Mellifont v Attorney-General

In the result, the Court of Criminal Appeal was correct in the answer which it gave to question (a) of the Attorney-General's reference under s. 669A.

The answer given by the majority in the Court of Criminal Appeal (Cooper J. dissenting) to question (c) of the Attorney-General's reference was:

The relevant question, in relation to materiality, was whether the false evidence pertained or related to a matter, namely the opening of bank accounts, which was capable of affecting a decision of the Commission on the subject of unlawful gambling. Mr. Jackson submits that the majority were in error and that the effect of their interpretation is to treat the words "touching any matter" in s. 123 as if they were a separate part of the provision rather than as part of a composite expression "false testimony touching any matter". The consequence of the majority's interpretation is that, even if the false testimony is not itself "material to any question then depending" in the proceedings, an offence is nevertheless committed if the false testimony is relevant to a matter which is material to such a question.

The interpretation for which the applicant contends brings the statutory offence into line with the common law offence of perjury. Indeed, the applicant submits that there is an ambiguity in the section, namely, whether the adjectival clause commencing with the word "which" qualifies "false testimony" or "matter", and that it is legitimate to have regard to the common law in resolving that ambiguity.

At common law it was necessary to establish the materiality of the false statement itself as an element in the offence of perjury [22] . In Reg. v. Millward [23] , the Court of Appeal rejected the submission, in the context of s. 1(1) of the Perjury Act 1911 U.K., that it was the materiality of the truth, if told, which is the question to be decided. The Court decided that it is the materiality of the false statement itself which is the element of the offence. In arriving at this conclusion, the Court applied the common law authorities on perjury [24] .

1. Reg. v. Lavey (1850), 3 Car. & K. 26, at p. 30 [175 E.R. 448, at p. 450], per Lord Campbell C.J.; Reg. v. Goddard (1861), 2 F. & F. 361 [175 E.R. 1096]; Reg. v. Davies (1974), 7 S.A.S.R. 375; Reg. v. Traino (1987), 27 A. Crim. R. 271. 2. [1985] 1 Q.B. 519. 3. [1985] 1 Q.B., at p. 525.

[W]here evidence in some previous proceedings is the subject of a charge of perjury the question whether the statement in question was material to the issues in the original proceeding must, in many cases, be a question of law. Material in this context must mean, not only relevant, but practically relevant. In the same case, Wells J. stated [26] : A decision on materiality will, generally speaking, necessitate a judgment as to whether the testimony assigned as perjury was of a fact in issue, of a fact relevant to a fact in issue, or of some fact that was fairly capable of affecting the defendant's credit or (rarely) the credit of some other witness. His Honour's statement was referred to with approval by King C.J. and Jacobs J. in Traino [27] . 1. (1974) 7 S.A.S.R. 375, at p. 377. 2. ibid., at p. 391. 3. (1987) 27 A. Crim. R., at pp. 276, 278.

The primary difficulty with the applicant's argument is that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous [28] . That ambiguity must appear from the provisions of the statute; in other words, it is not permissible to resort to the antecedent common law in order to create an ambiguity. Nor, for that matter, is it permissible to resort to extrinsic materials, such as the draft Code and Sir Samuel Griffith's explanation of the draft Code, which are referred to in the dissenting judgment of Cooper J. in the Court of Criminal Appeal, in order to create such an ambiguity.

1. Stuart v. The Queen (1974), 134 C.L.R. 426, at p. 437.

The words "which is material" naturally relate back to their immediate antecedent "matter". It would be an unnatural and unusual reading to relate the words back to "false testimony". Moreover, the applicant's construction of the section leaves the words "touching any matter" with little, if any, work to do. Furthermore, reading the words according to their natural construction, even if it works an extension of the common law offence of perjury, does not bring about any surprising consequences.

Accordingly, the Court of Criminal Appeal was correct in the answer which it gave to question (c).

In the result, we would grant special leave to appeal but dismiss the appeal.

Prior to O'Toole v. Charles David Pty. Ltd. [29] , the principle that "an appeal will not lie to this Court under s. 73 of the Constitution from a judicial opinion which is advisory and which leaves the legal situation of the parties unaffected and does not by itself operate to affect in some way the parties' mutual rights and obligations" [30] had been taken to be "well settled" [31] . A majority of the Court in O'Toole questioned the correctness of the decisions which had established and adhered to that principle. The change in constitutional principle foreshadowed in O'Toole is effected and further advanced by the reasons of the majority in this case. I shall state the reasons why I am unable to follow the path which leads the majority to the conclusions that Saffron v. The Queen [32] was wrongly decided and that this Court has appellate jurisdiction to entertain an appeal by special leave from an opinion of the Court of Criminal Appeal of Queensland, furnished to the Attorney-General of that State pursuant to the provisions of s. 669A of The Criminal Code Q..

1. (1990) 171 C.L.R. 232. 2. Fisher v. Fisher (1986), 161 C.L.R. 438, at p. 450, per Gibbs C.J. 3. Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation (1987), 163 C.L.R. 421, at p. 425. 4. (1953) 88 C.L.R. 523.

Had s. 669A provided that a trial judge's ruling in the course of a criminal trial could be challenged by the Crown before the Court of Criminal Appeal and the appellate ruling applied on a resumption of the trial, the ruling by the Court of Criminal Appeal would be plainly a step in the trial process affecting the legal situation of the parties. But s. 669A provides a different procedure: there must first be a nolle prosequi as a result of a determination of a point of law; then the person accused is discharged from any further proceedings upon that indictment [33] . At that stage the trial is at an end. The issues for trial which arise on plea to the indictment are withdrawn; the jury is discharged from giving a verdict. Next s. 669A provides for a reference of the point of law by the Attorney-General to the Court of Criminal Appeal. A notice of the reference must be given to the person who has been discharged. The Court hears argument (a) on behalf of the Attorney-General, and (b) on behalf of the person discharged "if he so desires". Thereafter the Court furnishes its opinion to the Attorney-General. There are no issues to be determined between the Attorney-General and the person who has been discharged and no requirement that the person whose trial was terminated by the nolle prosequi should be re-indicted. Indeed, although the Attorney-General is the recipient of the Court's opinion, the discretion to re-indict the person who has been discharged may be reposed in other hands. In this case, it appears, in the hands of a Special Prosecutor. The opinion may be used not only on a further trial of the person in whose trial the point of law arose but also on the trial of other persons where the same point will arise. The opinion can have the practical effect of a judicial precedent though a person on whose trial the opinion is used did not argue the point in the Court of Criminal Appeal; indeed, he may not have had any right to be heard. The opinion is, in law, no more than a judicial opinion on a point that is entirely hypothetical. That proposition is manifest when one considers that an opinion under s. 669A may be sought after an acquittal on "any point of law that has arisen at the trial". Clearly enough, the opinion of the Court of Criminal Appeal against which the applicant seeks special leave to appeal "leaves the legal situation of the parties unaffected" and "does not by itself operate to affect in some way the parties' mutual rights and obligations". The purpose of the proceeding is not the determination of a point of law on which any issue of substance or procedure depends: the opinion is not furnished to a court but to a Minister of the Executive Government. Presumably the Court of Criminal Appeal is authorized to publish a copy of the opinion it furnishes, though s. 669A does not expressly say so. The effect of the opinion can be stated in the terms in which Dixon C.J. described the answers of a Court of Criminal Appeal to questions reserved after a verdict of acquittal in Saffron [34] :

It can operate only as a judicial precedent, having at best the effect which in English jurisprudence is afforded to the decisions of a court as precedents. That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability. Under the principles settled prior to O'Toole , an opinion under s. 669A would not have been classified as a judgment, decree, order or sentence from which an appeal would lie to this Court under s. 73 of the Constitution. I shall trace the steps which seem to me to be established in constitutional principle and which lead me to hold that no appeal lies in the present case. 1. Code, s. 563. 2. (1953) 88 C.L.R., at p. 528.

This Court is not and cannot be a repository of powers which are neither part of the judicial power of the Commonwealth nor ancillary or incidental to the exercise of judicial power [35] . Its jurisdiction, whether appellate or original, does not include any power that is not part of the judicial power of the Commonwealth except, perhaps, its jurisdiction to entertain appeals from the Inter-State Commission as to questions of law [36] . That jurisdiction stands apart from the appellate jurisdiction which is conferred on this Court by s. 73(i) and (ii) of the Constitution and which is clearly part of the judicial power.

1. British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1925), 35 C.L.R. 422, at p. 436; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956), 94 C.L.R. 254, esp. at pp. 271-272, 296; Steele v. Defence Forces Retirement Benefits Board (1955), 92 C.L.R. 177, at pp. 186-187; Love v. Attorney-General (N.S.W.) (1990), 169 C.L.R. 307, at p. 319. 2. Constitution, s. 73(iii).

Since this Court can exercise only judicial power in hearing and determining appeals under s. 73(i) and (ii), it cannot entertain an "appeal" which can be determined only by exercise of a non-judicial power. For that reason, the only "judgments, decrees, orders, and sentences" pronounced by a State Court from which an appeal lies to this Court are those in which the appeal evokes an exercise of judicial power. If a State Court be vested with a non-judicial power, no exercise of that power can found an appeal to this Court [37] for this Court has no power available itself to make a non-judicial order in place of any non-judicial order which a State Court ought to have made at first instance.

1. Holmes v. Angwin (1906), 4 C.L.R. 297, at pp. 308-309 (but cf. pp. 307-308, 310); Federal Commissioner of Taxation v. Munro (1926), 38 C.L.R. 153, at p. 174; Webb v. Hanlon (1939), 61 C.L.R. 313, at pp. 324, 327-328, 330, 335; Jacka v. Lewis (1944), 68 C.L.R. 455, at p. 462.

As this Court cannot determine an appeal otherwise than by exercise of judicial power, an appeal can lie only from an order which is itself an exercise of "judicial power" as that term is used in s. 71 of the Constitution. The corollary is that a valid conferring of a right of appeal to this Court bespeaks an exercise of judicial power by the court from which the appeal lies. Thus, an attempt to confer a right of appeal from a Taxation Board of Appeal (a federal body that was not constituted as a Chapter III Court) to this Court in its appellate jurisdiction was held invalid [38] because it was regarded as "an unmistakable and an inseparable indication that the Board of Appeal was intended by Parliament to exercise "judicial power" " [39] . On the other hand, it is permissible to expose a decision by a federal administrative body to a review by a federal court whose decision will bind the parties to that proceeding [40] . Such a review, even if it be called an appeal, is a proceeding in the original jurisdiction [41] . The reason for attributing the character of judicial power to the review by a court of a decision by an administrative tribunal is explained by Dixon J. in Medical Board of Victoria v. Meyer [42] :

We have grown familiar with provisions in laws relating to taxation which make an administrative determination conclusive of liability subject to judicial review by some statutory proceeding. The right to a grant of letters patent or registration of a trade mark or design is dealt with in a similar way. In such cases the right derived by or liability imposed upon the subject under statute is ascertained and enforced or declared as an exercise of original jurisdiction according to a special mode of procedure. 1. British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1925), 35 C.L.R. 422. 2. Federal Commissioner of Taxation v. Munro (1926), 38 C.L.R., at p. 175, per Isaacs J. 3. Federal Commissioner of Taxation v. Munro, (1926), 38 C.L.R. 153; affd Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1930), 44 C.L.R. 530; [1931] A.C. 275; Minister for the Navy v. Rae (1945), 70 C.L.R. 339, at pp. 340-341; Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. (1959), 101 C.L.R. 652, at p. 658. 4. Federal Commissioner of Taxation v. Munro (1926), 38 C.L.R., at p. 181; Minister for the Navy v. Rae (1945), 70 C.L.R., at p. 341; Watson v. Federal Commissioner of Taxation (1953), 87 C.L.R. 353, at p. 371; Federal Commissioner of Taxation v. J. Walter Thompson (Aust.) Pty. Ltd. (1944), 69 C.L.R. 227, at p. 228. 5. (1937) 58 C.L.R. 62, at p. 92.

This Court exercises only judicial power in both the appellate and the original jurisdictions. In the original jurisdiction, judicial power is exercised in hearing and determining "matters" of the several classes mentioned in ss. 75 and 76 of the Constitution. Federal courts can be vested with jurisdiction only in those "matters" and an appeal to this Court from a federal court is thus an appeal from an order made in exercise of judicial power in hearing and determining a "matter". However, no distinction in terms of judicial power was intended between the orders of a federal court from which an appeal might lie to this Court and the orders of a State Court from which an appeal might lie to this Court. The protection of the jurisdiction of this Court in appeals from State Supreme Courts afforded by par. 2 of s. 73 relates to any appeal in any "matter" in which an appeal lay to the Queen in Council. Thus in Australian Consolidated Press Ltd. v. Uren [43] , the Privy Council admitted an appeal against so much of a decision of this Court as determined that, on a retrial of an action for damages for defamation, it was competent to award punitive damages. An order for retrial had been made in the proceedings, and the proceedings subject to that order were clearly a "matter". The appeal to the Privy Council resulted in the final determination of a question of law arising in that "matter": the appeal related "to the decision of the High Court as to the law to be applied in an actual case which is shortly to be retried" [44] . Section 73 gives no protection - for none is possible - in respect of appeals in proceedings which are not "matters".

1. (1967) 117 C.L.R. 221. 2. (1967) 117 C.L.R., at p. 229.

Appeals therefore lie to this Court under s. 73(i) and (ii) from judgments, decrees, orders, and sentences in "matters", as that term is understood in Ch. III of the Constitution. The scope of the original jurisdiction in "matters" was discussed in terms relevant to this case in In re Judiciary and Navigation Acts [45] to which reference will presently be made. But first it is desirable to consider the nature of judicial power generally. Thus we will ascertain whether the opinion of the Court of Criminal Appeal was furnished in exercise of what the Constitution recognizes as judicial power and whether an "appeal" from that opinion evokes an exercise of judicial power by this Court.

The oft-cited definition of judicial power in s. 71 of the Constitution proffered by Griffith C.J. in Huddart, Parker & Co. Proprietary Ltd. v. Moorehead [46] was "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property". And in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [47] Lord Simonds, speaking for the Privy Council, said:

It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings. The capacity to decide a controversy between parties is characteristic of the general mass of judicial power, but there are some particular categories of judicial power where there are no controversies between parties to be decided. Kitto J. pointed out in Reg. v. Davison [48] that "it would not be possible to maintain that, except where there is a controversy to be decided, there can never be a manifestation of the power to which these broad features belong". In the same case, Dixon C.J. and McTiernan J. [49] said: In the administration of assets or of trusts the Court of Chancery made many orders involving no lis inter partes, no adjudication of rights and sometimes self-executing. Orders relating to the maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and the consent to the marriage of a ward of court are all conceived as forming part of the exercise of judicial power as understood in the tradition of English law. Recently courts have been called upon to administer enemy property. In England declarations of legitimacy may be made. To wind up companies may involve many orders that have none of the elements upon which these definitions insist. Yet all these things have long fallen to the courts of justice. To grant probate of a will or letters of administration is a judicial function and could not be excluded from the judicial power of a country governed by English law. These particular categories of judicial power are acknowledged as such either because they have traditionally been vested in courts or because they are analogous to powers that have traditionally been vested in courts. These are diverse categories of judicial power but in every case their exercise affects the rights (including powers, privileges and immunities), status or obligations (including duties, disabilities and liabilities) of persons, whether natural or artificial, who are subject to the jurisdiction of the courts. 1. (1909) 8 C.L.R. 330, at p. 357; see also p. 383, per Isaacs J. 2. [1949] A.C. 134, at p. 149. 3. (1954) 90 C.L.R. 353, at p. 380. 4. (1954) 90 C.L.R., at p. 368.

There is an additional class of power, incidental to the categories of strictly judicial power, which is classified as judicial though it exhibits qualities which are ordinarily characteristic of administrative power. The Court referred to this class of judicial power in Queen Victoria Memorial Hospital v. Thornton [50] :

Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers. 1. (1953) 87 C.L.R. 144, at p. 151.

Leaving aside these incidental powers with an administrative ingredient, an essential characteristic of judicial power is that its exercise affects the legal rights, status or obligations of persons who are subject to the jurisdiction of the court or body in which the power is reposed. That characteristic is not sufficient by itself to stamp a power as judicial but it is an indispensable characteristic of all powers which are judicial. It is a characteristic which the power vested in the Court of Criminal Appeal under s. 669A to furnish an opinion does not possess. Nor does an "appeal" against the opinion evoke an exercise of judicial power. No person's rights, status or obligations are, or are capable of being, affected by the furnishing of the opinion or by any order that this Court might make on "appeal" against the opinion.

The primary meaning of matters in Ch. III of the Constitution is justiciable controversies [51] , though the term doubtless includes subjects of judicial control of the kind to which Dixon C.J. and McTiernan J. referred in Davison [52] . In In re Judiciary and Navigation Acts, a law purporting to confer on this Court jurisdiction to hear and determine questions of law referred by the Governor-General as to the validity of enactments was itself held invalid. The argument in support of the law was that "matter" meant no more than "legal proceeding". The argument was rejected [53] :

We do not accept this contention; we do not think that the word "matter" in s. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. The word "matter" is used several times in Chapter III. of the Constitution (ss. 73, 74, 75, 76, 77), and always, we think, with the same meaning. (Emphasis added.) And further [54] : The adjudication of the Court may be sought in proceedings inter partes or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved. As I read these passages, they deny that a court, exercising jurisdiction in a matter, is authorized to make declarations of the law "unless there is some immediate right, duty or liability to be established by the determination of the Court". It is only in applying the law in the determination of a "matter" that the law is judicially administered. In Fencott v. Muller, a majority of this Court (Mason, Murphy, Brennan and Deane JJ.) used the term "judicial administration of the federal law" to mean the correct application of federal law in resolving a particular claim. Their Honours went on to say that "the primary purpose of exercising judicial power is not the maintenance of legal principle: that is incidental to the determination of the dispute in hand" [55] . That primary purpose is absent in the present case. 1. Fencott v. Muller (1983), 152 C.L.R. 570. 2. (1954) 90 C.L.R., at p. 368. 3. (1921) 29 C.L.R., at pp. 265-266. 4. ibid., at pp. 266-267. 5. (1983) 152 C.L.R., at p. 609.

The principle that no appeal lies to this Court under s. 73 of the Constitution from a judicial opinion which leaves unaffected the legal situation of persons subject to the court's jurisdiction has been applied in a case where a Court of Criminal Appeal delivered an opinion relating to a point of criminal law after an accused had been acquitted (Saffron v. The Queen) and in a case where an opinion delivered by the Full Court of the Family Court was not decisive of the rights of the parties: Fisher v. Fisher. In both cases, the reasons for judgment on the application of s. 73 were unanimous. In Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [56] Barwick C.J. said:

It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. There are cases where the focus of attention has been on the question whether a judicial opinion is determinative or advisory [57] or whether, though advisory in form, it is binding on parties to pending litigation [58] . In O'Toole , the majority were concerned to show that an advisory opinion could affect the legal situation to parties to litigation [59] . But it has never been held that an appeal lies from a judicial opinion on a point of law which is not given by a court in the context of proceedings actually in train before a court, tribunal or arbitrator and which is therefore incapable of affecting the legal situation of any person. In O'Toole , that proposition was accepted [60] although Deane, Gaudron and McHugh JJ. noted that the principle "which effectively preclude[s] a direct appeal from the answers given by a full court in a case where those answers are not finally determinative of the rights of the parties" applies "[w]hile the decisions of this Court [to that effect] stand" [61] . 1. (1967) 116 C.L.R. 273, at p. 277. 2. Smith v. Mann (1932), 47 C.L.R. 426; President of India v. Moor Line Ltd. [No. 2] (1958), 99 C.L.R. 212. 3. Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. (1967), 116 C.L.R. 273. 4. (1990) 171 C.L.R., at pp. 244, 247, 280, 301. 5. (1990) 171 C.L.R., at pp. 244, 259, 281, 301. 6. ibid., at pp. 280-281.

The principle which was laid down in In re Judiciary and Navigation Acts is, in my view, a constitutional imperative which cannot, and should not, be whittled away. The effective exercise of judicial power is undermined if it be available in situations where its exercise does not affect the legal situation of persons subject to the jurisdiction of the court. In such situations, the necessity - indeed, the possibility - of hearing from a person whose legal interests will be affected by the exercise of the power is dispensed with. The focus of analysis on the legal point is likely to be blurred or, to adapt the phrase of Brennan J. in Baker v. Carr [62] , the "concrete adverseness which sharpens the presentation of issues" will be lost. In the United States, the giving of opinions which do not affect a concrete legal situation is precluded by the Supreme Court's interpretation of "Cases" and "Controversies" in Art. III of the Constitution. A rule was expressed in that context which is equally applicable to the scope of the judicial power under our Constitution:

Such opinions [abstracted from immediate considerations dispositive of a live issue], such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give. [63] 1. (1962) 369 U.S. 186, at p. 204. 2. United States v. Fruehauf (1961), 365 U.S. 146, at p. 157.

There is a more fundamental reason for insisting that judicial power be exercised only where the legal situation of persons subject to the jurisdiction is affected. If it be held that the raising of any point in a trial is a sufficient ground for referring that point to a court for an opinion to be furnished in exercise of the judicial power after the trial is complete, the Executive Government possesses the means of invoking the judicial power unopposed by a contradictor with a legal interest to be defended or asserted. That proposition, which cannot logically be restricted to the obtaining of an opinion on points of criminal law, enhances the influence of the Executive Government on the development of the law and thus diminishes the characteristic capacity of the courts to give an unprejudiced ruling to determine the rights and liabilities of subjects in controversy with Government. To compromise the courts in the discharge of that role is to diminish the guarantee of a free society. In my opinion, so serious a tampering with a constitutional safeguard is not to be justified by pragmatic considerations favouring the declaration of points of law that have been misunderstood.

That is not to say that an opinion by a Full Court to guide a trial judge in determining a question in contest in pending litigation is necessarily outside the scope of judicial power or is not part of the "matter" between the parties [64] , but that is not the present case. There is no pending litigation. Although a new trial is threatened and the Attorney-General is seeking a curial ruling in advance of that trial, the power to furnish an opinion under s. 669A is wholly unconnected with any future proceeding. Nor is it relevantly connected with the aborted trial. The determination of the point of law which resulted in the nolle prosequi was, as s. 669A(2) provides, a condition of the power of the Attorney-General to refer the point of law to the Court of Criminal Appeal but the trial judge's ruling and the nolle prosequi are unaffected by the furnishing of the opinion to the Attorney-General. The precedential value of a trial judge's determination of a point of law can be replaced by the precedential value of a contrary opinion of the Court of Criminal Appeal furnished under s. 669A but such an opinion does nothing to rectify the effect of any error of law which occurred at the trial. The opinion does not reinstate the trial to be continued in accordance with the opinion. Unlike an appeal or other form of judicial review, the furnishing of an opinion does not affect the legal situation of any person. Lacking the capacity to affect the legal situation of any person, I would see the function of the Court of Criminal Appeal under s. 669A as entirely divorced from the judicial administration of the law as that term is used in In re Judiciary and Navigation Acts. It follows that I would hold that no appeal lies from the opinion of the Court of Criminal Appeal and that the application for special leave to appeal should be dismissed as incompetent.

This is a minority view. As the majority would grant special leave to appeal and hold that an appeal lies, I should state my opinion on the questions ((a) and (c)) referred to and answered by the Court of Criminal Appeal. For the reasons stated by their Honours in the majority, I agree that the Court of Criminal Appeal gave the correct answers to questions (a) and (c). Had I been of the opinion that an appeal lay to this Court, I would have joined in the order granting special leave to appeal and dismissing the appeal.

The circumstances giving rise to this application for special leave to appeal and the relevant provisions of The Criminal Code Q. ("the Code") appear in the judgment of Mason C.J., Deane, Dawson, Gaudron and McHugh JJ.

I agree with their Honours that there should be special leave to appeal but that the appeal should be dismissed. So far as the substantive matters are concerned - the time limits of the Fitzgerald Inquiry and the test for materiality under s. 123 of the Code - I have nothing to add to what their Honours have said. And, while I agree with their conclusion that the objection to jurisdiction should be overruled, I wish to say something on this aspect.

The issue is whether the decision of the Court of Criminal Appeal of Queensland, made on a reference by the Attorney-General pursuant to s. 669A(2)(b) of the Code, falls within the language of s. 73 of the Constitution which confers on the High Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences" [65] .

1. As to the origin of these words, see R. v. Snow (1915), 20 C.L.R. 315, at p. 322.

On a number of occasions the Court has said that an appeal under s. 73 is not competent unless the decision sought to be appealed determines the rights and obligations of the parties to the litigation [66] . In amplification of that principle, the Court has held that an appeal from answers given on a special case or case stated is not competent unless the answers finally determine the rights of the parties concerned [67] .

1. Smith v. Mann (1932), 47 C.L.R. 426, at pp. 445, 446, 453-454; Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. (1967), 116 C.L.R. 273, at pp. 277-279, 281-282, 285-286, 288, 292; Fisher v. Fisher (1986), 161 C.L.R. 438, at p. 450; Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation (1987), 163 C.L.R. 421, at p. 425; and see Yule v. Junek (1978), 139 C.L.R. 1, at p. 14. 2. Fisher (1986), 161 C.L.R. 438; Swiss Aluminium (1987), 163 C.L.R. 421.

The proposed appeal in the present case is not from answers given on a special case or case stated. It is from answers given by the Court of Criminal Appeal to questions posed by the Attorney-General's reference under s. 669A(2)(b) of the Code. Those answers were given after evidence in the applicant's trial had concluded and after the Crown had entered a nolle prosequi, following rulings by the trial judge relating to the time limits of the Inquiry and the test for materiality. The Crown later told the applicant, in effect, that if the answers given by the Court of Criminal Appeal were as sought by the Crown, another indictment would be presented against him on the charge of perjury.

In O'Toole v. Charles David Pty. Ltd. [68] members of the Court expressed reservations as to the correctness of Fisher and Swiss Aluminium. But the Court was not asked to overrule those decisions and a decision as to their correctness was not necessary to dispose of the proceedings which had been removed into the Court. In the present case objection has been taken to the jurisdiction of the Court. It is necessary, therefore, to review the correctness of some earlier decisions and, further, to consider whether in any event they should stand after this time.

A convenient starting point is In re Judiciary and Navigation Acts [69] in which the Court declared invalid Pt XII of the Judiciary Act 1903 Cth which purported to give to the High Court jurisdiction to hear and determine any question referred to it by the Governor-General as to the validity of any enactment of the Parliament. The Court accepted that the function of making an authoritative decision on the validity of legislation was judicial but held that it was not part of the judicial power of the Commonwealth, there being no "matter" in terms of the relevant sections of the Constitution. Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. referred to ss. 75, 76 and 77 of the Constitution and concluded [70] :

This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. 1. (1921) 29 C.L.R. 257. 2. ibid., at p. 265.

This passage, which lies at the heart of the decision in In re Judiciary and Navigation Acts, does not directly touch the present problem which goes to the appellate jurisdiction of the High Court. Indeed, their Honours said [71] :

Secs. 73 and 74 deal with the appellate power of the High Court, and we need make no further reference to those sections. But, underlying the decision is a rejection of the view that "Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved" [72] and, at least so far as original jurisdiction is concerned, the proposition that "the use of the judicial power [of the Commonwealth] was approved only when it was used for the purpose of effecting or assisting in effecting a settlement of existing claims of right under the law of the Commonwealth" [72] . 1. ibid., at p. 264. 2. (1921) 29 C.L.R., at p. 267. 3. (1921) 29 C.L.R., at p. 267.

The situation in the present case is quite different. The appellate jurisdiction of the Court is at issue. And the Court is not asked to determine abstract questions of law in which no body or person is involved; the questions the subject of the proposed appeal are concrete and specific, asked in relation to matters which arose on the trial of the applicant. Furthermore, those questions were asked with a view to resolving an issue raised by the Crown as to the correctness of the law to be applied to the charges made against the applicant, even though a nolle prosequi had been entered in respect of those charges. It is important to appreciate that what is involved in the present case is different in character from what was held to be impermissible by the Court in In re Judiciary and Navigation Acts. In that case, although the Court held that the declaration asked of it, "not merely an opinion but an authoritative declaration of the law" [73] , was "clearly a judicial function" [73] , it was outside the scope of the original jurisdiction conferred on the Court by the Constitution, and for that reason not part of the judicial power of the Commonwealth.

More directly in the path of the applicant stands Saffron v. The Queen [74] . The applicant in that case had been acquitted of a charge of giving false testimony at a Royal Commission. At the request of the Crown, the trial judge reserved for decision by the Court of Criminal Appeal of New South Wales questions as to the admissibility of evidence. He did so in accordance with a statutory provision that empowered him to reserve for the decision of the Court of Criminal Appeal "any question of law arising at or in connexion with the trial". In the opinion of Dixon C.J. [1] , with whom Kitto and Taylor JJ. agreed, the decision of the Court of Criminal Appeal "cannot affect the rights of the person who has been acquitted, or his liabilities. It can operate only as a judicial precedent That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability."

Although Dixon C.J. did not mention In re Judiciary and Navigation Acts, the decision was cited in the argument of counsel and it seems that the Chief Justice was of the view that the Court was being asked to do no more than express an advisory opinion. Indeed, he said [2] :

When a court is authorized by legislation to give an advisory opinion, no matter what language is used, its opinion is not a judgment, decree, order or sentence from which an appeal lies. But, it may not always be enough to ask whether the High Court is being asked to hear an appeal from an "advisory opinion" for that is an expression which itself needs definition. In In re Judiciary and Navigation Acts the Court did not regard itself as being asked to express an advisory opinion. That is clear from the passages quoted earlier in this judgment. 1. (1953) 88 C.L.R., at pp. 527-528.

In the context of the present application, reference to "advisory opinion" serves only to cloud the issue. The expression has been taken to mean an opinion "rendered by a court at the request of the government or an interested party indicating how the court would rule on a matter should adversary litigation develop" [3] . There are no parties and no issues as ordinarily understood. The question here is whether, in terms of s. 73, there has been a judgment, decree, order or sentence from which it is sought to appeal. "The four words taken together are clearly wide enough to include every judicial decision, final or interlocutory, in every jurisdiction, civil or criminal." [4] The cumulative effect of the words used indicates that no narrow operation was intended. For present purposes it is enough to speak of a judgment.

1. West's Law and Commercial Dictionary (1985), p. 51. 2. Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 741.

This is much the way the argument was put by Sir Garfield Barwick on behalf of the applicant in Saffron . He said [5] :

The question to be decided is whether there is here a judgment; not whether there is here a judgment which is formative or determinative of some right of the applicant. To put the matter that way places the focus of inquiry on what is meant by judgments in s. 73 of the Constitution [6] . And, in my respectful view, that is what the language of s. 73 demands. The existence of a "matter" is the touchstone of the original jurisdiction of the High Court, rather than of its appellate jurisdiction. 1. (1953) 88 C.L.R., at p. 526. 2. A note of relevant decisions in this regard appears in Ah Toy v. Registrar of Companies (1985), 10 F.C.R. 280, at pp. 285-286.

In Driclad Pty. Ltd. v. Federal Commissioner of Taxation [7] Barwick C.J. and Kitto J. said of s. 73 of the Constitution:

The word "judgments" in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment. The emphasis there is on "operative judicial acts". The matter had been put in somewhat different terms by Barwick C.J. in Minister for Works v. Civil and Civic [8] when he said: It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. In that case the Court held as incompetent an appeal from a decision of the Full Court of the Supreme Court of Western Australia given on appeal from the answer to a question stated for the opinion of a judge in the course of a building arbitration. It should be noted that the question asked of the judge related to the mode of measuring distance for the purpose of calculating the mileage for cartage. In the view of the majority, the answer given by the Full Court was, in the circumstances of the relevant legislation, no more than the giving of its opinion for the opinion given by the primary judge and was not within the terms of s. 73 of the Constitution. It is of interest to observe that the headnote to the report speaks of "advisory opinion". Both "advisory opinion" and "opinion" appear in the judgments. It is apparent from a reading of the judgments that "advisory opinion" is not there used in the sense discussed earlier in this judgment but rather to identify something which is not binding on the parties. 1. (1968) 121 C.L.R. 45, at p. 64. 2. (1967) 116 C.L.R., at p. 277.

In Smith v. Mann the Court held that a decision of the Supreme Court of New South Wales, given after the making of an award by the Workers' Compensation Commission based on a certificate from a medical board, was not an advisory or consultative opinion but was a final determination of the rights of the parties. An appeal to the High Court was therefore competent.

It is necessary to mention two other decisions of this Court. In Fisher it was held that answers given by the Full Court of the Family Court on a special case stated by a judge of the Family Court, not of themselves decisive of the rights of the parties, did not constitute a judgment for the purposes of s. 73 of the Constitution so as to ground an appeal to the High Court. In that case the special case asked only whether certain provisions of the Family Law Act 1975 Cth were valid. In Swiss Aluminium the Court held incompetent an appeal from a decision of the Full Court of the Federal Court which determined, on a case stated, that a document was an exempt document under the Freedom of Information Act 1982 Cth. In the view of the Court, the decision of the Full Court did not "finally determine the appellant's right of access to the document" [9] .

As is apparent, some of the earlier judgments have understood the question of appealability to turn on the distinction between advisory opinion and decision finally determinative of the rights of the parties. But to pose such a distinction is to proffer a dichotomy which is not complete. A court may give an answer to a question which does not finally determine the rights of the parties but which is not merely advisory. An answer which binds the parties and which operates on the litigation in which they are involved, in the sense that the course of the litigation must accord with that answer, may be a judgment within s. 73 of the Constitution, even though it is not finally determinative of the rights and obligations of the parties. This view of s. 73 is, I think, implicit in the observation of Gibbs C.J. in Fisher [10] :

It has been held that an appeal will not lie to this Court under s. 73 of the Constitution from a judicial opinion which is advisory and which leaves the legal situation of the parties unaffected and does not by itself operate to affect in some way the parties' mutual rights and obligations: Saffron v. The Queen; Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. (Emphasis added.) 1. (1986) 161 C.L.R., at p. 450.

In this regard the distinction between final and interlocutory orders is not relevant to the operation of s. 73 except perhaps indirectly as bearing upon the Court's willingness to grant special leave to appeal. In either case, the decision of the court from which it is sought to appeal is binding upon the parties and this is so even if the decision takes the form of answers given on a special case or on a case stated [11] .

1. See O'Toole (1990), 171 C.L.R., at pp. 245-247, per Mason C.J.; p. 302, per Dawson J.

The present case is different from those mentioned earlier in this judgment, save for Saffron . The power to refer to the Court of Criminal Appeal is a power to refer "any point of law that has arisen at the trial " [12] (emphasis added). It may be invoked only if the person indicted has been acquitted of the charge or has been discharged after the Crown, as a result of a determination of the trial judge on a point of law, has informed the court that the Crown will not proceed upon the indictment.

1. s. 669A(2) of the Code. As to "arisen", see Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925), 36 C.L.R. 442, at pp. 450-452.

As indicated earlier, the applicant was not acquitted; he was discharged. It is true that the answers by the Court of Criminal Appeal do not represent a final determination of the applicant's rights. But they cannot, as was suggested by the respondent, be characterized as advisory only. The points of law which gave rise to the questions asked of the Court of Criminal Appeal necessarily arose at the applicant's trial and the decision by the Crown not to proceed further upon the indictment and the decision to discharge the applicant were necessarily made "as a result" of the trial judge's determination on those points. The reference to the Court of Criminal Appeal was aimed at testing the correctness of the trial judge's rulings. The answers were given with reference to the specific circumstances of the charge against the applicant. Section 669A(3) of the Code required that notice of the reference be given to the applicant. Section 669A(4) permitted him to be heard on the points of law referred and he was heard. The applicant had a direct interest in preventing an unfavourable ruling which might cloud his discharge or bear adversely on his reputation. Furthermore, while I agree with Mason C.J., Deane, Dawson, Gaudron and McHugh JJ. that appealability does not depend upon a decision by the Crown to present a fresh indictment, nevertheless the availability of a fresh indictment is a consideration. It points up that, in a very relevant sense, proceedings against a person discharged in the circumstances mentioned in s. 669A(2)(b) of the Code cannot be regarded as necessarily concluded.

It follows then that, although the answers given by the Court of Criminal Appeal cannot be said to be a final determination of the rights of the parties, they resulted from an exercise of judicial power in relation to points of law arising at the applicant's trial; they were sought by the Crown as the only means open to it to correct errors of law which the Crown contended had been made by the trial judge at trial; and they carried adverse implications for the applicant. If not capable of appeal to this Court, the answers given by the Court of Criminal Appeal that the rulings which led to the entry of a nolle prosequi against the applicant were made in error must stand unchallenged.

What I have written may suggest that, in terms of s. 669A(2)(b), the position of an accused who has been discharged is stronger than that of a person who has been acquitted, when it comes to the operation of s. 73. That may be. However, that is not to say that one case is appealable but not the other. It is not necessary to resolve that issue. But, in the case of a person discharged, the language of par. (b) of s. 669A(2) - identifying a necessary connexion between the trial judge's decision on points of law, the consequential discharge of the accused and the points referred to the Court of Criminal Appeal - together with the availability of a further indictment are powerful reasons for treating answers of the Court of Criminal Appeal as a "judgment" within s. 73 of the Constitution. In either case, discharge or acquittal, the procedure employed is part of the judicial process and represents a "useful and now commonplace procedure for correcting error of law in criminal proceedings without undue infringement of the rule against double jeopardy" [13] . All these considerations lead me to conclude that, in the present case, the interests of the applicant and the respondent are sufficiently affected by the answers of the Court of Criminal Appeal as to constitute those answers a judgment of that Court for the purposes of s. 73 [14] .

1. O'Toole (1990), 171 C.L.R., at p. 284. 2. The question of appeals from "not guilty" verdicts in criminal cases, whether by direction or otherwise, is discussed briefly in Renfree, Federal Judicial System of Australia (1984), p. 273. That question does not arise here.

It follows that, in my view, Saffron was wrongly decided and should be overruled. It is unnecessary and inappropriate to consider overruling Fisher and Swiss Aluminium because they are not directly in point. But I am of opinion that those decisions should be reconsidered in so far as they held that no appeal lies to this Court from answers given to a special case or case stated when those answers do not determine the parties' rights, even when the answers are binding on the parties and affect them in the course of the litigation in which they are involved. In John v. Federal Commissioner of Taxation [15] the Court discussed its power to review and depart from its previous decisions. There is no need to repeat what is said there except to note that none of the considerations that militate against departure precludes such a course in the present case. More importantly, we are concerned in the present case with the construction of a provision of the Constitution. While it has been said that, even in constitutional cases "it is obviously undesirable that a question decided by the Court after full consideration should be re-opened without grave reason" [16] , it has also been said that the reasoning of the Court in an earlier judgment on a constitutional question "may not be used as a substitute for the Constitution" [17] .

1. (1989) 166 C.L.R. 417, at pp. 438-440, 450-452. 2. Hughes and Vale Pty. Ltd. v. New South Wales (1953) 87 C.L.R. 49, at p. 102, per Kitto J. 3. Damjanovic & Sons Pty. Ltd. v. The Commonwealth (1968) 117 C.L.R. 390, at p. 396, per Barwick C.J.

In Queensland v. The Commonwealth [18] Aickin J. reviewed the circumstances in which an earlier decision of the High Court may be overruled and summarized the characteristics "which assist in the determination of the question whether a previous constitutional decision regarded as erroneous may, or should, be overruled" [19] . It is unnecessary to refer to those considerations in any detail. Saffron was decided in a particular statutory context. Until the decision in O'Toole , it appears to have been mentioned only twice in the judgments of the High Court. The first occasion was in Minister for Works v. Civil and Civic [20] where Kitto J. quoted a passage emphasizing that when a court is authorized to give an advisory opinion, the opinion is not a judgment from which an appeal lies. If advisory opinion is understood in the sense identified in the present judgment, it is easy to understand Kitto J.'s reference. The second occasion was in Fisher , in the passage from the judgment of Gibbs C.J. quoted earlier, which gives Saffron a limited operation. Thus it cannot be said that Saffron is part of a "stream of authority" [19] ; it can be confined to the precise question which it decided. The present case is concerned with a provision of the Constitution couched in broad terms and which bears directly upon the appellate jurisdiction of the High Court. If the Court is of the opinion that the decision in Saffron does not accord with the Constitution, there is no compelling reason for allowing the decision to stand. It should correct the error.

1. (1977) 139 C.L.R. 585, at pp. 620-630. 2. ibid., at p. 630. 3. (1967) 116 C.L.R., at p. 282. 4. ibid., at p. 630.

None of what I have written is intended to suggest that the appellate jurisdiction of this Court is capable of being controlled by the legislation under which (as in the present case) the Supreme Court has acted. The question is always whether what is appealed from answers the language of s. 73 of the Constitution; that in turn presupposes that it is an exercise of judicial power that is sought to be challenged and that there are parties affected by the decision. The conclusion that the answers of the Court of Criminal Appeal fall within s. 73 depends very much upon the terms of the relevant legislation and its implications for the parties.

It may be thought that the approach taken in this judgment casts the net of s. 73 widely and that the result will be to involve the High Court in proceedings which are effectively concluded or which are still incomplete and will thereby be unduly interrupted. But that is to minimise the operation of the special leave procedure [21] , including the expressed reluctance of the Court to entertain applications for special leave during the currency of a proceeding [22] or when there is no longer a live issue between the parties.

1. Judiciary Act 1903 Cth, s. 35A. 2. See Yates v. Wilson (1989), 168 C.L.R. 338; Coco v. Shaw (1991), 11 Legal Reporter p. C1 in relation to committal proceedings.

I would grant special leave to appeal but would dismiss the appeal.