R v Lowrie [1997] QCA 434

R v Lowrie [1997] QCA 434 - QCA 1997 case summary — Zoe

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Lowrie \[1997\] QCA 434

Legislation Cited (11)

Supreme Court Act 1995

Judicature Act 1876

Supreme Court Act 1921

Criminal Code Act 1899

Supreme Court Act 1867

Criminal Code Amendment Act 1913

Criminal Practice Act 1865

Amendment Act 1921

Criminal Appeal Rules 1914

Criminal Practice Rules 1900

Criminal Appeal Act 1907

Cases Cited (11)

The question whether the principle of Rowley would, but for the terms of s. 569 of the Code, be applicable in this State need not be decided. But I note that the basis upon which Rowley was decided cannot be reconciled with Darby [1982] HCA 32; (1982) 148 C.L.R. 668, relating to the analogous position of conspirators; that is authority for the proposition that it is possible to have a conviction of one of the alleged co-conspirators co-existing with an acquittal of the other, "unless in all of the circumstances of the case his conviction is inconsistent with the acquittal of the other person". Darby was applied in King [1986] HCA 59; (1986) 161 C.L.R. 423, involving a principal and accessory indicted together for murder. I refer also, in this connection, to Shannon [1975] A.C. 717, to Hart, Cuzzo and Smith [1980] Qd.R. 259 and to Deane (1996) 88 A.Crim.R. at 36.

The 1997 Act cannot have been intended to alter, retrospectively, any right of appeal subsisting at the date of its passage; such a right is a matter of substance and not mere procedure: The Australian Coal & Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942) 66 C.L.R. 161. The question is whether, prior to the 1997 Act, there was a right of appeal to this Court against a decision refusing a stay or refusing to quash an indictment. Putting the question more generally, it is whether there was a right of appeal from orders of the Supreme Court made in an interlocutory way in criminal matters.

The argument was that the provision has the effect of giving this Court jurisdiction to hear appeals against any order, whether in a criminal matter or not, but the contention was, at least as to appeals from the District Court, rejected. There is some discussion of Skase in Pettigrew [1996] QCA 235; [1997] 1 Qd.R. 601 at 614, 615.

There has been a number of decisions relating to the effect of the Western Australian provision corresponding to s. 10 of the Judicature Act 1976, the present day equivalent of which is s. 254 of the Supreme Court Act 1995 (Qld). Section 58(1)(b) of the Supreme Court Act 1935 (WA) gave the Court jurisdiction to "hear and determine . . . appeals from a Judge . . . whether sitting in court or in chambers". The original version of that provision was read down by the High Court in Riebe v. Riebe [1957] HCA 66; (1957) 98 C.L.R. 212, as being concerned only with the distribution of business in the Western Australian Supreme Court (220), but that conclusion depended upon a heading which has no counterpart in our Act. The effect of the then current version of s. 58(1)(b), which had been amended so as to overcome the decision in Riebe v. Riebe, was considered by the Western Australian Supreme Court in Connell v. The Queen (No. 5) (1993) 10 W.A.R. 424. The Court held that the provision gave no right of appeal from interlocutory orders made in the course of a criminal trial. That was decided principally on the basis, as I read the judgments, that the provisions of the Criminal Code were intended exhaustively to define the rights of appeal in respect of trials on indictment. The Western Australian appellate provisions, contained in that State's Code, are not identical with those in force in Queensland, but are sufficiently similar to make Connell at least a persuasive authority in this State. The decision was followed in Carter (1994) 74 A.Crim.R. 300 in which an order refusing an application for a separate trial was held not to be a proper subject of appeal, other than by recourse to what was described as the "ex gratia jurisdiction", which cannot apply in the present case.

In Helmhout [1981] FCA 215; (1981) 5 A.Crim.R. 42, it was assumed that the Full Court of the Federal Court has jurisdiction to hear an appeal from a refusal, by the ACT Supreme Court, of a stay in a criminal proceeding and in Goia (1988) 81 A.L.R. 656 at 664, Miles J expressed the view that an order for a stay does not involve the determination "in a criminal cause or matter". It does not appear to me that these decisions are of real assistance in resolving the present problem. The difficulty, in my view, is to determine whether the effect given to s. 10 of the Judicature Act in Foster and in the two cases which have followed it can be confined to the subject matter of those decisions: proceedings for contempt and orders in respect of bail. It is not at first sight easy to see why it should not follow, if those three cases are correct, that this Court has jurisdiction to hear an appeal against any order made in the Supreme Court relating to a criminal matter; I reiterate that the recent insertion of s. 592A(4) in the Code alters the position, as to matters falling within its scope.

In Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 Dixon J (with whose reasons McTiernan J agreed) when speaking of the relevant New South Wales Act said (at p 435):-

(1938) 60 CLR 431

(1992) 174 CLR 509

(1960) 104 CLR 186

(1980) 147 CLR 75

(1989) 168 CLR 23

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Judgment (66 paragraphs)

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Legislation Cited (11)

Cases Cited (11)