Courts and Judges - Federal Court of Australia - appeal - jurisdiction to entertain appeal from a judgment of an intermediate appellate court setting aside a conviction for a criminal offence tried summarily and substituting a judgment of acquittal.

Federal Court of Australia Act 1976 (Cth), ss.24, 28

Australian Capital Territory Supreme Court Act 1933 (Cth), s.11

Magistrates Court Act 1930 (A.C.T.), ss.207, 208, 214, 218

Counsel for the appellant : Mr G. Morrish, QC and Mr R. Webster

Solicitors for the appellant : Director of Public Prosecutions

Counsel for the respondent : Mr T.E.F. Hughes, QC and Mr S.F.C. Wilcox

Solicitors for the respondent: Abbott Tout Russell Kennedy

1. Orders that the motion as to the competency of the appeal herein notice of which was given on 5 April 1991 be dismissed.

2. Reserves the question of the costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On 29 January 1990 the respondent, Stuart Hearne Pilkinton, was convicted in the Magistrates Court of the Australian Capital Territory of the common law offence of attempting to pervert the course of justice, a penalty of a fine of $400 being imposed. From that conviction and sentence the respondent appealed to the Supreme Court of the Australian Capital Territory, the respondent to that appeal being Frederick Gordon Hatty, the present appellant. The appeal was conducted on the transcript of the oral evidence and on the documentary material that had been before the Magistrates Court; no additional evidence was placed before the Supreme Court. On 23 July 1990, the Supreme Court set aside the conviction and entered in its place a judgment of acquittal. The respondent was accordingly discharged in respect of the alleged offence. A notice of appeal to this Court from the whole of the judgment of the Supreme Court was filed on 9 August 1990. The notice of appeal seeks orders that the decision of the Supreme Court be set aside "and the conviction of the respondent (appellant) by the Magistrate and the sentence imposed be restored".

2. By notice of motion dated 5 April 1991, the respondent gave notice that, when the appeal was called on for hearing, the Court would be moved, pursuant to Order 52, rule 18 of the Federal Court Rules, for an order dismissing the appeal as incompetent. Argument on the motion was heard on 8 April 1991. The Court reserved its decision on the motion and proceeded to hear argument on the substantive appeal. That argument has not been concluded but the Court is in a position to give judgment on the motion which it now proceeds to do.

3. The ground upon which it is submitted that the appeal is incompetent is that the Supreme Court entered the judgment of acquittal after a hearing on the merits and that, in such circumstances, no appeal lies to this Court from the judgment so entered. The contention that the appeal is incompetent is opposed by the appellant on the ground that, while ss.24 and 28 of the Federal Court of Australia Act 1976 (Cth) do not empower this Court to entertain an appeal from a judgment of acquittal entered at first instance, the position is different where the judgment of acquittal is entered by an intermediate appellate court consequent upon the setting aside, at the suit of the convicted person, of his conviction by a court of first instance. Both parties contend that the issue is resolved in their favour by what was said by the Justices of the High Court who formed the majority in Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21. It is, therefore, necessary to examine that decision in some detail but, before doing so, reference should be made to relevant statutory provisions.

4. It is common ground between the parties that the provisions of s.477 of the Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory ("the Crimes Act") empowered the Magistrates Court to hear and determine summarily the charge laid against the respondent.

5. The jurisdiction of the Supreme Court to entertain the appeal by the respondent against his conviction and sentence had its foundation in s.11 of the Australian Capital Territory Supreme Court Act 1933 (Cth) and Part XI of the Magistrates Court Act 1930 (A.C.T.).

6. Section 11 of the Australian Capital Territory Supreme Court Act provides, inter alia, that the Supreme Court has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance or enactment, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory.

7. Sections 207, 208, 214 and 218 of the Magistrates Court Act are within Part XI of that Act. Section 207(1) provides:

"(1) The appellate jurisdiction of the Supreme Court with

respect to decisions of the Magistrates Court under this Ordinance

extends to the hearing and determination of the following appeals

and to no others, namely:

(a) appeals to which Division 2 of this Part applies; and

(b) appeals from decisions of the Magistrates Court by way

of orders to review made in accordance with Division 3

of this Part."

By virtue of s.208(1)(a), Division 2 of Part XI applies to an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under s.477 of the Crimes Act. Section 214 applies to such an appeal. It provides, inter alia, that, in hearing the appeal, the Supreme Court is to have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact (s.214(2)). The Court may, if it thinks it necessary or expedient to do so in the interests of justice, or if the parties consent, receive further evidence (s.214(3)). Section 218(1) provides:

"(1) On an appeal to which this Division applies, the

Supreme Court may -

(a) affirm, reverse or vary the conviction, order,

sentence, penalty or decision appealed from;

(b) give such judgment, or make such order, as, in all the

circumstances, it thinks fit, or refuse to make an

order; or

(c) set aside the conviction, order, sentence, penalty or

decision appealed from, in whole or in part, and remit

the proceedings to the Magistrates Court for further

hearing and determination, subject to such directions

as the Supreme Court thinks fit."

8. Section 24(1) of the Federal Court of Australia Act confers jurisdiction on this Court to hear and determine appeals from judgments of the Supreme Court of a Territory. Section 28(1) of that Act provides:

"(1) Subject to any other Act, the Court may, in the

exercise of its appellate jurisdiction:

(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment, or make such order, as, in all the

circumstances, it thinks fit, or refuse to make an

order;

(c) set aside the judgment appealed from, in whole or in

part, and remit the proceeding to the court from which

the appeal was brought for further hearing and

determination, subject to such directions as the Court

thinks fit;

(d) set aside a verdict or finding of a jury in a civil

proceeding, and enter judgment notwithstanding any

such verdict or finding;

(e) set aside the verdict and judgment in a trial on

indictment and order a verdict of not guilty or other

appropriate verdict to be entered;

(f) grant a new trial in any case in which there has been

a trial, either with or without a jury, on any ground

upon which it is appropriate to grant a new trial; or

(g) award execution from the Court or, in the case of an

appeal from another court, award execution from the

Court or remit the cause to that other court, or to a

court from which a previous appeal was brought, for

the execution of the judgment of the Court."

9. In Davern v. Messel, supra, the High Court had before it two applications for special leave to appeal. The first of those applications raised for the Court's consideration the question whether this Court "is competent to entertain an appeal from a judgment of a judge of the Supreme Court of a Territory quashing a conviction imposed by a magistrate for an offence against the law of the territory". The matter arose in this way. The respondent, Professor Messel, after a hearing before the Chief Stipendiary Magistrate of the Northern Territory, was convicted of certain offences related to the taking of fish and wild life and ordered to pay certain fines. He appealed from those convictions and orders to the Supreme Court of the Northern Territory which directed that the appeal be heard as a rehearing, not on the material before the Chief Stipendiary Magistrate, but on viva voce evidence placed before the Supreme Court by the complainant. After a good deal of evidence had been called, but before the complainant's case had been closed, it was agreed between the parties that they should argue a number of questions of law which, if decided against the complainant, would be determinative of the appeals. The Supreme Court concurred in this course and, after hearing argument, decided those questions adversely to the complainant, allowed the appeals and quashed the convictions.

10. The complainant appealed to this Court which, by majority, upheld an objection to the competency of the appeal. The complainant then applied to the High Court for special leave to appeal from the decision of this Court.

11. The High Court, by majority, Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ., Murphy and Deane JJ. dissenting, granted special leave to appeal, allowed the appeal and remitted the matter to this Court to proceed in accordance with the majority judgment.

12. The joint reasons for judgment of Mason and Brennan JJ. provide no support for the contention that the present appeal is incompetent. At pp 55-6, their Honours said:

"The powerful considerations which made it unfair and unjust

that a man should be prosecuted twice for the same offence

seem to lose some of their force when an appeal is sought to

be equated with a second prosecution. A second prosecution

for the same offence immediately raises the spectre of

persecution. Although the pursuit of a Crown appeal might

be carried to the point of persecution, the risk of that

occurrence is more remote, if only because the accused would

be protected by the courts against an appeal which was

instituted mala fides or amounted to an abuse of process

and, as already noted, the courts would not go behind a

jury's verdict. Moreover, the Crown has a legitimate

interest in securing a review of a trial, more particularly

if it appears that the trial judge has made an erroneous

ruling on a question of law or departed from correct procedures.

However, the body of authority to which we have referred is

altogether too strong to justify its overthrow. Indeed, the

introduction of legislative provisions in many States

authorizing Crown appeals on questions of law on the footing

that the decision of the Court of Criminal Appeal will leave

the acquittal undisturbed makes it impossible now for us to

say that the rule against doubt jeopardy does not extend to

an appeal. And once that is accepted it is difficult, if

not impossible, to challenge the foundation on which the

principle of interpretation is based. Accordingly, we

conclude that Mastertouch was rightly decided.

The question then is whether the principle extends to deny

an appeal by the Crown from a judgment of acquittal by a

court of criminal appeal following a successful appeal by

the accused against his conviction at first instance."

The reference to "Mastertouch" is, of course, a reference to Thompson v. Mastertouch T.V. Service Pty Ltd (No.3) [1978] FCA 24; (1978) 19 ALR 547. Later, at p 59 of the report, their Honours said:

"Traditionally it has been thought that unfairness and

injustice may result to a defendant from the reversal of an

acquittal obtained at first instance but it is difficult to

see how these considerations can apply to the quashing of an

order reversing a conviction which has already been obtained."

Following a reference to the approach taken by the Supreme Court of the United States, their Honours continued (at pp 60-61):

"The fundamental question, however, as it seems to us, is

whether once the defendant appeals from a conviction at

first instance, thereby setting the appellate process in

motion, it is legitimate for the prosecutor by recourse to

the same process to have an error on the part of the first

appellate court corrected. As Friedland comments, at p 293,

once the case is in the appellate hierarchy there is no

legitimate reason why the matter should not be determined by

the higher court. The exercise, on proper occasions, of the

further appellate jurisdiction is important to ensure the

due administration of justice in the individual case as well

as for the general administration of the criminal law

(Bertrana (1867) LR 1 PC, at p 530).

And it is of some significance that in Australia courts of

criminal appeal for over half a century have exercised the

power to order a new trial on an appeal by a defendant from

a verdict of conviction with the consequence that a new

trial pursuant to such an order constitutes no violation of

the rule against double jeopardy. This circumstance is a

relevant consideration in determining whether the concept of

double jeopardy as it has developed in this country extends

to a new trial ordered by a second appellate court on appeal

from a first appellate court when it erroneously entered a

judgment of acquittal instead of ordering a new trial."

13. Their Honours placed no reliance on the circumstance that the quashing of the convictions by the Supreme Court of the Northern Territory was founded upon an erroneous view of the relevant law. There is nothing in their Honours' reasoning to suggest that their conclusion depended upon an examination of the question whether the hearing before the intermediate appellate court might properly be described as a hearing "on the merits". Mr Hughes QC, senior counsel for the respondent, submits, however, that the reasoning of Gibbs C.J. (in whose judgment Wilson and Dawson JJ. concurred) demonstrates that those matters are of critical importance in determining the competence of an appeal such as that now before this Court. To support this submission he refers to a number of passages in the reasons for judgment of Gibbs C.J.

"When the prosecution seeks to appeal from an

acquittal, the rule against double jeopardy has an indirect

application. An appeal is a remedy given by statute; the

scope of the appeal must be governed by the terms of the

enactment creating it: Commissioner for Railways (N.S.W.)

v. Cavanough [1935] HCA 45; (1935) 53 CLR 220, at p 225. The question

whether an appeal lies from an acquittal therefore must be

decided as a matter of statutory interpretation. However it

is a principle of interpretation that no statute will be

construed as abrogating a fundamental principle of the

common law unless an intention to do so is clearly

expressed. The view has been taken that the common law rule

against double jeopardy would be infringed by allowing an

appeal from an acquittal, since the rule requires that an

acquittal be treated as final."

After referring to Benson v. Northern Ireland Road Transport Board (1942) AC 520 at p 526 and to certain decisions said to be inconsistent with it, Gibbs C.J. continued at pp 32-3:

"Notwithstanding these decisions, there is in my opinion no

sufficient reason to question the rule, laid down in Benson

v. Northern Ireland Road Transport Board, that a statute

will not be understood to confer a right of appeal from a

decision dismissing a criminal charge unless it does so

distinctly. It is a rule to which it may be assumed the

parliamentary draftsmen have had regard in framing

legislation enacted since that time. The rule was in my

opinion correctly applied in Thompson v. Mastertouch T.V.

Service Pty Ltd (No.3) [1978] FCA 24; (1978) 38 FLR 397; 19 ALR 547.

Section 24 of the Federal Court of Australia Act is quite

general in its terms. The provisions of s.28(1)(e) indicate

that the court on appeal would have no power to order a

verdict of guilty to be entered and therefore no power to

set aside a verdict of not guilty. It is unlikely that the

draftsman, having specifically referred to a verdict of not

guilty, would have intended that a verdict of guilty should

be embraced by the general words 'or other appropriate

verdict', and those words have a further function to fulfil

even if they do not refer to a verdict of guilty, as Deane

J. pointed out in Thompson v. Mastertouch T.V. Service Pty

Ltd (No.3) (1979) 38 FLR at p 410; 19 ALR at p 558.

The general words of s.28(1)(f) cannot be understood as

intended to give power to order a new trial after a verdict

of not guilty has been entered. This view is strengthened

by the contrast between the general words of these

provisions and the express terms of s.28(5) which recognize

that the Crown has a right to appeal against sentence. If

Mastertouch is wrong, it would seem to follow that s.24

would give an unqualified right of appeal to the Federal

Court from a judgment of acquittal based on a jury's finding

of not guilty: see per Deane J. (1978) 38 FLR, at p 408;

19 ALR, at p 556; that would be an unprecedented

legislative innovation, at least in England or Australia. I

accordingly respectfully agree with the conclusion of Deane

J. in Thompson v. Mastertouch T.V. Service Pty Ltd (No.3)

that the general words of s.24 do not affect the right of

the subject to be spared the jeopardy of an appeal from an

acquittal after a hearing on the merits of a criminal charge

by a court of competent jurisdiction (1978) 38 FLR, at

pp 401, 403-404, 412-413; 19 ALR at pp 550, 552, 560.

Room may remain for argument on the question when a hearing

is not one on the merits, but that question raises no

difficulty in the present case.

To approve of the decision in Thompson v. Mastertouch T.V.

Service Pty Ltd is not, however, to resolve the present

question, since, as I have said, that decision dealt with

the case of an appeal brought directly from an acquittal.

We are now concerned with the case of an appeal brought from

a decision given on an appeal from a conviction. The

question is whether, in such a case, the general words of

the statute permitting the second appeal should not be

understood to confer on the ultimate appellate court power

to correct a patent error of law which has been committed by

the first court of appeal. I can see no reason in principle

or authority why in such a case the general provisions of

the statute should be given a restricted meaning."

15. His Honour identified (at p 33) the question for determination as being whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. His Honour then said:

"It seems to me neither unfair nor oppressive to restore a

conviction that was set aside on erroneous legal grounds."

After examining relevant authorities, his Honour said (at p 40):

"The authorities favour the view which in my opinion accords

with commonsense and the interests of justice, that if a

convicted person secures the quashing of a conviction on an

erroneous legal ground, a further appellate court has the

power to correct the error of law and to restore the

conviction which should never have been disturbed.

There can be no doubt that under s.24 of the Federal Court

of Australia Act the Federal Court is competent to hear and

determine an appeal from a decision of the Supreme Court of

the Northern Territory given on an appeal under the Justices

Act (N.T.) affirming a conviction. There is in my opinion

no reason why it cannot also hear and determine an appeal

from a decision given by that Supreme Court quashing a

conviction. The fact that Gallop J. conducted the appeal as

a rehearing does not affect the position. The appeal given

by the Justices Act (N.T.) is not either an appeal to

quarter sessions or the successor of or modern equivalent to

such an appeal, and if quarter sessions appeals occupy a

special position, that does not affect the present question.

In any case, the appeal was not from a judgment given on a

rehearing, because Gallop J. had not completed the taking of

the evidence; he made no adjudication on the facts and his

decision was entirely of questions of law.

For these reasons I hold that the Federal Court had

jurisdiction to entertain the present appeal and that the

objection to competency was wrongly allowed."

16. Mr Hughes submits that Gibbs C.J. reached the conclusion that the appeal to this Court was competent only because the decision of the Supreme Court of the Northern Territory was not an adjudication on the facts but only upon questions of law. We are unable to accept this submission. It is clear from the passage last cited from his Honour's judgment that that circumstance was not the decisive factor but an additional circumstance supporting the conclusion that the appeal to this Court was competent. We think it follows clearly from what his Honour said that, even had the Supreme Court completed the hearing on which it had embarked and at the conclusion of that hearing quashed the convictions on any grounds, s.24 of the Federal Court of Australia Act would have operated to permit an appeal to be brought to this Court.

17. Mr Hughes relied upon the statement by Gibbs C.J. at pp 32-3 that the provisions of s.28(1)(e) of the Federal Court of Australia Act indicate that this Court would have no power to order a verdict of guilty to be entered and, therefore, no power to set aside a verdict of not guilty. His Honour's statement was clearly directed to the different situation where the verdict of not guilty is entered at first instance. His Honour was not, in that statement, dealing with the issue that arises in this case.

18. The conclusion we have reached makes it unnecessary to consider the nature of the appeal to the Supreme Court of the Australian Capital Territory for which ss.207, 208, 214 and 218 of the Magistrates Court Act provide (a matter discussed in Petreski v. Cargill (1987) 18 FCR 68) save to observe that that appeal is not an appeal by way of hearing de novo or otherwise an appeal which could be described as the equivalent of a quarter sessions appeal. It is also unnecessary to consider the question whether the hearing which took place before that Court is properly to be described as a hearing "on the merits".

19. The objection to competency is, therefore, dismissed. The Court will hear the parties on the question of the costs of the motion notice of which was given on 5 April 1991.