Peel v The Queen

Peel v The Queen - [1971] HCA 59 - HCA 1971 case summary — Zoe

[18]

Turning to the actual words of the amendment, there is, in my opinion, a fundamental distinction between a conviction and the sentence imposed in respect of it. In my opinion, neither an appeal against acquittal nor an appeal against sentence is an appeal "arising out of the trial" which results in the conviction, nor is an appeal against sentence an appeal against or "arising out of" the conviction. Further in my opinion neither an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial: nor is an appeal against sentence an appeal arising out of any proceedings connected with the conviction. To remove the consequence of the decision in Seaegg v. The King [1] it was sufficient to deal with appeals arising out of the trial and conviction: these are the words chosen by the Parliament. I am unable to accept the view that a draftsman intending to provide for appeals against sentence would not have expressly included, "sentence" in the description of the appeals for which provision was being made: or that a draftsman would consider that description of appeals as apt to include an appeal against sentence: or that it was apt to include an appeal against an acquittal. But perhaps more importantly, I am unable to accept the view that by the words of the amendment the Parliament intended to give to the Attorney-General of the Commonwealth in respect of Commonwealth offences prosecuted in one particular State the right to apply for a review of the sentence imposed or to appeal against an acquittal. In this connexion it is noticeable that "the State statutes contain specific references to the Attorney-General of the State" and in the case of the statute of New South Wales "to the Minister of Justice" which not only places the right of that Attorney-General in a singular position but makes it clear in my opinion that the right is not given to the Crown to be exercised by some appropriate officer: it is given to the Attorney-General: see Seaegg v. The King [1] .

[34]

The applicant pleaded guilty before a special court of petty sessions to an offence against the Commonwealth Customs Act in that at Sydney he had imported into Australia a prohibited import, namely a quantity of cannabis, that being an import to which s. 233B of the Customs Act applies. He was committed to quarter sessions for sentence and the learned chairman imposed a fine of $400 and allowed the applicant six months to pay it. The Attorney-General of the Commonwealth appealed against the sentence to the New South Wales Court of Criminal Appeal on the ground that it was inadequate. The point was taken that no such appeal lay at the instance of the Attorney-General of the Commonwealth. The Court of Criminal Appeal overruled the objection, set aside the penalty imposed by the chairman of quarter sessions and substituted for it a term of imprisonment [1] . Special leave to appeal against the order of the Court of Criminal Appeal is now sought, the first point being that that Court should have held that the appeal by the Attorney-General of the Commonwealth was incompetent. This raises the question whether s. 68 (2) of the Judiciary Act, when read with the New South Wales Criminal Appeal Act and particularly with s. 5D of that Act, operates so as to enable the Attorney-General of the Commonwealth to appeal against a sentence imposed upon a person convicted of an offence against a law of the Commonwealth. That same question came before this Court in Williams v. The King [No. 2] [2] and on it the Court was equally divided, Gavan Duffy C.J. and Evatt and McTiernan JJ. being of opinion that no such appeal lay, while Rich, Starke and Dixon JJ. took the contrary view. In the result the judgment of the Court of Criminal Appeal [3] , delivered by Jordan C.J., stood, that Court having held that the Attorney-General of the Commonwealth had a right of appeal against a sentence imposed by the Supreme Court or a court of quarter sessions for a breach within New South Wales of a Commonwealth law.

[39]

of offenders or persons charged with offences against the laws of the State, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State After pointing out that if these provisions were read as confining the jurisdiction of the Court of Criminal Appeal to hearing appeals by persons designated by the State Act, they would be "nugatory" since neither persons convicted of offences against the laws of the State nor the Attorney-General of New South Wales "could have any concern with appeals arising out of trials or convictions for offences against the laws of the Commonwealth", Jordan C.J. went on to say [1] : I think that what s. 68 (2) says is that when you have an offence against a law of the Commonwealth then as regards the person charged therewith this Court has - not the same but - a "like" appellate jurisdiction as it has in the case of a person charged with an offence against the law of a State. I think that it is involved in this, that the person charged may appeal notwithstanding that he does not come within s. 5 (1), because not convicted on a New South Wales indictment; and I think that it also follows that the person concerned on behalf of the Crown with the prosecution of offenders may appeal notwithstanding that he does not come within s. 5D because he is not the New South Wales Attorney-General, I think that by s. 5D the right of appeal is given to the Attorney-General of New South Wales in the character of the person responsible for the indictment; just as the right of appeal is given to the person convicted on the New South Wales indictment in the character of the person damnified by the conviction. I am of the opinion therefore that by virtue of the combined operation of s. 68 (2) of the Judiciary Act, 1903-1932 and of ss. 5 and 5D of the Criminal Appeal Act of 1912 an appeal may be maintained to this Court, to the extent indicated in the latter sections, by the parties concerned in the conviction, that is to say by the person convicted on indictment on the one hand and by the Attorney-General of the Commonwealth as representing the Crown on the other. 1. (1934) 34 S.R. (N.S.W.), at p. 152; 51 W.N., at pp. 26-27.

[52]

But in order to establish a right in the Attorney-General of the Commonwealth to appeal against the sentence imposed in the present case upon the applicant, it is necessary to go further than to say that the words used in s. 68 (2) are wide enough to describe appeals which include appeals against sentence. The Criminal Appeal Act provides for an appeal by a person convicted on indictment, with the leave of the Court, against the sentence passed on his conviction: see s. 5 (1) (c). When that Act was first enacted, that was the only appeal against sentence which could be brought. By an amendment made in 1924, by which s. 5D was inserted in the Act, an additional right of appeal against a sentence was given. It was given to the Attorney-General of the State but to no one else. It was said in R. v. Williams; R. v. Somme [2] , that that right was given to the Attorney-General "in the character of the person responsible for the indictment". In Williams v. The King [No. 2] [1] , Dixon J. said that the right was given to him in virtue of his office and that he is the proper officer of the Crown in right of the State for representing it in courts of justice. No doubt it is probable that the Attorney-General was selected by the Parliament of New South Wales as the person upon whom the right of appeal should be conferred for the reason that he is responsible, directly or indirectly, for the prosecution of indictable offences against State laws and for the presentation of the indictments, although commonly these are presented by prosecutors to whom authority to do so has been given. See Crimes Act, 1900, as amended, N.S.W., s. 572, and see Commonwealth Life Assurance Society Ltd. v. Smith [2] . But although that may well have been the reason for the designation of the Attorney-General as the person who might appeal against sentence, the right of appeal was not conferred in terms which referred to the position of the Attorney-General as the representative of the Crown in right of the State in the courts of the State or to his responsibility for the prosecution of indictable offences. The right is not expressed to be given to the Crown or to the prosecutor or to the person who has filed or presented the indictment. It is given simply to the Attorney-General.

[54]

The Judiciary Act does not designate the Attorney-General of the Commonwealth as a person having a right to invoke the jurisdiction of the court of a State to hear and determine appeals arising out of any trial or conviction or out of proceedings connected therewith. It may be that when s. 68 (2) was enacted it was desired by the Parliament that in all respects there should be an assimilation of the criminal procedure, including remedies by way of appeal, in relation to State and federal offences: see Williams v. The King [No. 2], per Rich J. [3] . But, in my opinion, whatever the Parliament may have wished to do, the language used in the provision is not apt to give a right of appeal against sentence to the Attorney-General of the Commonwealth. There are no words conferring that right. If it were necessary to treat it as being impliedly conferred, in order that the amendment to s. 68 (2) made in 1932 should not be rendered nugatory, I should be willing to hold that the implication should be made. But this is not necessary. Without that implication, the amendment has an effective operation in removing the disability of a person convicted of a Commonwealth offence, which had been revealed by Seaegg's Case [1] . The amendment may be regarded, also, as having an effective operation, in so far as its language includes (as, in my opinion, it does) a reference to the jurisdiction of the courts of a State to hear and determine appeals against sentence, by treating it as enabling the convicted person to invoke that jurisdiction. In my opinion it would not be right to regard the provision as requiring that, in addition, an implication should be made that the Attorney-General of the Commonwealth is entitled to invoke the jurisdiction of the Court to hear appeals against sentence. In Williams v. The King [No. 2] [2] , Dixon J. said that s. 68 (2) "recognizes that the adoption of State law must proceed by analogy". With respect, I do not dispute that statement. But its acceptance does not mean, in my opinion, that the provision must necessarily be construed as adopting by analogy the whole of the State law relating to appeals against sentence. The use in the provision of the words "the like jurisdiction" does not show, in my opinion, a clear intention that in all respects the laws of the State relating to appeals against sentence are to be applicable in relation to Commonwealth offences. A right given by the State law to a specified person, namely, the Attorney-General of the State, and to him alone, ought not to be regarded, in my opinion, as being made available by the Judiciary Act, in relation to offences against the laws of the Commonwealth, to a different person, namely, the Attorney-General of the Commonwealth, in the absence of any statement in the provision of an intention that he should have such a right.

[67]

In deciding between the conflicting views expressed on this subject in Williams v. The King [No. 2] [1] three questions must be considered. The first is whether s. 68 (2) gives any right of appeal at all. The section confers on State courts exercising jurisdiction with respect, inter alia, to the hearing and determination of appeals arising out of the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State the like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth but does not, in terms, confer on such persons a right of appeal. In Williams v. The King [No. 2] [2] , Gavan Duffy C.J. said that the relevant words of s. 68 (2) "deal with the power and jurisdiction of the Court to hear and determine an appeal when an appeal has been instituted, not with the right of the Crown or the accused person to institute an appeal", but with great respect I find it impossible to accept this view, which would mean that the section gives a jurisdiction which cannot be exercised because no one can invoke it. Such a view would fail to give sufficient weight to "the occasion of the amendment", which as Rich J. said (in Williams v. The King [No. 2] [2] ), "gives a colour to its language". I respectfully prefer the view of Dixon J. that a provision conferring jurisdiction to hear and determine appeals is "open to an interpretation by which it gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them" [3] , and consider that the interpretation which Gavan Duffy C.J. gave to the section would defeat the clear object of the legislature. To reach this conclusion of course does not resolve the whole matter, since the defect in the law revealed by Seaegg v. The King [1] was that it gave no right to a person convicted of an offence against the law of the Commonwealth to appeal to the Court of Criminal Appeal of a State and although it is clear that the intention of the amendment was to remedy this deficiency it does not necessarily follow that it was intended that the Attorney-General of the Commonwealth should be given the right to appeal against a sentence thought to be inadequate.

At a glance

Court

Decision date

Before

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Judgment (74 paragraphs)

Parties

Cases Cited (1)