R v Snow [1915] HCA 90

R v Snow [1915] HCA 90 - HCA 1915 case summary — Zoe

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consequences, may, notwithstanding acquittal by the primary tribunal appointed to determine both facts and law, be pursued until justice is satisfied. Of course, if it is irremediable in this case, it is, and ought to be, irremediable in every other. To be compelled to allow a man to escape justice by evading a jury by means of an argument which proves to be fallacious, if he has, in fact, been guilty of what is charged here, is the last confession of constitutional incompetency. If the Constitution is, as it claimed to be by those holding the opposite opinion, powerless to correct this manifest error, or if the Court in its discretion declines to permit the correction, then the people of Australia must remain unsatisfied whether, having regard to this transaction, Snow is a loyal subject or a traitor within the gates - a situation in my opinion dangerous to the community, and, moreover, to an innocent man himself, as the respondent might on proper investigation turn out to be, a position, I should think, absolutely unendurable. Whether he is guilty or not, we know not; but it is necessary to inquire whether the Constitution breaks down when we endeavour to have that simple question of fact ascertained, or whether it is a right exercise of our discretion to prevent that ascertainment. These circumstances are, in a time such as this, most essential to bear in mind when we have to exercise the discretion with which Parliament has entrusted us, and when the respondent, as in this case, asks the Court to exercise it by refusing to interfere with the judgment. The main reason suggested for that was that there was an acquittal, and it was urged that new trials in cases of acquittal are contrary to the long established practice of English tribunals. That is true, but that was because their practice had hardened into law, and no English Statute has said for the English Courts, and no State Statute has said for the State Courts, what our Constitution has said for this Court, leaving it to Parliament to limit the grant of power if it will. But what has Parliament said? If it had chosen, it could have said that in acquittals there should be no special leave granted. It has not said so, and when it thinks the public interest or the general sense of the community makes such a limitation desirable it will say so, but in the meantime we have no right to insert by way of judicial amendment of the enactment an exception not found there.

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behind, and, whatever the circumstances of the case may be, it becomes a question of pure law. If the Constitution is as defective as alleged, then we as a Court must disregard entirely the atrocity of the circumstances charged, and, looking only to the cold law of the Constitution, declare that the accused is entitled to escape through whatever loop-hole it presents. In my opinion the Constitution is not so radically weak as is suggested. Its provisions are to my mind plain, strong and com- _ prehensive. Unless needlessly obscured or frittered away by un- _ substantial distinctions, it seems to me difficult in the extreme to entertain any doubt on the subject. The Constitution erected a new political system in Australia, and among other things constituted this High Court, which, besides having certain original powers of jurisdiction, was to be a new national Court of appeal in the fullest sense, not a mere Court of Error as technically known to the common law of England, and is bound down by the obscure limitations, and antiquarian learning, _ of writs of error, and posteas, and bills of exceptions. It has 'inherited nothing in the way of jurisdiction from any other Court ; it looks to the Constitution alone for the ultimate scope of its powers, a new statutory tribunal for a new statutory Commonwealth, and irrespective altogether of what jurisdiction was formerly enjoyed by State Courts, or might in the future be possessed by them, the High Court's powers were inscribed in plain language on that instrument of government, with no limitations, but those found in, or authorized by, the instrument itself. With profound respect for the opposite opinion, I venture to think that the fallacy it embodies is due to overlooking entirely the distinction between a Court of general appeal from judgments, &c., and a mere Court of Error as that is understood in British jurisprudence. _ Sec. 73 of the Constitution says : - '* The High Court shall have _ jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all ents, decrees, orders, and sentences... . ofany. . . Court sing federal jurisdiction; or of the Supreme Court of any State," No distinction is made between civil or criminal cases, nor

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between cases where the plaintiff or the defendant, the prosecutor or the accused, is successful. In an instrument of government, the Constitution of a great Commonwealth, the use of such a universal expression as "all judgments," &c., is not to be cut down unless some context points very distinctly to the limitation, and such context does not exist. The scope and object of the.enactment at once distinguish the case from the instances to which Mazwell refers at p. 132 of the last edition. The judgment of Lord Herschel in Cox v. Hakes (1) is, to my mind, an unanswerable reply to the contention that the words should be restricted. If they should be, we could not have heard Wallach's Case (2), just decided. In Jackson's Case (3) the learned Chief Justice says of sec. 73 : - '* Parliament has imposed no limitation on the right of appeal in criminal cases, and the only condition imposed is that special leave to appeal must first be obtained." In Ah Sheung's Case (4) the Chief Justice again said: - "The jurisdiction conferred by the Constitution extends to all decisions of the Supreme Courts of the States with such exceptions as may be made by Parliament ;" and, as no excep- tion was made by Parliament in cases of habeas corpus, jurisdiction was asserted and exercised in a case where a man had been discharged on habeas. In other words "all" has been consistently held to mean "all" without qualification. In re Eather v. The King (5), already referred to, connotes the universality of this section, and says that there is no fetter on the discretion to grant that special leave once a prima facie case of special circumstances is shown. For the purpose of my observations, I need only consider the Supreme Court as coming within the phrase "' any Court exercising federal jurisdiction," because the Supreme Court of South Australia in this case was acting, not as the Supreme Court in State jurisdiction, but as a Court exercising federal jurisdiction under sees. 39 and 68 of the Judiciary Act. That the Supreme Court gave a judgment, is of course admitted, namely, the judgment of acquittal, the final judgment.

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this was followed in Forbes v. Amecroonissa Begum (2) and Sheonath -y, Ramnath (3). Tt is objected that the decision of Gordon J. was not an interlo- eutory judgment. Well, what was it? Was it not an act of the

Court when the learned Judge took the case out of the hands of the jury, and intercepted them in the performance of their duty ~ under sec. 80 of the Constitution ? If we are to look for precedent, the English Courts have never in such a case permitted substance to be strangled by form. In the Judicature Act 1873, sec. 47, it is provided that "'no appeal shall lie from any judgment of the. . . High Court in any criminal cause or matter, save for some error of _ law apparent on the record." The Court of Appeal in 1883, in RB. v. Foote (4), said: - "The question is whether the word aa judgment ' is used in a general or in a technical sense, as con-
fined to final judgment in criminal cases. I am of opinion that 'it is used in the larger sense, of all decisions in criminal matters." Again, in Lane v. Esdaile (5), when dealing with the words " order or judgment" in the Appellate Jurisdiction Act, Lord Halsbury 'Le. said of a supposed decision sought to be brought within 'those terms, "although it was no one of those things in name it might be one of those things in substance, and therefore would 'come within the general provision that an appeal should lie." This is exactly in line with the course of reasoning in Tronson v. Dent (6). I think the formal written judgment of Gordon J. was a judg- as within sec. 73 of the Constitution and appealable either in _ conjunction with or independently of the final judgment. _ (3) The third point is that notwithstanding an erroneous ruling of he Judge on even a fundamental point, a judgment based wholly on _ ayerdict founded on that ruling cannot be impeached, but an appli- ~ cation for a new trial must be made, where new trial is permissible, and otherwise there is no redress. It is, of course, formally conceded by those of my learned brethren who support that objection, that an appeal does lie from every judgment, and therefore, in a sense,

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as was pointed out by Channell B., was to "reverse, affirm or amend the judgment, but not the verdict." Martin B. said : - " There is no verdict, as the second is illegal." But why was the second verdict illegal? Simply because the Judge, as in this case, funda- mentally misdirected the jury as to the verdict they were allowed by law to give. Obviously the Court did not accept the view Be that the judgment was unchallengeable on the ground that once » the verdict was received the Court was bound to act upon it. The law of that case has never been questioned, and is, I venture _ to think, perfectly sound, because it is well established that for _ mistrials in criminal cases a venire de novo is the remedy (see per Blackburn J. in Winsor v. The Queen (1). As already seen the procedure is far from obsolete, and was followed, as late as October _ 1914, in Ingleson's Case (2). And if that case is sound it appears _ to me a clear answer to the objection. The so-called verdict of not guilty in this case therefore stands in _ this position. Until challenged in a competent Court of appeal _ it is presumed to be correct. But once it is challenged in a Court of appeal, and shown to rest on no legal foundation, it is then a mere nullity, and so we should regard it and set aside the judg- ment which it purports to support. Iam therefore of opinion that the constitutional grant of appellate _ power extends to the correction of such an error as appears in

the present case by annulling the judgment and vacating the verdict. (4) The next objection is that sec. 73 of the Constitution which enacts that the High Court shall have jurisdiction to hear and _ determine appeals from "all judgments" should be read "all judgments not being judgments of acquittal." I am unable to follow the learned Chief Justice in inserting into the Constitution any such exception. Tt is suggested that sec. 80 cuts down sec. 73, because - as the argument runs - sec. 80 connotes finality in favour of the accused 2 when there is a verdict in his favour. In the first place, as was (1) LR. 1 Q.B., 289, at p. 302. (2) 11 Cr. App. R., 21.

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or acquittal. The Crown Cases Act 1848 allowed the Judge at the - trial to reserve any question of law for all the Judges and Barons, but only in the case of a conviction. In 1907 a right of appeal was given to persons convicted, but no right of appeal was given - from an acquittal. That is to say, in 1900, when our Constitution i was passed into law, there was no appeal in English Courts from either conviction -or acquittal; and since that time the British - Parliament has created a right of appeal from conviction only. But how is the practice of the British Courts binding on the High Court under the Constitution? Sec. 73 of the Constitution pro- vides as follows : - " The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences. . . of any . . . Court exer- cising federal jurisdiction." It is not pretended that Parliament has made any "exception" or "regulation" which cuts down this unlimited power over all judgments except this - that the appeal cannot be brought without the special leave of the High - Court (sec. 35 (1) (6)). The High Court is, by this provision, - able to protect itself from being flooded with the innumerable appeals that might be brought in criminal cases of all kinds ; and, according to the pronouncement of the Court in In re Eather v. The King (1), we have an unfettered discretion to grant or to refuse special leave in every case - including criminal cases - (Attorney-General of New South Wales v. Jackson (2) ). The jurisdiction of the High Court to hear appeals comes, therefore, direct from the Constitution, and cannot be cut down except by the Federal Parliament. The British Parliament has, by sec. 73, conferred on the Australian Parliament an unlimited discretion to say what appeals may be withheld from the High Court; and the Australian Parliament has, in effect, passed on the unlimited discretion to the High Court. We are not bound by any rule, whether based on time-honoured practice or otherwise, that has not been imposed by the Australian Parliament. We have treated this Court as not bound by the English rule, quite as rigid, that there can be no appeal from an order under a habeas corpus writ (1) 20 C.LR., 147. (2) 3 O.LR., 730.

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_ enjoy the benefit of Australian peace and order, and at the same time _ supply, or try to supply, for profit, the sinews of war to the enemy. There can be no doubt, moreover, that the ruling of the Judge on _ the construction of the Act is not clearly right, is open to serious _ debate - as has been shown in the course of the long argument _ in this Court ; and the construction of the Act ought to be settled _ for the guidance of the tribunals. There is, therefore, a primd facie _ ease for lifting this criminal prosecution from the level of ordinary _ criminal prosecutions, and for giving special leave to appeal. It . may be that the Crown's contentions will be found to be wrong ; but, if they are wrong, they should be so declared by this Court. I was at first inclined to the view that as the construction of the Act is in issue in other proceedings which do not present the com- _ plications of this case, we should refuse the application for special leave. But, on reflection, I have come to the conclusion that this _ would not be a proper ground for refusing the claim of the prosecu- tion that justice be done in this particular case. It does not remedy the grievance in this case that justice will be done in other cases. _ Moreover, if we now refuse the special leave, it may turn out that _ the other proceedings may have to be decided on other grounds ; or that the other litigants may not press their proceedings. It is _ improper to leave the rights of one set of litigants at the mercy _ of another set ; and if the accused was really guilty, and ought to have been convicted, it will be monstrous that he should escape after __ he has disregarded the Proclamations of his King and the interests of the community. The questions raised as to the validity of the Act, in whole or in part, ought also to be decided ; it has not been _ the practice of this Court to evade the decision of points because of their importance or their difficulty. The Crown here, representing the public, asks for no exceptional treatment ; it merely secks to assert its rights as an ordinary litigant. It seeks to have justice _ done between the public and the accused on the ground that the _ acquittal of the accused has been ordered under a mistake of law _ as to the construction of an Act of the gravest importance. But yet the practice of British Courts - the practice of not allow- _ ing any appeal, or even an application for a new trial to the Court

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_ to trade after the passing of the Statute. Gordon J. agreed with this __ view, and directed the jury to acquit the defendant. The jury were _ not bound in law to act on this direction, though undoubtedly it was their duty todo so. They returned a verdict of "not guilty," and we _ think it must be taken that they did so, not on any consideration of the evidence, but in deference to the opinion of the Judge. When _ that verdict was returned, neither the Judge nor the Supreme Court _ was at liberty to order a new trial or to ignore the verdict ; there _ was no course open but to enter formal judgment in pursuance of the verdict, or to discharge the defendant as if such judgment had been entered. The Crown now asks for special leave to appeal against the direction of the Judge to the jury or, in the alternative, against the judgment which followed the verdict. In our opinion the direction given by the Judge to the jury was not a judgment "within the meaning of sec. 73 of the Constitution or sec. 35 of the _ Judiciary Act 1903: it was a mere statement of the law for the _ benefit of the jury on which they should have acted though they ; were not bound to do so. Had they chosen to ignore his direction and return a verdict of guilty, he could not have insisted on any other verdict. Nor was it a decision of a Court within the meaning of see. 39 (2) of the Judiciary Act 1903, though that, for reasons _ which we shall presently state, is immaterial if it was not a " judg- ment." The result is that no appeal lies from the direction com- "plained of. We must next consider whether an appeal lies from the judgment which followed the verdict. In form we think it

does, for such a judgment is undoubtedly within the words of the Constitution and of the Judiciary Act 1903, but the substantial question is whether this Court could, on the appeal, make any order in favour of the Crown; if it could not, special leave should be refused. It is said that the case of Musgrove v. McDonald (1) decides this point against the applicant, and we think it does unless
the distinction set up in the subsequent case of Bawme v. The Com-
monwealth (2) is valid. McDonald's Case is, in our opinion, a _ clear authority for the proposition that this Court cannot on an _ appeal from a judgment either set aside the verdict on which the judgment is founded, or ignore it. If the verdict is wrong, it must

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either be set aside by means of an application to the Court in which it was obtained, or, if no power exists to set it aside by such means, it must stand with all its consequences. We have been asked to reconsider the decision in McDonald's Case (1). We do not desire to cast any doubt on the accuracy of the proposition just stated, but it is enough to say that we think the appeal jurisdiction does not allow us to set aside a judgment which appears to be the only one that could properly have been made by the Court from which the appealis brought. Our function is to determine whether the Court was right in entering judgment at the time when judgment was entered, not whether there had been mistakes in the earlier proceed- ings. That is the function of a Court of Error which scrutinizes not the judgment only but the whole record. The same end is attained, and mistakes not corrigible in a Court of Error, because not appearing in the record, are also provided for by modern statu- tory provisions in force in the Commonwealth, as they are generally in British communities, which permit, and in some cases compel, the presiding Judge at a criminal trial to reserve for the considera- tion of the Court questions of law arising in the course of the trial. No assistance can be gained from a consideration of the nature of the questions entertained or the orders made in appeals before the Judicial Committee of the Privy Council in criminal cases when it sits to scrutinize the record on appeal from a Court of Error or without the intervention of such a Court; and in any case the exercise of the Royal Prerogative by the King in Council to correct all miscarriages of justice is not analogous to the functions of this Court exercising the appellate jurisdiction conferred by sec. 73 of the Constitution. The judgment in Bawme v. The Commonwealth (2) was founded on the hypothesis that sec. 39 of the Judiciary Act 1903 gave to this Court a so-called appeal jurisdiction different from and greater than that mentioned in sec. 35 of the same Act, and that it did so by virtue of the provisions of sec. 77 of the Constitution. In our opinion the words " appeal to the High Court " whenever mentioned in sec. 39 mean the appeal mentioned in sec. 73 of the Constitution as regulated by sec. 35 of the Judiciary Act 1903, and nothing else. Sec. 39 does not create a new appellate jurisdiction, but prescribes (1) 3G.LR., 132. (2) 4C.LR., 97.

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cases, and it is this : Assuming this Court to have the power denied it : by the judgment in Musgrove v. McDonald, is this a case in which _ anew trial could be ordered? We think not. It is a well established ; i tule of the common law in England, and, as we believe, in every political community existing under the British Crown, that, though _ new trials may in certain circumstances be ordered where a verdict has passed for the Crown, a verdict of "not guilty" given by a _ jury on a sufficient indictment in a purely criminal trial conducted by a competent Court is final. It is suggested that this is so merely because of the practice of the Courts of common law, and that, pt being free of this practice, we can disregard the verdict if it has ___ been obtained by misdirection. If this be true, we can do so when- ever such a verdict is tainted by irregularity or mistake. Why _ cannot the Court set aside such a verdict whea it is against evidence or the weight of evidence, or unsatisfactory to the Court, when evidence has been wrongly admitted or rejected, when it is per- verse, or for any other reason which is sufficient to secure a new trial in a civil case? The reason is precisely that which prevents us from setting aside the verdict here. In theory, the jury are in every case the sole judges of the issues they are sworn to try, and the _ issues cannot be withdrawn from them except by some such ex- pedient as accepting a nonsuit, or withdrawing a juror, or discharging the jury for cause. In the interests of justice the Courts assumed ~ acertain control over the verdict of juries in civil and quasi-civil _ cases, and for the same reason and in favour of defendants they gradually assumed a lesser control over verdicts for the Crown in 4 purely criminal cases, but there has been no sustained attempt to interfere in any way with a verdict of "not guilty " in such cases, though the Courts showed some disposition to do so nearly three centuries ago in the "troubled times of the Commonwealth." (0) 3C.LR., 132. (2) 4O.LR., 97.

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First, out of respect for life when all felonies were capital, and, later, out of respect for character and reputation, the Courts resisted every attack on the inviolability of the verdict of "not guilty," and that inviolability has remained part of the substantive law to the present day. If this be true, what right can we have to set aside the verdict of the jury in this case under the pretence of entertaining an appeal from the sequential judgment? The Crown is not asking us to do what we should be free to do, but for the practice of the Courts at Westminster - it is asking us to interfere where hitherto there has been no interference or right to interfere. In the case of R. v. Bertrand (1) the Supreme Court of New South Wales had yielded to such a contention, and Sir John Coleridge in delivering the judgment of the Privy Council (2) considered the validity of the argument. He said : - 'It seemed not to be very seriously denied that, except for the precedent of The Queen v. Scaife (3), the Court below, in making absolute the rule for a new trial, had introduced a new practice; but it was said that this was in analogy with the whole proceeding of our Courts of Justice in regard to new trials; that as to these, as in many other instances, a wholesome improvement in our law had been made and established ; that this improvement had been made in the exercise of a wise discretion, and perhaps inherent powers, for the advancement of justice ; that new trials had commenced in civil matters, and advanced in them gradually, and, upon con- sideration, from one class of cases to another; that thence they had passed to criminal proceedings, first where the substance was civil, though the form was criminal, and thence to misdemeanours, such as perjury, bribery, and the like, where both form and sub- stance were criminal. Hitherto it was admitted that they had, except in the instance of The Queen v. Scaife, stopped short of felonies, but that the principle in all was the same; and that, where there was the same reason, the same course ought to be permitted. There may be much of truth in this historical account : and if their Lordships were to pursue it into details, it might not be difficult to show how irregular the course has been, and what

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serious to a rich man who could afford to defend himself, however frequently the Crown desired to retry him, but it would be a serious innovation so far as the poor are concerned, and such an innovation should, if introduced at all, be introduced by the Legislature by _ special legislation - as in Canada. _. Personally, I think the only cases in which our discretion should be exercised, when the leave to appeal asked for is from a judgment of acquittal in a criminal case based on a verdict of a jury, are those in which there has been some collusion or other improper action of the accused or of the jury, not in cases where the error is a mis- direction by a Judge on a question of law. ~ The Crown appoints the Judges of the Court and is responsible for the appointment of persons properly qualified to interpret the law, and if accused persons are acquitted by juries in criminal cases because of some honest mistake of law made by a Judge without 2 any collusion or fault of the accused, I do not think this Court should, taking into consideration the practice of the Courts for the last hundred years at least, grant leave to appeal against such judgments. Here the jury would have been perverse not to have acted as they did on the direction of one of His Majesty's Judges _ of the Supreme Court of the State of South Australia. It is hard to define definitely the principles upon which the prac- tice referred to is based, but I do not see any sufficient reason why, in this case, we, as Judges, should alter a long established practice of _ the Courts with respect only to persons tried in Australia for offences against Commonwealth laws. ~ In conclusion, after hearing the judgments just delivered by my brothers Isaacs and Higgins holding that we as a Court should, in this case, exercise our discretion and grant leave to appeal because, amongst other reasons, the nature of the offence in time of war lifts it out of ordinary cases, I think it right to add that, in my opinion, we have no tight to adopt one practice in time of war

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