Rohde v Director of Public Prosecutions

Rohde v Director of Public Prosecutions - [1986] HCA 50 - HCA 1986 case summary — Zoe

[28]

A statutory conferral of a prosecution power of appeal against the sentence passed by a trial court upon a person convicted of a criminal offence has been rightly described as "a marked departure from the principles theretofore governing the exercise of penal jurisdiction" (per Dixon J., Williams v. The King [No. 2] [9] ) and as cutting across "time-honoured concepts of criminal administration": per Barwick C.J., Peel v. The Queen [10] . Such a prosecution appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal": per Isaacs J., Whittaker v. The King [11] . "The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court": Reg. v. Tait [12] . 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: cf. Reg. v. Holder [13] . 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: cf. Thompson v. Mastertouch T.V. Service Pty. Ltd. [No. 3] [14] ; Davern v. Messel [15] . That would be so even if the view were taken that, contrary to what is said above, the rationale of the rule against double jeopardy should be seen as confined to the determination of guilt or innocence to the exclusion of the question of quantification of punishment (see Friedland, Double Jeopardy (1969), pp. 289-291; United States v. DiFrancesco [16] ) since that established principle of construction extends to require clear and unambiguous words before a statute will be construed as effecting, to the detriment of the subject, any fundamental alteration to the common law principles governing the administration of justice.

[30]

Obviously enough, the Victorian Parliament was not unconscious of the fundamental departure from traditional practice in that State involved in the enactment in 1970 of s. 567A of the Crimes Act 1958 Vict.. In its original form, that section conferred jurisdiction upon the Full Court of the Supreme Court of Victoria to entertain an appeal against a sentence passed on a person convicted on indictment and conferred the power or authority to invoke the jurisdiction upon the State Attorney-General. The section indicated, in clear terms, that the Attorney-General's power to invoke the jurisdiction was not to be delegated. It was to exist only in a case where the Attorney-General himself considered "that a different sentence should have been passed" and was himself "satisfied that an appeal should be brought in the public interest". This confinement of the power of appeal against sentence to the case where the designated recipient of it was himself satisfied that "the public interest" required that a prosecution appeal against sentence be brought ensured that the general considerations of ordinary fairness which militate against such an appeal should be weighed at the highest level against the considerations supporting an appeal in the circumstances of the particular case. The power continued to be similarly confined when, by subsequent amendment, the Victorian Director of Public Prosecutions ("the Victorian Director") was substituted for the State Attorney-General as the designated recipient of it. Moreover, both in its original form and as subsequently amended, s. 567A has underlined the non-delegable nature of the power of appeal which it confers by requiring (sub-s. (2)) that notice of appeal setting forth the grounds thereof be given to the respondent "by serving upon him notice in writing signed by the Director of Public Prosecutions [originally the Attorney-General] personally ". It is well settled that the requirement that a notice of appeal be signed personally excludes signature by an agent or delegate: see, generally, Motel Marine Pty. Ltd. v. I.A.C. (Finance) Pty. Ltd. [17] .

[31]

Were it not for the decision of this Court in Peel, there would be much to be said for the view that the general provisions of s. 68(2) of the Judiciary Act 1903 Cth should not, upon proper principles of statutory interpretation, be construed as disclosing a legislative intent to infringe traditional common law principles by operating upon s. 567A of the Victorian Crimes Act so as to empower an appropriate officer of the Commonwealth to institute an appeal to the Full Court of the Supreme Court of Victoria against a sentence pronounced on a person convicted on indictment of an offence against a law of the Commonwealth. It is, however, plain that the effect of the decision in Peel is that the provisions of s. 68(2) must, presumably because of their special character as provisions adopting the statutory laws of the States (see below), be construed as having that effect. They operate, by analogy, upon s. 567A so as to confer upon the holder of the Commonwealth office analogous to that of the Victorian Director a like power of appeal in relation to a sentence imposed upon conviction of a Commonwealth offence to that enjoyed by the Victorian Director in relation to a sentence imposed upon conviction of a State offence. Indeed, it was not submitted to the contrary on behalf of the applicants in the present case. The applicants' argument assumed that, but for the establishment of the office of the Commonwealth Director of Public Prosecutions ("the Commonwealth Director") by the Director of Public Prosecutions Act 1983 Cth ("the Commonwealth Act"), the Attorney-General of the Commonwealth would have had a statutory power to initiate an appeal against the sentence which had been imposed upon each of the applicants on conviction of an offence against a law of the Commonwealth and that such a power of appeal could now be exercised by the Commonwealth Director in respect of a prosecution which he "has instituted or taken over, or is carrying on, for an offence against a law of the Commonwealth": s. 9(7) of the Commonwealth Act. What the applicants dispute is that the exercise of that power, which is so carefully confined by State law to the Victorian Director himself, can be delegated by the Commonwealth Director to any member, however junior, of his staff with the consequence that the Commonwealth Director is not required to form any view for himself about whether the sentence imposed is inadequate or whether, on balance, the public interest requires that an appeal be brought.

[34]

The starting point of a consideration of those conflicting submissions must be the settled principle that a statutory provision is not to be construed as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights or immunities except to the extent that it uses words that point clearly and unambiguously to a legislative intent in that regard. Conformably with that settled principle, where a statutory power infringes the traditional common law rules of administration of criminal justice to the disadvantage of the subject but mitigates the infringement by the erection of statutory safeguards, another statutory provision should not be construed as abolishing or weakening those safeguards in the absence of a clear and unambiguous legislative intent to achieve such an effect. That being so, the general provision of s. 31(1) of the Commonwealth Act permitting delegation should not, in the absence of a clear and unambiguous legislative intent in that regard, be construed as demolishing or diminishing by a sidewind the statutory safeguards contained in s. 567A of the Crimes Act Vict. and caught up by s. 68(2) of the Judiciary Act, namely, that the power to appeal against sentence can only be exercised by the designated statutory recipient of the power personally and then only in a case where he is satisfied that, in all the circumstances, such "an appeal should be brought in the public interest". The general words of s. 31(1) authorizing delegation of all or any of the Commonwealth Director's powers under the Act are plainly inadequate to evidence a clear and unambiguous legislative intent to deprive a person sentenced on conviction on indictment in Victoria of an offence against a law of the Commonwealth of the safeguard that he is not to be subjected to the renewed jeopardy of an appeal on the grounds of the inadequacy of the sentence imposed at the trial unless the Commonwealth officer analogous to the Victorian Director has considered the matter and is personally satisfied that the particular appeal should be brought in the public interest. To the contrary, a consideration of the source and nature of the Commonwealth Director's power of appeal against sentence makes it plain that the words of s. 31(1) can readily and sensibly be construed as not extending to it. I turn to explain why that it so.

[36]

I think that by s. 5(D) [sic] 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 5(D) [sic] 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. When Williams [No. 2] came before this Court on an application for special leave to appeal, the Court was equally divided on the question whether the effect of the operation of s. 68(2) of the Judiciary Act was that the Commonwealth Attorney-General possessed a power or authority to appeal to the State Court of Criminal Appeal against a sentence imposed upon conviction of an offence against Commonwealth law. Rich, Starke and Dixon JJ. concluded that he did. Gavan Duffy C.J., Evatt and McTiernan JJ. were of the view that he did not. The main judgment favouring the view which was subsequently to prevail in Peel was that of Dixon J. Rich J. [22] expressed his agreement with the judgment of Jordan C.J. in the Court of Criminal Appeal while Starke J. indicated his concurrence in the reasoning of Dixon J. In the course of his judgment, Dixon J. [23] gave an explanation of the identification of the Commonwealth Attorney-General as the repository of the power, which closely corresponded with that which had been given by Jordan C.J. in the Court of Criminal Appeal: The New South Wales section gives the right of appeal against sentence to the Attorney-General of the State. It gives it to him in virtue of his office. He is the proper officer of the Crown in right of the State for representing it in the courts of justice. When sec. 68(2) speaks of the "like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth," it recognizes that the adoption of State law must proceed by analogy. The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General. I do not feel any difficulty in deciding that, under the word "like" in the expression "like jurisdiction," the functions under sec. 5D of the State Attorney-General in the case of State offenders fall to the Federal Attorney-General in the case of offenders against the laws of the Commonwealth. 1. (1971) 125 C.L.R. 447. 2. (1934) 50 C.L.R. 551. 3. (1934) 34 S.R. (N.S.W.) 143. 4. (1934) 34 S.R. (N.S.W.), at p. 152. 5. (1934) 50 C.L.R., at p. 558. 6. (1934) 50 C.L.R., at pp. 561-562.

[45]

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. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States. That statement of the general policy of the sub-section was central to his Honour's reasoning which was subsequently endorsed by the judgments of the justices who constituted the majority in Peel : see, in particular, Gibbs J. [30] . It lends strong support for the view that the power of the Attorney-General or Director to appeal against sentence derived from the operation of s. 68(2) upon s. 567A should remain subject to safeguards analogous to those which s. 567A expressly imposes upon the State Director of Public Prosecutions in the case of an appeal against the sentence passed upon conviction of a person charged with an offence against State law. Secondly, the judgment of Dixon J. in Williams [No. 2] also lends strong support for the view that the general words of s. 31(1) should not be construed as demolishing or weakening the safeguards on the power to appeal against sentence derived from the operation of s. 68(2). Having noted that an appeal against sentence constituted "a marked departure from the principles theretofore governing the exercise of penal jurisdiction" [31] , his Honour referred, with apparent approval, to the statement of Lord Birkenhead in Secretary of State for Home Affairs v. O'Brien [32] to the effect that the general words of a statutory provision conferring rights of appeal should not be held to encompass a right of appeal from an order for discharge from custody made upon the return of a writ of habeas corpus, although expressed in terms sufficient to do so, because it could not be supposed "that a section couched in terms so general availed to deprive the subject of an ancient and universally recognized constitutional right". Dixon J. concluded, however, that "such a process of interpretation" should not be applied to s. 68(2) of the Judiciary Act by reason of the special nature of that enactment as one "dealing with the existing and known provisions of a particular department of the statutory law of the States" which was to be distinguished as being "of a different order from general words which are not referential, but deal independently with the subject matter". The general words of s. 31(1) are not referential. They deal independently with the general subject-matter of the Commonwealth Director's power to delegate. That being so, the clear implication of Dixon J.'s comments is that the "process of interpretation" to which his Honour referred would be applicable to them. 1. (1934) 50 C.L.R., at p. 560. 2. (1971) 125 C.L.R., at p. 468. 3. (1934) 50 C.L.R., at p. 561. 4. [1923] A.C. 603, at p. 610.

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Before

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Judgment (51 paragraphs)

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