REGINA v CHENG [1999] NSWCCA 373 | Case summary

JUDGMENT 1 SPIGELMAN CJ: This matter comes before the Court pursuant to an amended Notice of Appeal dated 16 November 1999 in which the Crown seeks to appeal from what it submits is an interlocutory judgment or order of his Honour Judge Woods QC of the District Court to which the amended Notice of Appeal refers in the following terms, "That there was insufficient evidence to support the count of conspiracy". 2 The matter has been brought before the Court on the basis of some urgency. The jury in the case has not been discharged, nor has a verdict in the case been delivered. The matter has been stood over for several days and is listed again tomorrow. It is desirable, if this Court is able to do so, for the matter to be determined today. 3 The case involves John Wang Kim Cheng who is charged that between 1 May 1997 and 31 July 1997 at Kariong in the State of New South Wales he did conspire with certain named persons to manufacture a prohibited drug. At the conclusion of the evidence for the Crown, Mr Byrne SC, who appeared for the accused at the trial and in this Court, submitted that there was no case to answer. 4 By judgment delivered on 15 November 1999 his Honour Judge Woods reviewed the evidence and concluded that there was "no evidence beyond reasonable doubt of shared intention", which his Honour identified as a critical element in the charge of conspiracy. In his final conclusion his Honour said: "My conclusion is that no reasonable jury could properly convict on this charge. Accordingly I will direct the jury that there is no case to answer and that the proper verdict is a verdict of not guilty". 5 His Honour has not yet directed the jury in those terms but, unless restrained by this Court, proposes to do so. 6 The first issue before the Court is whether or not this Court has jurisdiction to hear the appeal. That jurisdiction is said by the Crown to be conferred by s5F(2) of the Criminal Appeal Act 1912 which provides: "The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies". 7 The rights of an accused party are different, in the sense that an appeal lies only if this Court grants leave or a judge of the court of trial certifies that the matter is a proper one for determination on appeal. The Director of Public Prosecutions may appeal without leave. The issue before the Court is whether or not this Court has jurisdiction under s5F(2). 8 The submissions to the Court have focused on the one hand on the word "interlocutory" and on the other hand on the words "judgment or order". 9 The Crown relies for the proposition that the decision is "interlocutory" on the principle that the test for finality is not a matter of practical reality but a matter of legal effect. It relies in this respect on the frequently cited reasons of his Honour Gibbs J in Licul v Corney (1976) 50 ALJR 439 at 443-444 as affirmed by his Honour with the agreement of Mason and Murphy JJ in Port of Melbourne Authority v. Anshun (No 1) (1980) 147 CLR 35 at 38. 10 It may be taken to be accepted that the relevant test of an interlocutory judgment is on legal effect rather than practicality. See also Southern Cross NL v All Risks Insurance Company Limited (No 2) (1990) 21 NSWLR 200 at 207-208 and 217. 11 As to the second aspect of the matter on which the Crown relies, namely whether or not the decision is a "judgment or order", the Crown, in its written and oral submissions, places particular reliance on the finality of the decision, namely the practical consequences of the direction to the jury. 12 The usual form of direction given in this State is to direct the jury as a matter of law that the judge has concluded that the evidence given could not establish the essential elements of the offence. It is also usual to indicate to the jury that they have no choice in the matter because of the ruling of law and the question is then asked of the foreman of the jury, "Do you in accordance with my direction find the accused not guilty of the relevant offence" and the foreman will necessarily say "Yes". 13 In this respect the Crown relies on the decision of this Court in R v Bozatsis & Spanakakis (1997) 97 ACrimR 296. In that case one of the issues before the Court was an order made by the trial court to the effect that the whole of the evidence of the Crown was rejected. Gleeson CJ said at 303-304: "Bellear DCJ in a passage quoted above, dealt with par 2 of the Notice of Motion by saying he was making an order excluding, 'all prosecution evidence' against the respondents. What is important is not his Honour's use of the word 'order', but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order." 14 His Honour focused on the substance and effect of the decision in order to categorise it as a "judgment or order". In this his Honour emphasised that the effect was to refuse to permit the Crown "to seek to make a case" at all. 15 In the present case, of course, the Crown has made a case. His Honour has found that it was defective in a particular respect sufficient to conclude that there was no evidence of what his Honour indicated was an essential element of the offence. 16 The Crown submits that there is an analogy between the position in Bozatsis & Spanakakis and that in this case, insofar as this, as any other case of an erroneous affirmative decision of a trial judge on a no case to answer submission, has the potential to bring about an unjust acquittal. It submits that if there is an error in a decision of this character, it follows that the evidence was in fact capable of satisfying a jury beyond reasonable doubt of the guilt of the accused, it remains possible that a jury will be so satisfied and that there will be a finding of guilt. It submitted that to erroneously deny the community the jury's decision on a case that should have required its decision, denies justice and procedural fairness. 17 In this respect the Crown's submissions are reminiscent of the reasoning of Brennan J in the case of Jago v District Court of New South Wales (1989) 168 CLR 23 at 49-50 where his Honour said in the context of considering the circumstances in which the court should order a stay of proceedings: "Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim." 18 There is some force in the submission of the Crown that an erroneous decision on the submission that there was no case to answer and a consequential direction to the jury to acquit, is capable of disappointing community expectations with respect to the conduct of the criminal justice system. 19 If there are such consequences, it requires a statutory provision, in my opinion, of a clear and unambiguous character to avert them. The reason for this is because of the close relationship between the decision sought to be challenged in the present case and a verdict of acquittal, from which there has never been a right of appeal on the part of the Crown. 20 No doubt in the history of criminal justice in this State and in other States and in the United Kingdom from which this tradition has emerged, community expectations have been disappointed not only by decisions of judges to direct verdicts of acquittal, but also by verdicts of acquittal delivered by juries. Nevertheless, the proposition that the Crown cannot appeal from a verdict of acquittal is of long standing. It reflects a fundamental principle, of a character which requires clear statutory provision to modify 21 The matter is not without authority in this State. It has been considered in the case of R v Lethlean (1995) 83 ACrimR 197. The issue in that case was the opposite of this. An attempt was made by an accused to appeal from the refusal of a trial judge to direct the jury to acquit. In submissions to this Court the Crown relies on this distinction. It submits that the decision in Lethlean did not have a relevant degree of finality, in the sense the criminal trial did proceed. Whereas a decision adverse to the Crown on a no case to answer submission, does have the requisite degree of finality. 22 Nevertheless the reasoning of Sheller JA in Lethlean, even if the issue before the court was different, is pertinent. His Honour said at 204-5: "In my opinion the words used in s5F(3) 'judgment or order' no more embrace a direction to the jury to acquit or the decision upon which that direction is based than the same words when used in s73 of the Constitution. In the present case if the trial had been before a judge and jury and the judge had concluded that there was no case to answer and directed the jury to acquit, the direction would have been neither a judgment nor an order. Nor would a judge's statement that he would not give such a direction even though the judge might give lengthy reasons". 23 His Honour made extensive reference to the High Court decision in R v Snow (1915) 20 CLR 315 which concerned the proper construction of the words "judgment or order" in s73 of the Constitution. That judgment is pertinent to the decision that has to be made in these proceedings as to the proper construction of the words "interlocutory judgment or order" in s5F(2). 24 In Snow Griffith CJ said at 322: "The Common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language." 25 His Honour went on to quote from a passage in the first edition of Maxwell on Statutes to the following effect: "It is in the last degree improbable that the Legislature would overthrow fundamental principles...or depart from the general system of law, without expressing its intention with irresistible clearness, and it would therefore be absurd to give any such effect to general words simply because in their widest and most abstract sense they admit of such an interpretation." 26 That principle in the law of statutory interpretation, and the specific quotation from Maxwell on Statutes, has been applied on a number of occasions in the High Court. See for example Potter v Minahan (1908) 7 CLR 277 at 304. 27 The most authoritative recent exposition of the relevant principle of law of statutory interpretation is as set out in the joint judgment of six members of the High Court in Bropho v Western Australia (1990) 171 CLR 1 at 17-18 where their Honours said: "One can point to other 'rules of construction' which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such 'rules' are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively, which would deprive a superior court of power to prevent an unauthorised assumption of jurisdiction or which would take away property without compensation. The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' ( Potter v Minahan at 304)". (References other than the last, omitted.) 28 There are many formulae in which this principle of the law of statutory interpretation have been expressed including such words as, "express words of plain intention", "clear and unambiguous" words and "unmistakable and unambiguous". I have outlined a series of these authorities and references for them and discussed these principles in my Sir Ninian Stephen lecture "Statutory Interpretation: Identifying Linguistic Register" to be published in the Newcastle University Law Review and accessible at www.lawlink.nsw.gov.au/sc. 29 This aspect of the law of statutory interpretation applies to the fundamental principle that the Crown does not have a right of appeal against a verdict of acquittal, as the High Court determined in Snow. 30 A similar issue arose in Wall v The King; Ex Parte The King & Won & Wah On (No. 1) (1927) 39 CLR 245, where the court had before it an appeal against an order nisi for the issue of a writ of habeas corpus. In a joint judgment the court said at 250: "A recent case in the House of Lords, Secretary of State for House Affairs v O'Brien (1), in which the previous authorities are cited and examined, establishes the proposition that, according to the law of England, no appeal lies from an order of a competent Court for the issue of a writ of habeas corpus discharging a prisoner from custody unless an appeal is specifically given by the Legislature and that the Court should not hold that such an appeal is given merely because of general words in their natural meaning sufficient for such a purpose. By virtue of the Supreme Court Ordinance 1911, as amended by Ordinance No 10 of 1922, appeal from the Supreme Court of the Northern Territory to this Court will lie by leave of this Court from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory, whether in Chambers or in Court, including also any refusal of such Judge to make any order ( Porter v The King (2)). Applying to the present case the rule laid down by the House of Lords, we think we are bound to say, in the words of the Earl of Birkenhead LC, that an enactment couched in terms so general does not avail to deprive the subject of an ancient and universally recognized constitutional right." 31 Similar principles are referred to in the judgment of Deane J, when a judge of the Federal Court, in Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397 esp at 407-411, referred to by his Honour in his judgment in the High Court in Rohde v Director of Public Prosecutions (1986) 161 CLR 119, where his Honour said at 128-129, in the context of referring to appeals by the Crown against sentence: "A conferral of such a prosecution right of appeal infringes the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice in a manner comparable to a conferral of a prosecution right of appeal against a trial acquittal. As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language". 32 In my opinion it is appropriate to approach the proper construction of s5F by the application of this well known presumption, that Parliament does not intend to modify fundamental principles or common law rights except in clear and unambiguous language. It is not appropriate to submit the words "interlocutory judgment or order" to an analysis based on a dictionary definition of each of the words, without the application of the principle of the law of statutory interpretation to which I have referred. 33 The proposition that the Crown does not have a right of appeal against acquittal is too well established for us to interpret the words used by Parliament in s5F(2) as extending to a direction to acquit by a trial judge. It constitutes a fundamental principle of such significance that only clear and unambiguous language would lead to the conclusion that an appeal by the Crown lies against such a direction. 34 The language in s5F(2) is not of that character. It is frequently the case that general words must be read down in order to comply with the actual or presumed intent of Parliament. Absent clear language, however, Parliament should be presumed not to interfere with the fundamental principle to which I have referred. 35 For those reasons I am of the opinion that the Court does not have jurisdiction to hear the appeal and that the proceedings should be dismissed. 36 DUNFORD J: I agree with the order proposed and the reasons given by the Chief Justice. I only want to add this. At the conclusion of his ruling on the no case application his Honour has reached a conclusion but he has not made any order or entered any judgment, interlocutory or otherwise. Unless this Court interferes, his Honour will direct the jury, which in accordance with such direction will return a verdict of not guilty. 37 The judge will then discharge the respondent, such discharge will constitute a judgment, but it will be a final judgment of acquittal against which, as the Chief Justice has pointed out, there is no right of appeal. Until that point it seems to me there has been, and will be, no order for judgment arising out of his Honour's ruling. 38 KIRBY J: I agree with the reasons given and the order proposed. 39 SPIGELMAN CJ: The order is as indicated.

REGINA v CHENG

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