Pantorno v The Queen

Pantorno v The Queen - [1989] HCA 18 - HCA 1987 case summary — Zoe

[22]

However, a concession was made by counsel for the Crown in the course of argument in this Court which, if made in the Full Court, would have sufficed to establish the second of the grounds of appeal to that Court. On being pressed to respond to the proposition that the Crown did not contest the view stated in the County Court by counsel for the applicant that s. 73(1)(b) was the relevant provision, counsel for the Crown replied: "I think your Honours have got to take that view because nothing was said by them." When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd. v. Environment Secretary [7] . Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer. The concession, if accepted, places a different complexion on the proceedings in the County Court. There is no reason why the concession should not be accepted; it is consistent with the record of proceedings in that Court. Once it is accepted that the proceedings before the learned sentencing judge were conducted by the Crown and counsel for the applicant on the footing that s. 73(1)(b) was the relevant provision of the statute, it follows that the judge was not entitled to sentence on the footing that s. 73(1)(c) was the relevant provision without giving the applicant's counsel an opportunity to show why the applicant was not liable to the larger penalty prescribed by s. 73(1)(c). Bridges [8] is irrelevant to this view except that it may explain how counsel for the Crown came to agree that s. 73(1)(b) was the appropriate provision. This approach does not depend upon proof that counsel for the applicant was misled by reliance on Bridges .

[25]

There remains a question of some importance. If the issue of natural justice was not argued before the Full Court, can it be said that there was some error in the judgment of that Court? If there were no error affecting the judgment of the Full Court, there is no jurisdiction in this Court to set aside the Full Court's judgment. (By "judgment" we mean the order made, not the reasons assigned for making it.) The jurisdiction of this Court, once special leave to appeal is given, is to pronounce the judgment or order which the Full Court sitting as a Court of Criminal Appeal should itself have pronounced: Craig v. The King [9] . Although that jurisdiction is as extensive as the jurisdiction of the Court of Criminal Appeal itself, it may be that this Court does not have jurisdiction to set aside a judgment correctly and regularly pronounced when the only ground which might warrant the allowing of an appeal is raised for the first time in this Court. Whether the Court's reluctance to entertain such a ground has its foundation in an absence of jurisdiction or in a discretionary rule or rule of practice is a question which this Court left unresolved in Hicks v. The King [10] ; see also Banbury v. Bank of Montreal [11] ; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [12] (where Dixon J. considered that the speech by Lord Atkinson in Banbury was more appropriate to the exercise of original rather than appellate jurisdiction). As this question was not argued, it would be undesirable now to attempt to resolve it. And, in the circumstances of this case, it is unnecessary to do so. However the question be resolved, it can be said that there is a general rule - of practice or discretion, if not of jurisdiction - that this Court will not ordinarily set aside a judgment correctly and regularly pronounced when the only valid ground of appeal is raised for the first time in this Court. Grounds of appeal are not narrowly construed but they never the less confine the issues which, in any curial proceeding of an adversarial kind, define what the court is to decide. And even when a point which counsel seeks to argue in this Court for the first time can be seen to fall within the grounds of appeal to an intermediate appellate court, this Court will not give effect to the point if evidence could have been given in the court below which by any possibility could have prevented the point from succeeding: Coulton v. Holcombe [13] . But, absent such a possibility, there are some cases in which it is expedient in the interests of justice to allow a point to be raised on appeal which was not argued in the court below: see O'Brien v. Komesaroff [14] .

[37]

At the time when the applicant was sentenced in the County Court, the decision of the Victorian Court of Criminal Appeal in Reg. v. Bridges [16] stood as authority for the proposition that a sentencing judge "is without jurisdiction to sentence a person convicted of possession on the basis that" the maximum penalty is the higher term of imprisonment set out in s. 73(1)(c) (i.e. five years as distinct from the one year set out in s. 73(1)(b)) unless there is a positive " finding, whether by verdict or otherwise", that "possession of the drug was for a purpose relating to trafficking" [17] ; (emphasis added). In Bridges , the Court of Criminal Appeal was dealing with certain questions reserved for its consideration pursuant to s. 446 of the Crimes Act 1958 Vict. An application for special leave to appeal to this Court was refused on the ground that "an appeal does not lie from a mere answer to a question of law when the answer is not by itself decisive of the rights and obligations of the parties": Reg. v. Bridges [18] . However, in refusing special leave, the Court drew attention [19] to the fact that the provisions of s. 73(1)(b) applied to provide for the lower maximum penalty of one year's imprisonment only in a case where the court was " satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking" (emphasis added) and suggested that the Court of Criminal Appeal might, in an appropriate case, "reconsider the construction of the section". As the Full Court pointed out in the present case, the decision in Bridges [20] was based upon a categorization of s. 73(1)(b) and (c) as provisions turning upon the absence or presence of circumstances of aggravation whereas a careful examination of the language of s. 73(1) discloses that the circumstances specified in s. 73(1)(b) are circumstances of mitigation which the accused must establish on the balance of probabilities. None the less, the judgment in Bridges was plainly binding on the learned judges of the County Court and had led to a common practice among Crown Prosecutors in Victoria of including, in a presentment alleging an offence under s. 73(1), an averment that the offence was committed for a purpose related to trafficking if the case was one in which the Crown might wish to suggest that the appropriate maximum sentence was other than the lesser sentence specified in s. 73(1)(b).

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Before

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Judgment (50 paragraphs)

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