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[1971] HCA 59
High Court of Australia
1971-07-01
Gibbs JJ, McTiernan J, Gibbs J, Menzies J, Windeyer J
Original judgment source is linked above.
The applicant for special leave to appeal pleaded guilty before a court of quarter sessions in Sydney, New South Wales, of an offence against the Customs Act 1901-1968 Cth. The learned chairman of quarter sessions imposed upon the applicant a fine of $400. The Attorney-General of the Commonwealth applied to the Court of Criminal Appeal of New South Wales to increase the penalty thus imposed. For the applicant it was submitted to that Court that the Attorney-General of the Commonwealth had no right to make such an application and that the Court of Criminal Appeal had no jurisdiction to entertain it. However, relying on a combination of s. 68 (2) of the Judiciary Act 1903-1959 Cth and s. 5D of the Criminal Appeal Act, 1912 N.S.W. the Court of Criminal Appeal refused to accept the submission (1). It entertained the Attorney-General's application and substituted a sentence of imprisonment for a period of three years for the fine imposed by the court of quarter sessions.
The applicant now seeks special leave to appeal to this Court against this order of the Court of Criminal Appeal [1] . The intended ground of appeal, if special leave should be granted, is that the Attorney-General's said application was incompetent and the Court of Criminal Appeal lacked jurisdiction to hear it and to make the order it made.
The matter is clearly one for the grant of special leave as the point raised is one of general public significance which this Court has not so far resolved. On 21st September 1932 this Court decided that under the Judiciary Act 1903-1927 Cth, the only right of appeal of a person convicted in a State court of an offence against the laws of the Commonwealth was as provided by s. 72 of the Judiciary Act. Consequently it was held that s. 39 (2) and s. 68 (2) of the Judiciary Act 1903-1927 did not operate to confer jurisdiction on the Court of Criminal Appeal of a State to hear an appeal against his conviction by such a person under the provisions of a State Act: Seaegg v. The King [1] .
On 5th December 1932 the Parliament passed the Judiciary Act Amendment Act 1932 Cth (No. 60 of 1932). It amended s. 68 (2) of the Judiciary Act 1903-1927 so that it now provides:
(b) the examination and commitment for trial on indictment; or
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, or who may lawfully be tried within the State for offences committed elsewhere.
In November 1933 this Court decided that the Court of Criminal Appeal of the State of New South Wales could not at the instance of the Attorney-General of the State alter the sentence imposed upon a person by a State court for an offence against the laws of the Commonwealth: see Williams v. The King [No. 1] [2] . Subsequently that Court of Criminal Appeal at the instance of the Attorney-General of the Commonwealth increased the sentence imposed upon Williams by the State court of first instance. An application for special leave to appeal against this decision by the Court of Criminal Appeal was refused by this Court, the six Justices comprising the Bench being equally divided in opinion: see Williams v. The King [No. 2] [3] . The question whether s. 68 (2) of the Judiciary Act 1903-1959 both gives the Attorney-General of the Commonwealth the right to apply to the Court of Criminal Appeal of New South Wales to vary a sentence imposed by a State court for an offence against the laws of the Commonwealth and gives that Court of Criminal Appeal jurisdiction to do so upon that Attorney-General's application has remained unanswered up to this time. On this occasion, the whole Court has sat to hear argument on this question which is purely one of statutory construction. There is now no question of constitutional power in the Parliament to legislate to create such a right in the Attorney-General of the Commonwealth or such a jurisdiction in the State Court. The sole question is whether it did so by the amendment of the Judiciary Act 1903-1927 to which I have referred.
At the time of the passing of the Judiciary Act Amendment Act 1932 apart from the State of New South Wales only the State of Tasmania had a statutory provision giving the Attorney-General of the State a right of appeal to the Court of Criminal Appeal. Section 401 (2) of the Criminal Code Act 1924 of that State provided that the Attorney-General of the State might appeal to the Court of Criminal Appeal:
(b) by leave of the Court, or upon the certificate of the Court of trial that it is a fit case for appeal, against an acquittal on a question of law alone; or
Since 1932, the States of Queensland and of Western Australia have enacted a right in the Attorney-General of the State to appeal against the sentence imposed by the trial court. No such right has been enacted in the States of Victoria or South Australia. But in construing the section regard must be had to the situation in 1932. However such rights of appeal are neither traditional nor were they in 1932 exampled in the legislation or practice of the United Kingdom. They cut across time-honoured concepts of criminal administration. But, of course, it is within the province of the Parliament of the Commonwealth to give such rights if it should think fit to do so. Therefore, if a general ambulatory provision such as s. 68 (2) is apt to create such rights in the Attorney-General of the Commonwealth with respect to sentences imposed by State courts for offences against the laws of the Commonwealth and against an acquittal of a person charged with such an offence, neither the unusual nature of such rights nor the circumstance that they did not exist in 1932 in all the States of the Commonwealth with respect to State offences will require that effect should not be given to the expressed will of the Parliament. But, in considering whether general words of an enactment are so apt, that unusual nature and the singularity of the particular right of appeal ought, in my opinion, to be borne in mind.
I have anxiously considered the question whether the language of the amended s. 68 (2) discloses a parliamentary intention to give to the Attorney-General of the Commonwealth and to the State Court of Criminal Appeal the right and jurisdiction which has been claimed. In this connexion I have carefully considered the reasons for judgment of the members of this Court who participated in Williams v. The King [No. 2] [1] and in which opinions are expressed as to the relevant intention of the Parliament. In the end, I find the reasons given by Evatt and McTiernan JJ. convincing. I agree with them and have little to add.
I am unable to accept the view expressed by Gavan Duffy C.J. in that case. I am of opinion that a grant of jurisdiction to the Court of Criminal Appeal to hear an application by the Attorney-General of the Commonwealth would be adequate to give that Attorney-General a right to make the application. But on the other hand I am also unable to accept the reasoning of Dixon J. It seems to me that his Honour first makes what to my mind is an unwarranted assumption that it was the policy of the Judiciary Act Amendment Act 1932 -
to confer upon the Courts of Criminal Appeal of the States a jurisdiction to hear and determine appeals in the case of federal offences such as existed in the case of State offences and to confer upon prisoners, at any rate, a right to invoke that jurisdiction and to obtain analogous remedies [1] . His Honour includes in this right and these remedies the right to appeal against a sentence. Having assumed such a policy, his Honour favours a construction of the amendment which will effectuate it. Having by this process included a right in the prisoner to appeal against sentence, no ground can be seen for excluding the right of the Attorney-General so to appeal. This assumption of policy could not be limited to existing rights or remedies in the State systems, and quite clearly would not be valid if the right to appeal against an acquittal was not given to the Commonwealth Attorney-General in respect of federal offences tried in Tasmania. 1. (1934) 50 C.L.R., at p. 559.
It might well be thought that uniformity in the rights and remedies available to the Attorney-General of the Commonwealth in relation to federal offences was at least as desirable as uniformity in proceedings in each State with respect to criminal offences whether against laws of the Commonwealth or against laws of the States.
But, with due respect, however desirable it may be thought to be to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State, it is for the Parliament so to decide and so to enact. The first question therefore is the construction of the words actually chosen by the Parliament. They are the expression, and the only evidence, of whatever policy it may have decided to pursue. That the Parliament intended to supply the defect in the law exposed by the Court's decision in Seaegg v. The King [1] is patently clear. But do the words used by the Parliament lend colour to the proposition that the Parliament intended to go further and "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice". The proposed construction of s. 68 (2) does not produce uniformity in relation to the rights of the Attorney-General with respect to federal offences. On the contrary it introduces differences State by State to his rights in relation to the same offences. Further, having regard to the terms of the Tasmanian statute, the supposed policy would require the Attorney-General of the Commonwealth to have the right of appeal to the Tasmanian Court of Appeal in a matter of law against an acquittal for an offence against the laws of the Commonwealth. But it would be even more difficult to construe s. 68 (2) as referring to an appeal against an acquittal. Yet the supposition must be that the draftsman of the amended section being aware of the terms of the Tasmanian Criminal Code by not using either the word acquittal or sentence, intended to give to the Commonwealth Attorney-General a right of appeal to the Tasmanian Court of Appeal against sentence but not against acquittal.
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] .
I conclude that the language chosen by the Parliament in the amendment of s. 68 (2) does not evidence any policy such as I have mentioned or any intention to create in the Attorney-General of the Commonwealth the right claimed. I realise that on this view the prisoner has no right of appeal to the State Court of Criminal Appeal against a sentence imposed by a State court for an offence against the laws of the Commonwealth. No doubt that is a matter worthy of the attention of the Parliament. The absence of such a right, which it may be thought desirable that a prisoner should have, is in my opinion no reason for placing on the actual words used by the Parliament in the amendment under consideration a construction which, in my respectful opinion, they will not bear, any more than the supposed policy would be any warrant to construe the words of the Parliament as including appeals against acquittals. So to do in either case is to legislate.
I adhere to the opinions which Evatt J. and I expressed in Williams v. The King [No. 2] [2] with respect to the amendment made in 1932 to s. 68 of the Judiciary Act 1903-1959 Cth ("the Act").
The amendment in question was designed to surmount the result of the decision in Seaegg v. The King [3] . That decision had held an appeal to the Court of Criminal Appeal of a State by a person convicted within that State of an offence created by Commonwealth law to be incompetent unless it was brought in the manner prescribed by ss. 72-77 of the Act. It does not, however, follow that, without a very clear expression of intention, the amended section should be construed so as to embody an intention to give the Crown a right of appeal against the sentence imposed, especially when it is borne in mind that at that time this would have effected, rather cryptically, a drastic change in the established criminal law and practice of the Commonwealth. In my opinion it is significant that s. 69 of the Act expressly authorizes the Attorney-General of the Commonwealth to prosecute indictable offences against Commonwealth law but makes no provision for dealing with appeals by the Crown against sentence.
It is also relevant, in my opinion, that the section of the Criminal Appeal Act, 1912 N.S.W. which is said to be embraced by s. 68 of the Act refers to an appeal by the "Attorney-General" for the State, who is of course a political officer as well as the legal representative of the Crown in the courts, rather than the Crown or the prosecutor.
I would therefore grant special leave to appeal in this case and allow the appeal.
The circumstances in which this application for special leave to appeal has been made are stated in what Owen and Gibbs JJ. have written. Accordingly, I can confine my attention to the effect of s. 68 (2) of the Judiciary Act about which there was an equal division of opinion in this Court in Williams v. The King [No. 2] [1] .
In the first place I do not accept the statement of Gavan Duffy C.J. as follows:
The words in sub-s. 2, "shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth," 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. The Commonwealth Parliament in enacting s. 68 was exercising the power of investing State courts with federal jurisdiction conferred by s. 77 of the Constitution and not, as is suggested for the Crown, exercising that power and in the same section exercising a distinct power to confer a right of appeal upon an individual. [2] This construction would condemn the subsection to sterility. There are many instances where the grant of jurisdiction has been regarded as carrying with it authority to invoke the jurisdiction conferred. See, for instance, s. 75 of the Constitution of the Commonwealth. I consider that this subsection should be so regarded. 1. (1934) 50 C.L.R., at pp. 556-557.
Secondly, I prefer the view of Starke, Rich and Dixon JJ. to that of Gavan Duffy C.J., Evatt and McTiernan JJ. that an appeal against a sentence is an appeal arising out of a "trial or conviction or out of any proceedings connected therewith" [1] . It seems to me that, even if the sentencing of a person convicted at a trial has been deferred, as is commonly done, the later sentencing would nevertheless be a proceeding connected with the preceding trial and conviction.
Thirdly, if the subsection confers upon a convicted person the right to appeal, both against conviction and sentence - as I think it does - I have found no ground for construing it as not conferring a corresponding right upon the Crown. It is the law of New South Wales that an appeal in a matter of State jurisdiction may be instituted by the Attorney-General of the State: Criminal Appeal Act, s. 5D. When the appeal is in federal jurisdiction the implicit authority to invoke the jurisdiction that has been granted is, by virtue of the words "like jurisdiction", given to the Attorney-General for the Commonwealth on behalf of the Crown.
In expressing the foregoing views I find support not only in what was said by Starke, Rich and Dixon JJ. in the earlier case [2] , but in the judgment of the Court of Criminal Appeal delivered by Jordan C.J. [R. v. Williams; R. v. Somme [3] ].
Because I consider that the appeal in the present case was competent and because I do not think that the severity of the sentence imposed by the Court of Criminal Appeal can afford any basis for the grant of special leave to appeal to this Court, I have reached the conclusion that the application for special leave should be refused.
I have had the advantage of reading the judgments that my brothers Owen and Gibbs will deliver in this case. I agree in their conclusion. There is nothing that I could usefully add to their reasons for it.
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.
The laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for -
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith
shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State And, by sub-s. (2): The several Courts of a State exercising jurisdiction with respect to -
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.
In this Court Gavan Duffy C.J. gave two reasons for differing from the conclusion reached by Jordan C.J. The first was that while s. 68 of the Judiciary Act conferred federal jurisdiction upon the State court, it conferred no right of appeal upon anyone. He was of opinion also that an appeal against sentence was not, within the words of s. 68 (2), an appeal "arising out of any such trial or conviction or out of any proceedings connected therewith" and that s. 68 had not, therefore, invested the Court of Criminal Appeal with federal jurisdiction to hear such an appeal [1] . Rich J. agreed with the judgment of Jordan C.J. and expressed the opinion that the express grant of jurisdiction under s. 68 "includes the grant of rights of appeal co-extensive with those existing under the State law" [2] . Starke J. said that he had sufficiently expressed his reasons for holding that the Court of Criminal Appeal had jurisdiction to hear an appeal against sentence by the Attorney-General of the Commonwealth in Williams v. The King [No. 1] [3] and went on to agree with the reasoning of Dixon J. in the case then before the Court [2] . The judgment delivered by Dixon J. set out in detail a series of steps which led him to the conclusion that:
s. 68 (2) of the Judiciary Act 1903-1932 operates upon s. 5D of the New South Wales Criminal Appeal Act in such a way as to enable the Attorney-General of the Commonwealth to appeal to the Court of Criminal Appeal against a sentence imposed upon a prisoner convicted in New South Wales on indictment of an offence against the laws of the Commonwealth. [2] His Honour's reasoning followed lines similar to those taken by Jordan C.J. in the court below. Evatt and McTiernan JJ. were of opinion that the words of s. 68 were not wide enough to enable the Attorney-General of the Commonwealth to appeal against a sentence to the Court of Criminal Appeal. Their conclusion is, I think, summed up in a passage in their judgment [4] that: in our opinion, Parliament did not intend to give the Crown a right to approach a Court of Criminal Appeal to question the adequacy of a sentence, merely because a State statute chose to include an analogous provision in the local Criminal Appeal Act. 1. (1934) 50 C.L.R., at p. 557. 2. (1934) 50 C.L.R., at p. 558. 3. (1933) 50 C.L.R. 536. 4. (1934) 50 C.L.R., at p. 558. 5. (1934) 50 C.L.R., at p. 558. 6. (1934) 50 C.L.R., at p. 563.
I have read and re-read the reasons given in that case by the members of this Court and by Jordan C.J. in the Court of Criminal Appeal and with all respect to those who held that the Attorney-General of the Commonwealth was not empowered to appeal against the adequacy of a sentence, I prefer the reasons given by Jordan C.J. and by Dixon J. in this Court for reaching the contrary conclusion. I am of opinion therefore that the appeal by the Attorney-General of the Commonwealth in the present case was competent.
This is an application for special leave to appeal against a decision of the Supreme Court of New South Wales sitting, for the purposes of the Criminal Appeal Act, 1912, as amended, of that State, as the Court of Criminal Appeal, as provided by s. 3 of that Act. The decision was given in an appeal to that Court made by the Attorney-General of the Commonwealth. The first ground upon which special leave is sought is that that appeal was not competent. This Court decided that in the first instance it would consider that ground only.
The question to be decided is whether the Attorney-General of the Commonwealth has a right to appeal to the Court of Criminal Appeal, against a sentence imposed by the Supreme Court or by a court of quarter sessions in New South Wales upon a person convicted of an offence against a law of the Commonwealth. If the right exists, it is derived from the operation of s. 68 of the Judiciary Act and s. 5D of the Criminal Appeal Act. The same question came before this Court in Williams v. The King [No. 2] [1] . The Court was equally divided and special leave to appeal from the decision of the Court of Criminal Appeal was refused. That Court had held that there was such a right of appeal and its decision, reported as R. v. Williams; R. v. Somme [2] , was followed by that Court in the present case.
In the judgment of Gibbs J., which I have had the advantage of reading, an account is given of the decision of this Court in Seaegg v. The King [3] , and of the amendments made to s. 68 of the Judiciary Act, apparently in consequence of that decision. I need not repeat what he has said about them. After those amendments were made, an appeal against a sentence imposed in respect of offences against laws of the Commonwealth was brought by the Attorney-General of the State of New South Wales, but this Court held that that appeal was not competent: see Williams v. The King [No. 1] [4] . Then in respect of the same sentence, an appeal was brought by the Attorney-General of the Commonwealth, and that appeal was considered in Williams v. The King [No. 2] [1] .
Reasons which were considered to warrant the conclusion that such an appeal is competent were stated in the judgments of three members of this Court in Williams v. The King [No. 2] [1] and also by Jordan C.J. in the Supreme Court in the same case [2] . The judgment of Gavan Duffy C.J. and the joint judgment of Evatt and McTiernan JJ. set out the reasons of those learned Justices for reaching the opposite conclusion. There is no need for me to repeat here what is contained in those judgments. After considering them and giving attention to the submissions made to us on this application, I have come to the conclusion that s. 68 of the Judiciary Act does not disclose a legislative intention that the Attorney-General of the Commonwealth should be authorised to exercise, in relation to offences against the laws of the Commonwealth, the right of appeal against sentence which is given, by s. 5D of the Criminal Appeal Act, to the Attorney-General of the State in relation to offences against the laws of the State.
I do not accept the view of Gavan Duffy C.J. in Williams v. The King [No. 2] [1] , that the provisions of s. 68 (2) of the Judiciary Act are not effective to give a right to any person to institute an appeal. I think that those provisions should be read as having, at least, the effect of giving to a person convicted of an offence against Commonwealth law a right to appeal against the conviction, to a court of a State having jurisdiction to hear and determine appeals against convictions of offences against the laws of that State.
I am of opinion, also, that it may properly be held that an appeal against a sentence passed on a convicted person is an appeal "arising out of any such trial or conviction or out of any proceedings connected therewith", within the meaning of s. 68 (2) of the Judiciary Act. In my opinion, an appeal against sentence answers the description of an appeal arising out of the trial or the conviction or arising out of proceedings connected therewith, whether or not the word "conviction" is used in this provision in a sense which includes the sentence passed upon a convicted person.
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.
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.
For those reasons I am of opinion that the appeal to the Criminal Court of Appeal in this case was not competent. I am of opinion that upon that ground special leave to appeal against the order of that Court should be granted and that that order should be set aside.
The applicant was charged before a court of petty sessions with the indictable offence of importing prohibited imports, namely cannabis, contrary to the provisions of s. 233B (1) (b) of the Customs Act 1901, as amended Cth, and, having pleaded guilty, was committed to a court of quarter sessions for sentence. He came before a chairman of quarter sessions and was fined $400. From this sentence an appeal was brought by the Attorney-General of the Commonwealth to the Court of Criminal Appeal of the Supreme Court of New South Wales; that Court allowed the appeal, set aside the penalty imposed by the chairman and in lieu thereof sentenced the applicant to imprisonment for three years and specified a non-parole period of nine months. The applicant has sought special leave to appeal from this decision. The first ground on which leave is sought is that the appeal to the Court of Criminal Appeal by the Attorney-General of the Commonwealth was not competent. An alternative ground that the sentence imposed by the Court of Criminal Appeal was too severe does not fall for our consideration at the present stage.
The right to appeal to the Court of Criminal Appeal, in cases arising under the law of the State of New South Wales, is governed by the Criminal Appeal Act, 1912 N.S.W.. By s. 5 (1) of that Act, a person convicted on indictment may appeal to that Court against his conviction in certain circumstances and with the leave of the Court against the sentence passed on his conviction. By s. 5D, the Attorney-General may appeal against any sentence pronounced, inter alia, by any court of quarter sessions, and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to it may seem proper. However, s. 5 (1) applies only to persons convicted on indictment preferred according to State law for offences against the law of the State and s. 5D refers to the Attorney-General of the State and not to the Attorney-General of the Commonwealth (see Seaegg v. The King [1] ). These sections by their own force therefore do not give any right of appeal to a person convicted on an indictment preferred according to the law of the Commonwealth for an offence against that law, or to the Attorney-General of the Commonwealth.
However, ss. 39 (2) and 68 (2) of the Judiciary Act Cth operate to invest State courts with federal jurisdiction in criminal matters and in Seaegg v. The King [2] , the question arose whether those provisions conferred on the Court of Criminal Appeal of the State of New South Wales jurisdiction to hear an appeal by a person convicted in a court of quarter sessions upon an indictment in the name of the Attorney-General of the Commonwealth of an offence against the Commonwealth Crimes Act. The question was answered in the negative. Section 39 (2), so far as it is material, provided then, as it does now, that
The several Courts of the States shall within the limits of their several jurisdictions be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it. subject to certain immaterial exceptions; section 68 (2) at that time provided as follows: The several Courts of a State exercising jurisdiction with respect to -
(b) the examination and commitment for trial on indictment; or
of offenders or persons charged with offences against the laws of the State, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere. The Court said [1] that it may well be that s. 39 (2) cannot convert a jurisdiction confined to appeals against convictions upon indictment preferred under State law into a federal jurisdiction over a different subject matter, viz. appeals against convictions upon indictment preferred pursuant to s. 69 of the Judiciary Act of the Commonwealth, but that in any case the general words of s. 39 (2) should not be construed as capable of importing a new jurisdiction by way of appeal from conviction upon indictment which in effect would supersede the special provisions of ss. 72 and 77 of the Judiciary Act, which contained a code of procedure for an appeal by way of case stated upon a point of law raised at the trial. As to s. 68 (2), it was said [2] that the words "with respect to the trial and conviction on indictment of offenders" would not naturally refer to a jurisdiction to hear appeals from such convictions and that the presence of ss. 72-77 again operates to preclude such an interpretation. 1. (1932) 48 C.L.R. 251. 2. (1932) 48 C.L.R., at p. 256. 3. (1932) 48 C.L.R., at p. 257.
This decision was pronounced on 21st September 1932 and on 5th December 1932, s. 68 of the Judiciary Act was amended, inter alia, by inserting in sub-s. (2) after the words "against the laws of the State" the words "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". There seems no doubt that these amendments were effected in consequence of the decision in Seaegg v. The King [3] . (See Williams v. The King [No. 1] [4] ; Williams v. The King [No. 2] [5] .)
The effect of the amendment to s. 68 fell for consideration in R. v. Williams; R. v. Somme [6] where the Court of Appeal of the Supreme Court of New South Wales held that it had jurisdiction to hear an appeal by the Commonwealth Attorney-General against the sentence imposed upon a person who had pleaded guilty before a court of quarter sessions to certain coinage offences against the laws of the Commonwealth. An application was made to this Court for special leave to appeal from that decision and, the court being evenly divided, special leave was refused: Williams v. The King [No. 2] [1] . The applicant in the present case now asks us to prefer the reasons for judgment of Gavan Duffy C.J., Evatt and McTiernan JJ., who held that the Attorney-General of the Commonwealth had no right of appeal to the Court of Criminal Appeal, to those of Rich, Starke and Dixon JJ., who were of a contrary opinion.
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.
The second question is whether an appeal against a sentence is an appeal "arising out of any such trial or conviction or out of any proceedings connected therewith". On this question Evatt and McTiernan JJ. were in agreement with Gavan Duffy C.J. that the words used were inapt to include a sentence. The word "conviction" has been said to be equivocal, and in Williams v. The King [No. 2] [2] Dixon J., held that it is capable of including sentence. I need not rest my decision on that view, because the jurisdiction conferred by the section is not to hear and determine appeals "against conviction", but to hear and determine appeals "arising out of any such trial or conviction ", and in my opinion an appeal against sentence is an appeal arising out of a conviction within the ordinary and natural meaning of that expression; a sentence can be said to arise out of a conviction, so that an appeal against a sentence also arises out of the conviction. If the section is thought to be ambiguous it should be broadly construed in this way, since to construe it as giving no right of appeal against sentence would of course be to deny to persons convicted of federal offences the same right of appeal as is given to those convicted of offences against State law, whereas the intention of Parliament appears to have been "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice" (per Dixon J. in Williams v. The King [No. 2] [2] ).
The third question is whether the right of appeal which s. 68 (2) confers is given to the Attorney-General of the Commonwealth. As Jordan C.J. pointed out in R. v. Williams; R. v. Somme [3] if s. 68 (2) -
is read as meaning that the jurisdiction is to be restricted to hearing appeals by persons designated by the State Act, it becomes nugatory, because neither persons convicted on New South Wales indictments 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. This provides a sound reason for concluding that in the application of s. 68 (2) "the adoption of State law must proceed by analogy" (Williams v. The King [No. 2] [1] ). Section 5 of the Criminal Appeal Act, 1912 N.S.W. gives a right of appeal to a person convicted upon indictment under State law and s. 68 (2) in its operation on s. 5 gives a right of appeal to persons convicted upon indictment under the law of the Commonwealth. Section 5D of the Criminal Appeal Act gives the Attorney-General of the State a right of appeal because he is the proper officer to represent the State; s. 68 (2) in its operation on s. 5D gives a right of appeal to the Attorney-General of the Commonwealth as the proper officer to represent the Commonwealth. The functions exercised by the Attorney-General of the Commonwealth are like functions to those of the Attorney-General of the State and the jurisdiction exercised by the Court of Criminal Appeal in hearing and determining an appeal by the Attorney-General of the Commonwealth against a sentence imposed for an offence against Commonwealth law is a like jurisdiction to that exercised by the Court of Criminal Appeal in hearing an appeal by the Attorney-General of the State against a sentence imposed for an offence against the law of the State. 1. (1934) 34 S.R. (N.S.W.), at pp. 151-152; 51 W.N., at p. 26. 2. (1934) 50 C.L.R., at p. 561.
The words of s. 68 (2) in its amended form are not free from obscurity and it seems surprising that after the difference of opinion revealed in Williams v. The King [No. 2] [2] , the legislature did not take the opportunity to clarify the section by further amendment. However, as I have indicated, I am in agreement with the view taken by Rich, Starke and Dixon JJ. that the section as it stands does confer on the Attorney-General of the Commonwealth a right of appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales against the inadequacy of a sentence imposed by a court of quarter sessions for a breach of Commonwealth law.
I would, therefore, decide against the applicant on the first ground on which special leave to appeal is sought.
Peel
The Queen
High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ. Peel v The Queen [1971] HCA 59