal Act 1907 (UK) Federal Court of Australia Act 1976 (Cth), s 24 Justices Act 1958 (Vic) Magistrates Court Act 1930 (ACT), Pts 3.6, 3.7, ss 108A, 207, 208, 219B, 219D, 219F Supreme Court Act 1933 (ACT), ss 37E, 37O Work Health and Safety Act 2011 (Cth), s 32

Cases Cited: Benson v Northern Ireland Road Transport Board [1942] AC 520 Dahlstrom v Low (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 July 1996) Davern v Messel (1984) 155 CLR 21 Federation Insurance Limited v Wasson (1987) 163 CLR 303 Fitzgerald v Kennard (1995) 38 NSWLR 184 Hatty v Pilkinton (1991) 28 FCR 352 Mark v Henshaw (1998) 85 FCR 555 Martin v Purnell [1999] FCA 872; 93 FCR 181 May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116 Moroney v Wojcicka [2003] ACTCA 15; 143 A Crim R 1 Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595 Priest v Cook (Unreported, Supreme Court of the Australian Capital Territory, Kelly J, 22 September 1982) R v Bertrand (1867) LR 1 PC 520 R v Chairman and Justices of the County of Tyrone (1906) 40 ILT 181 R v Snow (1915) 20 CLR 315 R v Wilkes (1948) 77 CLR 511 R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204 Riley v Seip [2006] ACTCA 5; 45 MVR 128 Saunders v the King (Unreported, Supreme Court of the Australian Capital Territory, Blackburn J, 16 September 1974) Taylor v Armour & Co Pty Ltd [1962] VR 346 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547

Texts Cited: Explanatory Memorandum, Court of Petty Sessions Act 1972 (ACT)

Parties: Christopher May (Appellant) Helicopter Resources Pty Ltd (Respondent) Commonwealth of Australia (Respondent)

Representation: Counsel P Neil SC, C Jacobi and B Narula (Appellant) G O’Mahoney and D Habashy (Helicopter Resources Pty Ltd) G Livermore QC and C Currie (Commonwealth of Australia)

Solicitors Commonwealth Director of Public Prosecutions (Appellant) Norton White (Helicopter Resources Pty Ltd) Maddocks (Commonwealth of Australia)

File Numbers: ACTCA 34 of 2021 (May v Helicopter Resources Pty Ltd) ACTCA 35 of 2021 (May v Commonwealth of Australia)

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 10 June 2021 Case Title: May v Helicopter Resources; Commonwealth of Australia v May Citation: [2021] ACTSC 116 THE COURT:

Introduction

1. The appellant has brought two separate appeals to the Court of Appeal. The respondents in both have objected to the competency of those appeals on the basis that the general appeal provision in s 37E of the Supreme Court Act 1933 (ACT) does not permit a Crown appeal in the circumstances of the case.

2. There were two separate prosecutions brought by the appellant in the Magistrates Court. These arose out of the tragic death of a helicopter pilot employed by Helicopter Resources Pty Ltd (Helicopter Resources), which was contracted to provide helicopter services to the Australian Antarctic Division in Antarctica.

3. The appellant brought charges alleging contraventions of s 32 of the Work Health and Safety Act 2011 (Cth) against both Helicopter Resources and the Commonwealth. In relation to Helicopter Resources, the appellant alleged three contraventions of s 32 by reason of a failure to ensure, so far as was reasonably practicable, the health and safety of its pilots and thereby exposing pilots to a risk of death or serious injury. In relation to the Commonwealth, there were also three such charges. The proceedings were subject to a trial conducted before a magistrate between 17 June 2019 and 16 July 2019 and on 3 October 2019. The magistrate delivered his decision on 6 December 2019. He acquitted Helicopter Resources on all three charges. He acquitted the Commonwealth on one charge and convicted the Commonwealth on two charges.

4. The appellant appealed to the Supreme Court from the acquittal of Helicopter Resources. The Commonwealth appealed from its convictions to the Supreme Court. The appeal in relation to Helicopter Resources was brought pursuant to ss 207(1)(c) and 219B(1)(a) of the Magistrates Court Act 1930 (ACT) which provide for review appeals to be brought following unsuccessful prosecutions. The appeal by the Commonwealth was brought pursuant to ss 207(1)(a) and 208(1)(b) of the Magistrates Court Act, which allow a person convicted in the Magistrates Court to appeal to the Supreme Court.

5. In the Supreme Court, the primary judge dismissed the appellant’s appeal in relation to Helicopter Resources and allowed the Commonwealth’s appeal from its convictions. The end result was that none of the charges against either Helicopter Resources or the Commonwealth were made out.

6. The appellant has appealed from both of those decisions. Relying on the principle articulated in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 (Mastertouch), both respondents contend that the appeals do not fall within the scope of appeals which may be brought to the Court of Appeal under s 37E of the Supreme Court Act, which – subject to presently irrelevant exceptions – provides a general right of appeal to the Court of Appeal in relation to orders of the Court. As explained below, the Mastertouch principle is a principle of statutory interpretation that a statute providing for a general right of appeal will not be construed as permitting an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction.

(b) In the case of the Commonwealth, the contention is advanced in circumstances where the Commonwealth has appealed from its conviction by the magistrate and has been successful before the primary judge but the prosecution has appealed from the acquittal by the primary judge.

8. For the reasons that follow, both objections to competency are not made out with the result that each of the appeals is competent. The Mastertouch principle has no relevant application to either appeal:

(a) In the case of Helicopter Resources, the legislature has expressly provided for a prosecution appeal against an acquittal to the Supreme Court. The Mastertouch principle has no possible application to that right to appeal. The Mastertouch principle also does not apply to an appeal from orders made as a consequence of the exercise of an express right of appeal.

(b) In the case of the Commonwealth, it had a right of appeal to the Supreme Court from its convictions in the Magistrates Court. An acquittal ordered by the Supreme Court on appeal is not an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction. It is an order made on appeal from a decision on the merits. The Mastertouch principle does not apply in these circumstances. Section 37E of the Supreme Court Act includes a general right of appeal to the Court of Appeal in relation to orders of the Supreme Court and there is no principled basis for that provision to be read down to deny the prosecutor’s appeal.

Relevant statutory provisions

9. Section 207 of the Magistrates Court Act provides that the appellate jurisdiction of the Supreme Court extends to:

(a) appeals to which division 3.10.2 (Appeals in criminal matters) applies; (b) … (c) review appeals under division 3.10.3 (Review appeals in criminal matters).

10. In relation to Helicopter Resources, the prosecution appeal to the Supreme Court was authorised by s 219B(1)(a) which appears in Div 3.10.3 of the Magistrates Court Act, titled “Review appeals in criminal matters”. The relevant provisions of Div 3.10.3 are:

Division 3.10.3 Review appeals in criminal matters 219B Decisions subject to review appeal (1) Each of the following is a decision of the Magistrates Court from which an appeal by way of review (a review appeal) may be made in accordance with this division: (a) an order of the Magistrates Court dismissing an information dealt with by that court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375; (b) a conviction by the Magistrates Court for an offence dealt with by that court under this Act, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375; (c) an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 374 or section 375; (d) a decision of the Magistrates Court not to commit a person to the Supreme Court for sentence under section 92A; (e) a decision of the Magistrates Court to dispose of a case summarily under the Crimes Act, section 374 or section 375 (7) or (8); (f) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7 or under the Crimes Act, section 374 or section 375. … 219D Grounds for review The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds: (a) that there was a prima facie case of error or mistake on the part of the Magistrates Court; (b) that the Magistrates Court did not have jurisdiction or authority to make the decision; (c) that the decision of the Magistrates Court should not in law have been made; (d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made; (e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error. ... 219F Powers of Supreme Court (1) On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court— (a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or (b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court. (2) If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may— (a) for a decision mentioned in section 219B (1) (d)—order that the Magistrates Court commit the person to whom the decision relates to the Supreme Court for sentence under section 92A; or (b) for a decision mentioned in section 219B (1) (e)—order that the Magistrates Court continue the committal hearing of the person to whom the decision relates in accordance with part 3.5; or (c) for a decision mentioned in section 219B (1) (f)— (i) impose the sentence or penalty the Supreme Court considers appropriate; or (ii) by order, exercise any power that the Magistrates Court might have exercised; or (d) in any other case— (i) remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or (ii) make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order. (3) For the purpose of— (a) correcting any defect or error in the proceeding before the Magistrates Court; or (b) enabling the matter to be decided on the merits; the Supreme Court may make the amendments of the proceeding in the Magistrates Court it considers appropriate. (4) … (5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened. (6) On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted. (7) ... (8) On an appeal under this division from an order, decision, sentence or penalty mentioned in section 219B (1) (a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant. (9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.

11. The appellant relied on s 37E of the Supreme Court Act to permit an appeal from the Supreme Court to the Court of Appeal, which provides:

37E Appellate Jurisdiction … (2) The following matters may be brought before, and heard by, the Court of Appeal: (a) appeals in relation to orders of the court …

12. The Dictionary to the Act provides that “order” includes a judgment, decree, direction or decision.

13. The powers of the Court of Appeal upon an appeal are set out in s 37O of the Supreme Court Act. Relevantly, s 37O(1) provides:

37O Orders on appeal (1) The Court of Appeal has the following powers in relation to the order appealed from: (a) to confirm, reverse or amend the order; (b) to give any order it considers appropriate, or refuse to give an order applied for; (c) to set aside the order (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate; (d) to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered; (e) to order a new trial, with or without jury, on any appropriate ground; (f) to award enforcement of any order, or remit the proceeding to the court constituted by a single judge for enforcement of the order.

14. In relation to the Commonwealth, the appeal from the Magistrates Court to the Supreme Court was brought pursuant to s 208(1)(b) of the Magistrates Court Act. Section 208 provides:

208 Appeals to which div 3.10.2 applies (1) Each of the following appeals is an appeal to which this division applies: … (b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375; … (2) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.

15. The decision of the Full Court of the Federal Court in Martin v Purnell [1999] FCA 872; 93 FCR 181 at [19] and [25] is to the effect that s 208(1)(b) is confined to appeals in relation to indictable offences prosecuted summarily. This arises from reading Pt 3.6 of the Magistrates Court Act (which was previously Pt 7 of the Act) as though it was confined to such proceedings. That involves treating the content of the Part as though it only applied to those offences referred to in s 108A of the Magistrates Court Act, “Indictable offences dealt with summarily”. Having regard to the terms of s 108A (in particular the words “so far as it is applicable”) and the other provisions in the Part, it is clear that the Part applies to summary offences generally as well as those indictable offences that may be prosecuted summarily that are referred to in s 108A. Therefore, the terms of s 208 permitted an appeal in relation to the summary offences of which the Commonwealth was convicted.

The relevant authorities

16. The issue raised by the objection to the competency of each appeal is ultimately one of statutory construction. The question is whether s 37E of the Supreme Court Act should be construed in a manner which qualifies its general terms in a way that excludes from its scope an appeal of the type brought in each of the two cases. In order to answer this question of statutory construction, it is convenient to have regard to four decisions relating to the Mastertouch principle. That principle is that a statute providing for a general right of appeal will not be construed as permitting an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction.

Mastertouch

17. In Mastertouch, Deane J (with whom Smithers and Riley JJ agreed) analysed the power of the Full Court of the Federal Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to entertain an appeal against an acquittal entered by a judge of the Federal Court sitting at first instance.

18. Deane J started by examining cases from the United Kingdom which led to the statement in R v Chairman and Justices of the County of Tyrone (1906) 40 ILT 181 (Tyrone), that the principle that no appeal should lie from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction after a hearing on the merits was, by the th end of the 19 century, “well settled” and “elementary”. Deane J suggested that this principle was, “in essence, the statement of a common law right, namely, the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal”: at 552.

19. His Honour then examined how the principle had fared in colonial courts and legislatures. His Honour noted there was no reported instance of leave to appeal being granted by the Privy Council from a judgment of acquittal pronounced by a court in any of the Australian colonies after a hearing on the merits. However, that was qualified by reference to an acquittal entered by “an appellate court in the course of an appellate chain which the accused had himself initiated”: at 552. He then made reference to legislative departures from the principle where statutory provisions provided for the review of decisions of justices: at 552.

20. Next, Deane J referred to the exception provided by s 73 of the Constitution (Cth) and discussed (at 553-555) the approach adopted in the High Court both before and after the requirement for special leave to appeal was introduced for criminal matters.

21. Having reviewed these exceptions, his Honour recognised that, in Australia, the principle of no appeal from a judgment of acquittal did not have the universality or unchallengeable status referred to in Benson v Northern Ireland Road Transport Board [1942] AC 520 (Benson) at 526. Yet, his Honour characterised the legislative departures from the principle as vindicating it as a general principle of law: at 556.

22. Deane J then turned to consider whether the provisions of s 24(1) of the Federal Court of Australia Act conferred jurisdiction upon the court to hear and determine an appeal by the Crown against an acquittal in criminal proceedings in the Federal Court constituted by a single judge. His Honour said (at 556):

Such a legislative departure from the principle of no appeal from a judgment of acquittal pronounced by a court of competent jurisdiction after a hearing of criminal proceedings on the merits would be without precedent in this country or England …

23. His Honour recognised that such a departure was not beyond legislative competence, but indicated the need to “examine the relevant provisions with care before concluding that the legislative intent properly to be found within them is that the general words used should be so construed”. His Honour then referred to the principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless the words used point clearly and unambiguously to that conclusion.

24. His Honour concluded that the general words of s 24 of the Federal Court of Australia Act did not. He articulated the principle against which the provision had to be construed as: “An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law” and was contrary to “a fundamental principle of the common law”: at 560. He said there was “no relevant legislative precedent” for such an authority to institute or maintain such an appeal.

25. For present purposes, two points should be noted in relation to the reasoning of Deane J:

(c) First, his Honour confined the principle to the circumstances that were before him, namely an appeal from an acquittal by a superior court. He identified numerous statutory exceptions to the principle of no appeal against an acquittal in the case of decisions of inferior courts. (d) Second, he recognised as distinct from the principle which he articulated, circumstances in which a person was convicted and then themselves initiated the appellate chain: at 552, 553, 555 and 561.

Davern v Messel

26. In Davern v Messel (1984) 155 CLR 21 (Davern), the respondent had been convicted by a Northern Territory magistrate of certain offences. He appealed to the Supreme Court of the Northern Territory, which quashed the convictions. The informant then appealed to a Full Court of the Federal Court. A majority of that court held that an appeal did not lie under s 24(1) of the Federal Court of Australia Act from the judgment of the Supreme Court. This was a different question to that which arose in Mastertouch because the issue was the availability of the second-level appeal after the convicted person had been successful in a first-level appeal.

27. On appeal to the High Court, the decision of the Full Court of the Federal Court was overturned, with a majority finding that s 24 was not qualified in a way that prevented the prosecution appealing from an acquittal on appeal. The majority comprised Gibbs CJ (with whom Wilson and Dawson JJ agreed) and Mason and Brennan JJ, who wrote a separate judgment.

28. Both of the majority judgments affirmed the Mastertouch principle. However, both treated the principle as not resolving the issue before the court. Both found that the Crown appeal was competent.

29. Gibbs CJ started by referring to the decisions in Benson and Tyrone: at 31. His Honour then referred to the decision in R v Snow (1915) 20 CLR 315 which related to the operation of s 73 of the Constitution in the context of an appeal from an acquittal by a jury. His Honour accepted the rule, arising from Benson, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly: at 32. His Honour therefore approved the decision in Mastertouch: at 32-33. He left open the argument as to whether or not the reasoning in Mastertouch applied when a hearing was “not one on the merits”: at 33. He recognised that the decision in Mastertouch did not resolve the issue before him, which concerned an appeal from a decision given on an appeal from a conviction. He said (at 33):

The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning.

30. The reference in this passage to “a patent error of law” does not come from Benson, Tyrone or Mastertouch. Its significance is addressed later in these reasons. His Honour ultimately held (at 41-45), and each of the other judges in the majority agreed, that the judge who heard the appeal to the Supreme Court (Gallop J) had made patent errors of law. The errors that were made, as articulated by Gibbs CJ, are appropriately described as “patent errors of law”.

31. His Honour (at 33) identified the question as follows:

The question then is whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and prevent oppression. It seems to me neither unfair nor oppressive to restore a conviction that was set aside on erroneous legal grounds.

32. Once again, the significance of the reference to "erroneous legal grounds" is addressed later in these reasons.

33. His Honour made reference to a number of decisions of the Privy Council (including R v Bertrand (1867) LR 1 PC 520), in which appeals from intermediate courts of criminal appeal had been entertained notwithstanding that the underlying conviction had been set aside or quashed by the intermediate court. Gibbs CJ recognised that these decisions were based upon the width of the prerogative power exercised by the Privy Council but said (at 35):

[I]t does not seem to have occurred to any of the distinguished lawyers concerned that there was any conflict between the rules governing the extent of the prerogative and the common law principle that forbids an accused person to be exposed to double jeopardy.

34. His Honour then referred to the express power of courts of criminal appeal to order a new trial, thereby exposing again the accused to a risk of conviction. He referred to the jurisdiction of the High Court under s 73 of the Constitution and its interpretation by the court, which was consistent with there being no principle that prevented the overturning of a decision of an intermediate court of appeal.

35. He then turned to consider the position of courts of summary jurisdiction, saying (at 37):

A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted.

36. Gibbs CJ then referred to a variety of statutory mechanisms available for review of the decisions of magistrate or justices, saying (at 38):

It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices. What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction.

37. As a result of this review of the authorities, his Honour said (at 39) in relation to circumstances where an accused person has successfully appealed against his conviction at first instance and the prosecution seeks to appeal from the decision quashing the conviction, that:

[A]ppeals of that kind have consistently been entertained by the House of Lords, the Judicial Committee and this Court, and that whenever it has been suggested that the principle in Benson v Northern Ireland Road Transport Board is applicable to such a case that suggestion has been rejected.

38. Gibbs CJ made reference (at 39) to the majority decision in the court below and said:

However there are authorities, additional to those which I have already cited, which support the view that I have endeavoured to express that the rule against double jeopardy does not prevent a higher court from correcting an error into which a lower court has fallen in quashing a conviction.

39. It should be noted that this formulation did not involve a reference to the error being an error of law.

40. His Honour concluded (at 40): The authorities favour the view which in my opinion accords with common sense and the interests of justice, that if a convicted person secures the quashing of a conviction on an erroneous legal ground, a further appellate court has the power to correct the error of law and to restore the conviction which should never have been disturbed.

41. His Honour said the fact that the judge had conducted the appeal as a rehearing did not affect the position, because the appeal provision was not the equivalent to a quarter sessions appeal (which might have occupied a special position) or its modern equivalent and, in any event, the judge “had not completed the taking of the evidence; he made no adjudication on the facts and his decision was entirely on questions of law”.

42. The judgment of Mason and Brennan JJ commenced by reference to the decision in Mastertouch and the fact that it had been consistently followed in the Federal Court.

43. Their Honours identified that the origins of the principle of the common law invoked in Mastertouch was “somewhat obscure” because the right to appeal was unknown to the common law and is entirely a creature of statute. Their Honours identified that the th development of appeals in criminal matters towards the end of the 17 century gave rise to the question of whether or not appeals lie from an acquittal. They referred to the statement of principle as to statutory interpretation in Tyrone and other decisions including Benson, in which an entitlement to appeal had been denied to a prosecutor: at 48-49. Their Honours then referred to the fact that appeals by case stated from the dismissal of an information had been entertained by the English courts. They considered (at 50-51) the position in relation to certiorari, where courts have both granted and refused to grant certiorari to quash dismissals of proceedings by magistrates.

44. Their Honours then discussed the position in relation to appeals in indictable criminal matters introduced by various statutes in the Australian States after the Criminal Appeal Act 1907 (UK).

45. They next turned to consider the course of judicial decisions in Australia on statutory provisions providing for an appeal from orders made in summary proceedings. They referred to some cases in line with English authority which had limited the capacity of a prosecutor whose information was dismissed to seek review of that decision. They also referred to “many instances in which the courts have held that a statute expressed in general terms has conferred a right of appeal from a conviction, relying on some indication of an intention to that effect”. However, their Honours identified that the correctness of the principle of interpretation stated in Tyrone and Benson seems to have been accepted. They summarised the position (at 52) as being:

The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate: R v Weaver [(1931) 45 CLR 321 356], per Evatt J.

46. Their Honours (at 52-54) then referred to the position of the Judicial Committee of the Privy Council and s 73 of the Constitution, in a manner that recognised the powers of those bodies to entertain appeals from judgments of acquittal, but also to exercise of the discretion to grant leave to appeal in a manner consistent with the common law rule. They did however refer (at 54) to the reasons of Dixon J in R v Wilkes (1948) 77 CLR 511 at 516-517. In that case, his Honour, considering the exercise of discretion to grant special leave, appeared to adopt a similar approach to judgments of acquittal given by courts of criminal appeal to that concerning acquittal by juries.

47. Their Honours recognised that the decisions of the Privy Council on the scope of the prerogative appeal and the decisions of the High Court on s 73 of the Constitution, while recognising the acceptance of the principle of interpretation in Tyrone and Benson, did not give support to the appellant’s argument.

48. Mason and Brennan JJ then said (at 55) that Australian, as well as English and Irish, authority supports the principle of interpretation stated in Tyrone, endorsed in Benson and applied in Mastertouch. The main foundation for the principle was “the rule against double jeopardy, though the principle may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings”.

49. Their Honours also said (at 55) that it was “somewhat surprising that the courts concluded so readily, without discussion of the countervailing factors, that the rule against double jeopardy extended so as to bar an appeal against an acquittal”. They pointed to a statement to the effect that a person “cannot be said to be more than once in jeopardy in the same cause”, as the cause continues from the beginning to the end of the case. They said that the considerations of unfairness and injustice that a person would be prosecuted twice for the same offence lose their force when an appeal is sought to be equated with the second prosecution. The risk of the pursuit of a Crown appeal being carried to the point of persecution is more remote and the Crown has a legitimate interest in securing a review of the trial “more particularly if it appears that a trial judge has made an erroneous ruling on a question of law or departed from correct procedures”. Notwithstanding this, their Honours recognised that the body of authority was too strong to overthrow and legislative provisions have been based upon the footing that the decision of the court of criminal appeal will leave an acquittal undisturbed. Those factors led their Honours to conclude (at 56) that Mastertouch was rightly decided.

50. Mason and Brennan JJ then articulated the question as being “whether the principle extends to deny an appeal by the Crown from a judgment of acquittal by a court of criminal appeal following a successful appeal by the accused against his conviction at first instance”. They referred back to the reasons of Dixon J in R v Wilkes which, for the purposes of a grant of special leave, extended the principle to appeals from acquittal given by courts of criminal appeal. Their Honours referred to cases in which the High Court had allowed appeals from courts of criminal appeal that had quashed a conviction. They recognised that the House of Lords had allowed appeals against judgments of acquittal by a court exercising appellate jurisdiction in accordance with statutory provisions expressly providing for appeals by prosecutors.

This statement reflects a clearer understanding of the policy underlying the rule against double jeopardy and achieves a truer balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of the law. Traditionally it has been thought that unfairness and injustice may result to a defendant from the reversal of an acquittal obtained at first instance but it is difficult to see how these considerations can apply to the quashing of an order reversing a conviction which has already been obtained.

52. Next, their Honours referred to the approach of the Supreme Court of the United States, where it was “well settled” that an appellate court’s order reversing a conviction is subject to further review.

53. Their Honours then said (at 60):

The fundamental question, however, as it seems to us, is whether once the defendant appeals from a conviction at first instance, thereby setting the appellate process in motion, it is legitimate for the prosecutor by recourse to the same process to have an error on the part of the first appellate court corrected. As Friedland [in Double Jeopardy (1969)] comments, at p. 293, once the case is in the appellate hierarchy there is no legitimate reason why the matter should not be determined by the higher court. The exercise, on proper occasions, of the further appellate jurisdiction is important to ensure the due administration of justice in the individual case as well as for the general administration of the criminal law [R v Bertrand (1867) LR 1 PC 520 at 530].

54. Their Honours (at 60) referred to the fact that courts of criminal appeal have for over half a century exercised the power to order a new trial on an appeal by a defendant from a conviction with the consequence that a new trial pursuant to such an order constitutes no violation of the rule against double jeopardy. That was seen as relevant in determining “whether the concept of double jeopardy as it has developed in this country extends to a new trial ordered by a second appellate court on appeal from a first appellate court when it erroneously entered the judgment of acquittal instead of ordering a new trial”.

55. Their Honours agreed with Gibbs CJ that Gallop J was wrong in holding that the convictions of the respondent should be quashed.

56. It is notable that their Honours, while endorsing the correctness of Mastertouch, did so by reference to the weight of past authority and legislative action based on that authority. Their Honours were not satisfied that the extension of that approach to Crown appeals within the appellate hierarchy against the quashing of convictions was warranted.

57. Murphy J and Deane J dissented. Murphy J articulated a very broad approach to the principle of double jeopardy and applied that to second-level appeals even where legal error of the acquitting court was established. Deane J adopted a similar approach to that which he had adopted in Mastertouch, except identified that it was the rationale for the common law principle that led him to what he considered to be the preferable view and “the weight, as distinct from quantity, of authority”.

58. The result of Davern was that the prosecution appeal was competent in circumstances where the respondent to the appeal had himself invoked statutory provisions permitting him to appeal from his conviction.

Hatty v Pilkinton

59. In Hatty v Pilkinton (1991) 28 FCR 352 (Hatty), the respondent had been convicted of an offence in the Australian Capital Territory Magistrates Court. On appeal to the Supreme Court, the conviction was set aside and a judgment of acquittal was entered. The informant appealed to the Federal Court seeking to have the decision of the Supreme Court set aside. The respondent objected to the competency of the appeal.

60. The respondent contended that the Supreme Court had entered a judgment of acquittal after a hearing on the merits and that in those circumstances, no appeal lay to the Full Court of the Federal Court. The Full Court identified (at 356) that in Davern, Mason and Brennan JJ placed no reliance upon the circumstances that the quashing of the convictions in that case was founded upon an erroneous view of the relevant law and that their conclusion did not depend upon an examination of the question of whether the hearing before the intermediate appellate court might properly be described as a hearing “on the merits”.

61. The submission was made, however, that Gibbs CJ only reached the conclusion that the appeal was competent because the decision of the Supreme Court of the Northern Territory was not an adjudication on the facts but only upon a question of law. This was based upon passages in his Honour’s reasons which made reference to “a patent error of law” (Davern at 33) and “erroneous legal grounds” (Davern at 33, 40). The court said of this submission (at 358):

We are unable to accept this submission. It is clear from the passage last cited from his Honour’s judgment that that circumstance was not the decisive factor but an additional circumstance supporting the conclusion that the appeal to this Court was competent. We think it follows clearly from what his Honour said that, even had the Supreme Court completed the hearing on which it had embarked and at the conclusion of that hearing quashed the convictions on any grounds, s 24 of the Federal Court of Australia Act would have operated to permit an appeal to be brought to this Court.

62. Because it had reached this conclusion, the court said (at 358-359) that it was unnecessary to consider the nature of the appeal to the Supreme Court other than to note that it was not a hearing de novo, or otherwise an appeal which could be described as equivalent to a quarter sessions appeal. Further, it was unnecessary to consider whether what took place before the Supreme Court was properly described as a hearing “on the merits”. It found the appeal was competent.

63. The explanation given by the court for the references in the decision of Gibbs CJ to the matter involving questions of law or erroneous legal grounds as being “an additional circumstance” is a matter returned to later in these reasons.

64. The decision in Hatty clearly supports the proposition that, where a convicted person appeals to a higher court, and there is a general statutory right of appeal from orders made by that higher court, the general statutory right of appeal will not be read down by reference to the Mastertouch principle.

Moroney v Wojcicka

65. In Moroney v Wojcicka [2003] ACTCA 15; 143 A Crim R 1 (Moroney), the respondent had been convicted by a magistrate for failing to have his seatbelt “properly adjusted and fastened”. He appealed to the Supreme Court. The Supreme Court judge found an obvious error of law in the approach taken by the magistrate. With the agreement of counsel, he then went on to resolve the entire matter by reference to the transcript of the evidence before the magistrate, rather than remitting the matter for further hearing. Ultimately, the appeal was upheld and the conviction set aside. The prosecution then appealed to the Court of Appeal and an objection was taken to the competency of that appeal. The objection was that the appeal was incompetent because it was an appeal against an acquittal by a court of competent jurisdiction entered after a hearing on the merits. The appellant relied upon the decision in Hatty which was said to be directly on point.

66. Higgins CJ, Gyles and Weinberg JJ adopted Mastertouch as the starting point but identified (at [40]) that the case before them involved an initial hearing before a magistrate who convicted the defendant, and not before the judge whose decision to acquit was the subject of the appeal. The court identified that the informant had been successful before the magistrate but unsuccessful on appeal. It identified that the question to be resolved was whether the informant was precluded by the rule against double jeopardy, or some underlying principle related to that rule, from appealing against the dismissal of the charge by the Supreme Court judge who heard the appeal from the magistrate.

67. Their Honours then went on to consider the decision in Davern which was “of central importance to the resolution of this question”. They identified “at least three, and arguably four, separate strands of reasoning in the various judgments of members of the Court”.

68. The court first examined the reasons of Gibbs CJ, who reached the conclusion (at 40) that there was no reason why the Federal Court could not hear and determine an appeal from a decision given by the Northern Territory Supreme Court quashing a conviction. The court explained that the reference in the decision of Gibbs CJ to the proceedings not being an appeal to quarter sessions was a reference to jurisdiction conferred on district or county courts to hear appeals de novo from the decision of magistrates. The court (at [55]) distinguished that kind of an appeal from an appeal by way of rehearing.

69. The court then turned to the “second strand” of reasoning in Davern, the joint judgment of Mason and Brennan JJ. The court identified the distinction between the decision of Gibbs CJ and the decision of Mason and Brennan JJ as being that the latter did not regard the fact that the Supreme Court judge had not engaged in “a hearing on the merits” as being a relevant consideration. The court referred to the conclusion reached by Mason and Brennan JJ that “once the case is in the appellate hierarchy there is no legitimate reason why the matter should not be determined by the higher court”.

Whilst the present case remains within the court system, decisions at different levels of the hierarchy are not a final acquittal or conviction of the respondent. In this appeal, this Court has its function to discharge. Until the end of the appellate line is reached, the proceedings between the appellant and the respondent have not been finally adjudicated upon. There is therefore no impediment in this Court’s determining the appeal on the merits.

75. The court then made reference (at [77]-[82]) to a number of other authorities of less direct relevance.

76. The court concluded that the appeal was competent. The court noted that the acquittal was based upon his Honour’s interpretation of the expression “properly adjusted” and said that if that interpretation was erroneous “there is no reason in principle for denying Constable Moroney the opportunity to have it corrected”.

77. Moroney can be understood as involving a relatively straightforward acceptance of the outcome of Davern as applied in Hatty. However, the explanation of the ultimate basis for the disposition leaves open the argument that it was based upon the existence of an error of law as to the interpretation of the expression “properly adjusted”.

Consideration

Commonwealth

78. The Commonwealth made two submissions. First, it submitted that s 37E of the Supreme Court Act did not permit an appeal by the prosecution against the acquittal of the Commonwealth at all. Second, it submitted that if a prosecution appeal was permitted then it was only available to correct “a patent error of law” or a decision “based on erroneous legal grounds”.

79. The first submission, that s 37E should be construed as providing no appeal to the prosecutor, appeared to be based upon the direct application of the Mastertouch principle where an acquittal occurs after an appeal that involves a rehearing “on the merits”. The Commonwealth submitted that there was no statement of principle in Davern that clearly commanded a majority of the High Court. Further, it submitted that the reasoning of the dissenting judges, Murphy J and Deane J, to the effect that that “whether an acquittal occurs after a hearing at first instance or on an appeal after an ‘on the merits’ rehearing does not impact the Mastertouch principle” was persuasive. The Commonwealth did not, however, submit that Davern was wrongly decided. In those circumstances, the broad proposition advanced by the dissenting judges that the Mastertouch principle also applied in relation to second-level appeals from acquittals arrived at on first-level appeals cannot be accepted, as it is inconsistent with the decision of the majority in Davern.

80. The second submission, that an appeal was limited to correction of “a patent error of law” or a decision “based on erroneous legal grounds” also revolved around the interpretation of the reasons given in Davern. The submission was that the ratio of Davern was to be found in the reasons of Gibbs CJ who, along with Wilson and Dawson JJ, comprised the plurality. The submission was that “the reasons of Mason and Brennan JJ are no more binding on this court than those of the minority, Murphy J and Deane J”. Expressed in that way, such a submission was a surprising one to be made by counsel appearing on behalf of the Commonwealth. The ratio of a case is to be found in the reasons commanding a majority of the court. A plurality of the court is not a majority. It is necessary to find the grounds which commanded a majority of the court. In that exercise, the reasons of judges who did not agree to the orders made by the court are to be disregarded: Federation Insurance Limited v Wasson (1987) 163 CLR 303 at 314. The ratio of a case is not to be found by some amalgam of the reasoning of judges in the majority and dissenting judges: see Perara- Cathcart v The Queen [2017] HCA 9; 260 CLR 595 at [134] and the cases cited therein. These statements of basic principle mean that the ratio of the case must be found in the reasons of Gibbs CJ and those of Mason and Brennan JJ. The reasons of Mason and Brennan JJ cannot be ignored. However it can be accepted that, if the reasons of Gibbs CJ expressed a principle consistent with but narrower than that expressed in the reasons of Mason and Brennan JJ, then the ratio of the case will reflect that narrower principle.

(a) There is nothing in the record of the arguments in the High Court in Davern which suggested that the existence of a “patent legal error” or “erroneous legal grounds” was relevant to any statement of the Mastertouch principle or qualification upon it in relation to appeals.

(b) There is nothing in the dissenting judgments of Murphy J or Deane J in Davern which suggests that legal error is a relevant aspect of the principle. The only reference in the decision of Deane J to review for errors of law is to statutory provisions allowing for, in effect, reference appeals, which provide a means by which errors of law may be corrected: see Davern at 68.

(c) There is nothing in the decision of Deane J in Mastertouch itself which suggests that error of law is a component of the principle which he articulated. On the contrary, Deane J was at pains to point out that the general principle applied to acquittals after a hearing on the merits whether or not the relevant issues were issues of fact or law saying (at 551): It is apparent that any general principle recognized by the above cases applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law. (d) Neither of the most significant decisions relied upon as founding the Mastertouch principle, Tyrone and Benson, make such a distinction relevant.

92. The effect of this explanation of the decision of Gibbs CJ is that his Honour’s decision was a relatively narrow one. His Honour was not positively articulating that the Mastertouch principle continued to apply to second-level appeals except where the appeal was on a question of law.

93. In any event, there is no reason in principle why, if a second-level appeal involving questions of law fails to engage the Mastertouch principle, a second-level appeal involving questions of fact would engage the Mastertouch principle. If statutes authorising second-level appeals involving questions of law are not subject to a restrictive principle of interpretation, there is no basis to conclude that second-level appeals involving questions of fact are subject to a restrictive principle of interpretation. The submissions of the Commonwealth did not provide a principled foundation for any such distinction. The conclusion that there is no principle of statutory interpretation that confines the general words of a statute providing for second-level appeals raising questions of law is clearly consistent with the decision in Hatty. While the reasoning in Moroney is less clear, there is nothing in it which casts doubt upon the decision in Hatty, which it expressly accepted as correct.

94. As a consequence, the appellant’s appeal is not incompetent.

95. In those circumstances, it is not necessary to address the appellant’s alternative argument that the Mastertouch principle has no application to a body politic such as the Commonwealth.

Helicopter Resources

96. Helicopter Resources raised two distinct issues in relation to the competency of the appeal:

(a) the application of the Mastertouch principle to second-level appeals in circumstances where it was clear that first-level appeals by the prosecution were permissible;

(b) whether the formulation of the grounds of appeal in the Notice of Appeal rendered the appeal incompetent.

Application of the Mastertouch principle

97. Helicopter Resources submitted that the Mastertouch principle applied in circumstances where the legislature had expressly addressed the issue of prosecution appeals by allowing them pursuant to the review appeal provisions in Div 3.10.3 of the Magistrates Court Act. In other words, notwithstanding that the principle had been addressed and displaced when the legislature permitted a first-level appeal, the principle was revived for the purposes interpreting the scope of a second-level appeal. It contended that the general terms of s 37E of the Supreme Court Act were not sufficient to indicate a legislative intention to permit appeals from a review appeal under s 219B of the Magistrates Court Act. In particular, Helicopter Resources pointed to the absence of specification of review appeals in ss 37E(2)(b)-(d) of the Supreme Court Act. It also pointed to the absence in the general appeal provisions of any of the specific protections that exist for the respondent to such appeals in s 219B, particularly the narrowness of the grounds upon which a decision may be reviewed and the requirement that the prosecution pay the defendant’s costs in any event.

98. It is clear that, notwithstanding the general principle of interpretation reflected by the decision in Mastertouch, the legislature has specifically grappled with the issue of prosecution appeals against the dismissal of informations by the Magistrates Court. Having done so, there is no sufficient reason why, in relation to the next level of appeal, the generally-worded appeal provisions would not apply. That is consistent with the approach adopted in circumstances where the first-level appeal is initiated by the defendant as reflected in the cases already discussed. Mastertouch itself did not identify that the principle extended to such appeals. It has not been demonstrated that there is a principle of interpretation that involves the revival of the Mastertouch principle in relation to a second-level appeal in circumstances where it has been definitely excluded in relation to the first level of appeal. It cannot be said that such a principle of statutory interpretation exists or was assumed to exist by the legislature when enacting s 37E of the Supreme Court Act.

99. The most that can be said for the contention is that some implication might be drawn from the limited terms of s 219B of the Magistrates Court Act which confine the grounds of appeal and provide a special regime in relation to costs. However, those features of s 219B are not sufficient to give rise to a very significant implied limit on the scope of s 37E of the Supreme Court Act. Although the absence of such provisions in relation to a second-level appeal might be seen to be disharmonious with the provisions governing the first-level appeal, the level of disharmony is in fact only minor. So far as the grounds of appeal are concerned, the second-level appeal will necessarily be confined by the issues which may be agitated upon the first-level appeal. That is because on the second-level appeal, the court will be examining whether there was an error in the approach taken in relation to the first-level appeal. The scope of the appeal will therefore not be expanded in a way that denies the effect of the limitations upon the first-level appeal. So far as costs are concerned, it must be accepted that there is no legislatively mandated rule in relation to costs for the second-level appeal. That puts the defendant in a different position on the second-level appeal as opposed to the first-level appeal. However, the existence of the legislatively mandated rule in relation to the first-level appeal is a matter to which the court would have regard when making any costs order arising out of the second-level appeal: see, for example, Riley v Seip [2006] ACTCA 5 at [26].

Formulation of the grounds of appeal

102. The final issue raised in the Helicopter Resources appeal relates to the grounds of appeal. It was submitted that the identified grounds of appeal were not appellable errors. It was submitted that the appellant was confined to identifying error in the court below rather than simply mounting a fresh attack on the original decision.

103. Relevantly, s 219D of the Magistrates Court Act permitted the Supreme Court to review a decision of the Magistrates Court on the grounds that:

(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court; (b) that the Magistrates Court did not have jurisdiction or authority to make the decision; (c) that the decision of the Magistrates Court should not in law have been made.

104. The first four grounds of appeal in the Amended Notice of Appeal are not expressly drafted by reference to an error of the primary judge in relation to one or other of the grounds in s 219D. Those grounds concern findings of the primary judge about what measures were reasonably practicable, how the particulars of a charge were cast or understood by the primary judge, a failure to find that there was an actual risk or hazard that existed in relation to two helicopter flights in December 2015, and the primary judge’s approach to the third element of the offence under s 32 of the Work Health and Safety Act 2011, which was that a failure to comply with a health and safety duty exposed an individual to a risk of death or serious injury or illness. The fifth ground, which was included by amendment after the submissions of the Commonwealth and Helicopter Resources were filed, specifically picks up the language in s 219D by asserting that the primary judge “erred in failing to determine (and consequently failing to find the respondent guilty) that there was a prima facie case of error or mistake by the Magistrates Court; or the decision of the Magistrates Court should not in law have been made: in that the learned Magistrate” erred in various ways which are set out. Those alleged errors, on their face, appear to involve factual errors rather than legal ones. They mirror the terms of the Notice of Appeal in the Supreme Court.

105. The structure of the Amended Notice of Appeal, being targeted at errors of the primary judge on the one hand and failures to find error on the part of the magistrate on the other, arises because of the nature of the charges. The charges against the Commonwealth alleged that the Commonwealth should have undertaken an assessment of the helicopter landing sites for the presence of crevasses while Helicopter Resources should not have permitted its pilots to fly unless the assessment had been undertaken. Thus, the proof of the charges against Helicopter Resources was dependent upon the proof of the charges against the Commonwealth. As a consequence, in order to succeed the appellant needed to establish both the charges against the Commonwealth (in relation to which it alleged that the primary judge had erred) as well as the charges against Helicopter Resources (in relation to which it alleged that the magistrate had erred).

106. As a consequence, the parties agreed before the primary judge that if the Commonwealth’s appeal against its two convictions was successful then the review appeal in relation to Helicopter Resources would necessarily fail: May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116 (May) at [11]. This meant that the primary judge could focus on the Commonwealth’s appeal. It was for that reason that his Honour said that, having regard to his conclusions, the “gateway” provisions set out in s 219D would have “little part to play” in his reasons: May at [4].

107. That approach avoided the need to consider what consequences flowed for the appeal in relation to Helicopter Resources from the difference between the scope of the appeal available to the Commonwealth under s 208 of the Magistrates Court Act and that available in the appeal relating to Helicopter Resources under s 219B. Because the appeal in relation to the Commonwealth was a rehearing but the appeal under s 219B was a review appeal, there was potential for issues to arise which turned on the scope of those different appeals. Because of the conclusion reached by the primary judge and the agreement of the parties as to the consequences of that conclusion, those issues did not need to be addressed.

(a) the fact that the Amended Notice of Appeal directly picks up the language used in s 219D of the Magistrates Court Act;

(b) the relationship between the charges against the Commonwealth and those against Helicopter Resources;

(c) the fact that the line of authority referred to in the preceding paragraph was not identified in the submissions made by the parties;

(d) the fact that the reasons in the court below did not have to address the scope of the grounds in s 219D;

(e) the potential complexity arising from the different appeal regimes applicable in the Supreme Court in relation to the two appeals; and

(f) the potential for the grounds of appeal to be amended;

it is not possible, at this stage, to reach a conclusion that, because of the formulation of the grounds of appeal, the appeal is incompetent. The availability of particular grounds of appeal in light of the scope of s 219D and the manner in which the proceedings were argued before the primary judge is a matter that may be addressed at the hearing of the appeal.

Orders

111. For these reasons, the orders of the Court are as follows: 1. ACTCA 34 of 2021 (the Helicopter Resources appeal): The application in proceeding dated 10 August 2021 is dismissed with costs.

112. ACTCA 35 of 2021 (the Commonwealth of Australia appeal): The application in proceeding dated 6 September 2021 is dismissed with costs.

I certify that the preceding one-hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Thawley and Acting Justice McWilliam

Associate:

Date: 30 March 2022

Amendments

30 March 2022 Replace ‘ and’ after ‘P Neil SC’ in Page 2, ‘Representation: Counsel for the Appellant with ‘, C Counsel’ Jacobi and B Narula’