[2016] NSWCCA 37
CI&D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1
Craig v South Australia (1995) 184 CLR 163
[1995] HCA 58
Davern v Messel (1984) 155 CLR 21
Source
Original judgment source is linked above.
Catchwords
Sch 2, cl 1
Cases Cited: Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257[2008] NSWCA 292
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338[2016] NSWCCA 37
CI&D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1
Craig v South Australia (1995) 184 CLR 163[1995] HCA 58
Davern v Messel (1984) 155 CLR 21[1984] HCA 34
Director of Public Prosecutions v Ozakca (2006) 68 NSWLR 325[2006] NSWSC 1425
Ex parte SchofieldRe AustinEx parte GreenRe Austin (1953] 53 SR(NSW) 163
Hanna v O'Shane [2003] NSWSC 1055144 A Crim R 21
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
Pearce v The Queen (1998) 194 CLR 610ex parte Harrington [1983] QB 1076
Reg v Duncan (1881) 7 QBD 198
Reg v Middlesex Quarter Sessions (Chairman)Ex parte Director of Public Prosecutions [1952] 2 Q.B. 758
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Judgment (14 paragraphs)
[1]
Background to present application
In mid-July 2015 the respondent undertook work at Bankstown-Lidcombe Hospital installing oxygen and nitrous oxide piping to operating theatre 8. As a result of incorrect connection and labelling of the gas lines, the outlet labelled "oxygen" in fact delivered nitrous oxide. The error was not discovered until 21 July 2016. Over that year, 658 caesarean deliveries were undertaken at the hospital; 418 were emergency deliveries. Each new-born was potentially at risk if operating theatre 8 had been used. Of those deliveries, 36 were in fact undertaken in operating theatre 8. Two babies, delivered on 20 June 2016 and 13 July 2016 respectively, required oxygen. As a result of the crossed lines, each was inadvertently administered nitrous oxide. One survived, with serious brain damage, but the other died. The cross-connection error was identified on 21 July 2016, when the gas outlets were tested.
A summons filed in the District Court on 12 July 2018 alleged that the respondent had breached the obligation imposed by s 19(2) of the Work Health and Safety Act to ensure, so far as reasonably practicable, that the health and safety of persons was not put at risk from work carried out in the course of its business. The risk identified was the risk to other persons, and specifically babies, suffering serious injury or death as a result of the administration of nitrous oxide instead of oxygen in the course of undergoing a resuscitation procedure. Eight particulars of breach were identified. Of central importance was particular (b) requiring the adoption of a "safe work procedure" which required:
"i. connection of the port to the existing pipe work to be undertaken in only one gas system at a time to minimise the risk of cross-connection; and/or
ii. testing by a designated person to determine that the concentration of oxygen was correct and that there was no contamination; and/or
iii. the testing referred to in subparagraph ii above to be conducted:
1. in the presence of a member of [the Hospital] experienced in the administration of [medical] gasses to patients; or
2. by the anaesthetist in charge [or] a delegated anaesthetist".
The prosecutor alleged that cross-connection occurred because (i) the employees responsible for undertaking the work in fact worked on both lines at once, (ii) the completed work was not in fact tested, and (iii) test certificates were signed by one of the respondent's staff, and counter-signed by an employee of NSW Health as having witnessed the testing, although no testing had in fact taken place.
The dispositive reasoning of the trial judge was as follows:
"[211] The prosecution submits that the failures of the defendant are two steps. The first being with regard to the cutting-in process, the second being the testing and commissioning prior to handover.
[212] The defendant submits that is not correct, that it is simply the failure of the testing procedure that is a one step program, because that procedure is fool proof.
[213] The defendant's case is that it matters not how the cutting-in process was done, because if the testing procedures as detailed in the testing forms had been followed correctly, the mistake would have been evident and risk could have been eliminated.
[214] If the testing had been done by Mr Turner, and such testing had been witnessed by Mr Brightwell, the error would have been revealed.
[215] I accept, however, whilst the testing process was in effect fool proof, it cannot be so when persons involved in the process engage in falsehoods.
[216] Whether or not Mr Turner did the testing at all or inappropriately, he lied to Mr Brightwell, to the defendant and to BLH that the testing had been done at all or appropriately done. The Testing Forms were in triplicate - one for the installer (here Mr Turner), one for the company contracted to do the works (here the defendant) and one for the client (here BLH).
[217] In signing the forms in the way he did, and then returning those forms to the defendant and BLH, he has represented to them that the work was done in accordance with the Forms, which it was not. He has therefore lied to the defendant and BLH.
[218] Similarly, Mr Brightwell in signing the forms as having witnessed the testing, which he admits that he did not, he has lied to the defendant and his employer, BLH.
[219] The handover process that had to occur before the theatres could be used, was corrupted by these lies. The introduced panels in the theatres could not be utilised until the appropriate commissioning testing had been done. It is only then that the works can be handed back to BLH, and the use of the theatres recommenced.
[220] The babies were put at risk at the point in time the commissioning and handover was completed. They were put at risk because of the lies by Mr Turner and Mr Brightwell.
[221] I do not accept that it was foreseeable for the defendant to anticipate that two workers performing duties with which they were both familiar, which they had both done before, would lie about what they in fact had done.
[222] As such, the defendant cannot be held responsible for the behaviour of a disobedient worker, Mr Turner, for his conduct which I view as lying: ….
[223] Mr Turner's conduct in signing the forms as the testing having been done, or done appropriately, was not mere inadvertence or a mistake.
[224] The application of common sense to the facts … suggests that the conduct of Mr Turner and Mr Brightwell in lying cannot be attributable to the defendant. The complaints made by the prosecution that there was no appropriate SWMS [Safe Work Method Statement] or training of the workers, seem to pale in significance in circumstances where Mr Turner and Mr Brightwell lied. One could not be confident that even if they were both given additional training and more detailed SWMS, that they would have followed the procedures contained therein."
The applicant challenged the reasoning of the trial judge that because the testing process was supposedly "fool proof", the earlier failures to comply with safe work practices in carrying out the installation work were immaterial. Earlier in her reasons, the judge had correctly identified the question of causation as asking "whether the act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury", referring to the judgment of the Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash. [7] The applicant submitted that there were self-evidently two separate and independent failures to comply with safe work practices. Rejection of the materiality of the prosecution case with respect to the cutting-in process was said to be an error. Such an error in the application of the law might have been corrected on an appeal by way of rehearing. The applicant submitted it was more than that, being sufficiently egregious to warrant characterisation as a jurisdictional error. Resisting that characterisation, the respondent submitted that the judge was under no misunderstanding as to the nature of the task to be undertaken and had neither exceeded, nor failed to engage with, her proper function.
Secondly, the applicant contended that dismissing the egregious behaviour of the employee (Mr Turner) as something for which the company could not be responsible was also an egregious error, and thus a jurisdictional error. It submitted that the inference that the employee had not been properly trained as to the nature of, and the importance of compliance with, safe work practices in respect of laying and connecting the pipes and testing the work done, was readily available in the circumstances. Training and supervision were functions of the employer. The employee was not on a frolic of his own, but carrying out the work required, albeit in a negligent and slipshod manner. Again, it was submitted, the error in failing to find that the respondent was responsible for breaches of duty which led to the employee's non-compliance with directions was equally egregious and hence constituted jurisdictional error. It may be accepted that such an error was one which could have been corrected on an appeal by way of rehearing, but, the respondent contended, it was not an error of the kind which demonstrated any departure by the judge from the exercise of the judicial function with respect to the elements of the prosecution case, nor in failing to address submissions made on the evidence.
What has been outlined above is sufficient to identify the high points of the applicant's case. It is not necessary or appropriate to go further unless it is established that this Court can exercise its supervisory jurisdiction with respect to the ultimate outcome, namely the acquittal of the respondent.
[2]
(a) identifying the issue
The fundamental general law value is that a person should not be placed in jeopardy of conviction more than once for a particular offence arising out of the one course of conduct.
Double jeopardy can occur serially or concurrently. A clear statement of the principle is found in Pearce v The Queen [8] which was concerned with concurrent overlapping charges. While the Court noted the important proposition that prosecutors "should not multiply charges unnecessarily", [9] and that multiple charges could involve an abuse of process, it concluded that where offences contained different elements and two charges are necessary to reflect the whole of the accused's criminality, [10] the principle against double jeopardy is not engaged.
Further, the joint reasons of McHugh, Hayne and Callinan JJ identified the rationale of the principle, in terms directly applicable to the serial prosecution of the same charge:
"[10] If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States: [11]
'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'"
Before exploring the operation of the principle in the application of the Court's supervisory jurisdiction, it is convenient to note the history of statutory appeals in criminal cases. That is because a significant body of case law has considered whether generic provisions conferring rights of appeal extend to appeals from acquittals. Those provisions have been universally construed by application of the clear statement principle, or principle of legality. Allowing an appeal against an acquittal would create double jeopardy because the accused would be put on trial for a second time with respect to the one offence. At least that will be so where there has been a contested trial: the position may be different where a charge is dismissed without a trial. If, as is inherent in the applicant's case, there has always been relief available in the supervisory jurisdiction to quash or set aside an acquittal, any principle precluding double jeopardy must be seen as subject to an important qualification. No case construing appeal provisions so as not to apply to acquittals has identified any such general qualification.
[3]
(b) appeals from acquittals
As noted above, there is an appeal provision relevant to the present case, namely s 5AE of the Criminal Appeal Act:
5AE Point of law stated during summary proceedings
(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.
(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.
The history and operation of this provision has recently been comprehensively addressed by Bathurst CJ and Bell P in Orr v Cobar Management Pty Ltd. [12] Importantly for present purposes, the joint reasons noted the issue raised in the following terms:
"[75] Cobar contended that, as a matter of the proper construction of s 5AE of the Criminal Appeal Act, the submission of the questions to this Court was 'too late'. Section 5AE only permits questions to be submitted '[a]t any time before the completion of proceedings', and it was submitted that the proceedings had, at least in substance, been completed following the handing down of the primary judgment, in which the primary judge expressed his unqualified conclusion that the prosecutor had failed to establish two elements of the offence (the construction argument). Part of this argument was to the effect that form should not be elevated over substance.
[76] Cobar invoked various canons of statutory interpretation which it submitted aided its interpretation …. These were that s 5AE should be interpreted in such a way so as not to expose Cobar to double jeopardy (the double jeopardy argument), and should not be interpreted in a way which would, in substance, afford the prosecutor a right of appeal on questions of law, in circumstances where the legislature made no provision for an appeal from an acquittal. This statutory omission was said to be all the more significant in circumstances where an express 'all grounds' right of appeal from an acquittal had existed under the Industrial Relations Act, when the summary criminal jurisdiction in respect of work, health and safety offences lay with the IRC (the de facto appeal argument).
[77] The double jeopardy argument was the platform from which the Court was taken, with a degree of rhetorical flourish, to statements of high authority and powerful forensic appeal. Thus it was submitted, for example, that the fact that the Crown does not, at common law, have a right of appeal from an acquittal is a fundamental principle which may only be modified by clear statutory language …. [13]
[78] It was also submitted that exposure to double jeopardy involved a violation of art 14 para 7 of the International Covenant on Civil and Political Rights, which provides that:
'No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.'
…
[79] The force of the so-called principle of legality or 'clear statement' approach in the context of the double jeopardy argument and the de facto appeal argument really depended on the correctness of the construction argument because if, as the prosecutor contended, the expression 'the completion of proceedings' in s 5AE meant their disposition by formal court order (such as an order finding or declaring the defendant to be not guilty or dismissing the summons by reference to which the prosecution was brought), there would be no double jeopardy or de facto appeal since, ex hypothesi, there would not have been any acquittal at the time of submission of questions to the Court of Criminal Appeal, no final dispositive orders having been made, and thereby nothing to appeal from."
Ultimately, the question of the effect of an acquittal did not need to be determined because "the publication of the primary judge's reasons for judgment in the present case did not preclude the subsequent submission of questions of law to this Court, as no formal orders had been made." [14] However, the case provides an example of how well-established principles of construction may invoke the double jeopardy principle.
[4]
(c) appeal from acquittal - first level appeal
The cases further reveal a lively dispute as to whether a decision by an intermediate court of appeal overturning a conviction and substituting an acquittal can itself be overturned by a further appeal which would then, if upheld, deprive the person charged of the benefit of the acquittal in the intermediate court.
In 1890, prior to the introduction of general rights of appeal in criminal cases, the Highway Act, 1835 (UK) [21] imposed a penalty for wilfully obstructing a highway. Section 105 conferred a right of appeal to quarter sessions from "any order, conviction, judgment, or determination" under the Act. An attempt by an unsuccessful informant to appeal failed; an application for mandamus to compel the justices to hear an appeal also failed: The Queen v The Keepers of the Peace and Justices of the County of London ("London Justices"). [22] Lord Coleridge CJ observed: [23]
"The question arises on the Act of 1835, and a claim to have an appeal after acquittal is now for the first time made, although there must have been thousands of instances of acquittals which have dissatisfied the prosecutors. … [I]f it were enough to find a word or two in a section of this kind which would carry an appeal, the argument for the appellant would be entitled to succeed, for there are words capable of the meaning contended for. But that is not quite the way in which the section should be regarded when we are asked to hold that there is an appeal after acquittal, which is, primâ facie, not given by law. A person is prosecuted for some breach of the law which is to be proved in a particular way. The general principle of law is that, if acquitted, he is not to be a second time vexed."
Wills J stated: [24]
"Long before the Highway Act of 1835, there were similar statutory provisions, and yet no instance can be found in the books of an appeal successfully prosecuted, or even attempted to be brought, after an acquittal. … The argument arising from the total absence of precedent is almost unanswerable."
The Full Court of the Federal Court held in Thompson v Mastertouch TV Service Pty Ltd [No 3], [25] that the general provision in s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), conferring jurisdiction to hear and determine "appeals from judgments of the court constituted by a single judge exercising the original jurisdiction of the court", did not extend to jurisdiction to hear an appeal from an acquittal in criminal proceedings.
[5]
(d) appeal from acquittal on appeal
The cases dealing with an acquittal by an intermediate appeal court setting aside a conviction at trial show a willingness to construe the statute as permitting the reinstatement of the initial conviction.
Harry Messel was convicted of offences under the Fisheries Act 1965 (NT). The Supreme Court of the Northern Territory allowed the appeal and quashed the convictions. The prosecutor then brought a further appeal to the Full Court of the Federal Court which rejected the further appeal on the basis that no appeal lay from the judgment of acquittal in the Supreme Court. The prosecutor's right to seek special leave to appeal to the High Court was itself controversial, but was held to fall within the constitutional jurisdiction of the High Court under s 73 of the Commonwealth Constitution. In Davern v Messel, [26] the High Court (Murphy and Deane JJ dissenting) set aside the decision of the Full Court of the Federal Court, holding that the latter had power to hear and determine the appeal by the prosecutor from the quashing of the conviction.
In dissent, Deane J (the author of the principal judgment in Mastertouch) explained: [27]
"The basis of that decision was that there is a general common law rule that a person is entitled 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 and that that rule is not, upon proper principles of interpretation, to be swept aside by the general terms of a statute which exhibits no underlying policy in that regard and which contains nothing which clearly and unmistakably indicates that any such effect was intended."
Murphy J (also in dissent) stated: [28]
"An artificial distinction should not be drawn between acquittals at first instance and at other stages. The result of a subsequent prosecution appeal is the same. It puts the person in jeopardy after an acquittal.
The fact that the acquittal on appeal may have occurred because of what is considered to be a legal error by the acquitting court, is not material. The same could occur whether it is at first instance or on appeal. The purpose of the rule is to protect persons who have been acquitted even by legal error. The person is not to be put in jeopardy after an acquittal, mistaken or not."
The adoption of the clear statement rule in construing appeal provisions is relevant, not because the case involves the construction of an appeal provision, but because the cases reveal the strength of the presumption that a statute would not allow a challenge to an acquittal, absent a clear statement of that intention, because it would be liable to place the defendant in a position of double jeopardy.
[6]
(e) quashing acquittals in the supervisory jurisdiction
In 1881, nine years before London Justices, an order nisi for certiorari was discharged by a Divisional Court presided over by Lord Coleridge CJ (Field and Bowen JJ agreeing) in Reg v Duncan. [29] The grounds relied upon were (i) the improper reception of evidence, (ii) misdirection, and (iii) that the verdict was against the weight of evidence. The Chief Justice stated: [30]
"It is plain that we cannot interfere. What may have been the constitutional or legal principles on which the practice was founded it is much too late to inquire. The practice of the Courts has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted."
After referring to contrary authority which had been overruled, he continued: [31]
"The case, therefore, stands absolutely bare of authority. We are asked for the first time to grant a new trial after an acquittal on an indictment placing the defendant in peril of imprisonment. If the legislature thinks fit to declare that new trials shall be granted after acquittals for felonies, misdemeanours, or both, it may of course do so. But we sitting here cannot but follow a clearly ascertained line of practice."
Although it is not fashionable to distinguish forms of "jurisdictional error", that phrase encompasses (i) an incorrectly constituted tribunal, (ii) the irregular conduct of a hearing, and (iii) an irregular outcome. The grounds relied on in Reg v Duncan fell within (ii) and (iii): there remained a question (not raised by the present case) as to whether certiorari would lie in respect of (i).
In 1913, in R v Simpson, [32] two coalminers were charged with failing to observe directions, in contravention of s 74 of the Coal Mines Act 1911 (UK). Proceedings for an offence under the Act could be taken in a court of summary jurisdiction, but not before a justice who was employed in a mine. After the defendants were acquitted, the prosecutor discovered that one of the justices was employed in a colliery. The justice being disqualified, the decision was sought to be quashed on the basis that the Court of Petty Sessions as constituted had no power to hear and determine the information. There were differences in the reasoning of the three members of the Divisional Court, Ridley J, Scrutton J and Bailhache J. Scrutton J stated that "there never has been a case in which an acquittal by a court of summary jurisdiction has been quashed by certiorari," but was content to leave the question to be determined if the defendants were charged again and pleaded autrefois acquit. However, Bailhache J stated: [33]
"In my opinion this Court ought to be very slow to quash an acquittal, for it is a time-honoured maxim of our law that a man, whether he has been acquitted or convicted, should not be tried twice for the same offence. I do not think we ought to interfere in a case like this, where the adjudicating tribunal was apparently competent but in fact one member of it was disqualified, but only where the tribunal was of obviously incompetent jurisdiction or was exercising a jurisdiction manifestly in excess of its powers. I desire to adopt the following passage from the judgment of Lord O'Brien C.J. in Reg. v. Justices of Antrim [34] , which was quoted by him in Rex v. Justices of Galway: [35] 'If the case were one where the tribunal was ex facie wholly unauthorized, and the accusation and the accused plainly coram non judice, the matter would be entirely different. In such a case the pretended adjudication of the usurping tribunal would appear to be a mere nullity, not merely voidable, but void.' If a case of that sort were to come before this Court, it may be that we ought to interfere and grant a certiorari to quash acquittal, although there is no authority for doing so, but, except in the very clear class of case of want of jurisdiction suggested by Lord O'Brien CJ, I am of opinion that certiorari ought not to be granted to quash an acquittal."
[7]
Applicant's supplementary written submissions
The applicants sought to resist this conclusion on three grounds. They may be characterised as (i) voidness, (ii) constructive failure to exercise jurisdiction, and (iii) judicial authority.
[8]
(a) voidness
Characterising a decision as a "nullity" or as "null and void" is to identify an imprecise conclusion.
As noted by Aronson, Groves and Weeks, "nullity" is a conclusory term with a meaning that depends on its context. [51] The relevant context in the present case is an application to review an acquittal. If the judgment were truly a nullity, SafeWork could simply seek to have the charge relisted for hearing in the District Court; no doubt that would provoke a plea of autrefois acquit on the part of the respondent, the substance of which would then be debated before a District Court judge. It is unsurprising that the prosecutor has not taken that course. The mere fact that there would need to be a court hearing to determine whether a plea of autrefois acquit should be accepted demonstrates that the judgment of the District Court was not without practical and legal consequences.
The present question is whether one of those consequences was that the respondent has been at risk of conviction once already. Clearly it has been. The charge before the court was not itself insufficient to invoke the jurisdiction of the court and to provide a basis for a trial. Throughout the trial, the respondent was at risk of being convicted. In that sense, it was inaccurate to describe the trial as a nullity or as null and void.
[9]
(b) constructive failure to exercise jurisdiction
The phrase "constructive failure to exercise jurisdiction" is, like nullity and jurisdictional error, a conclusory label. It encompasses, potentially, a range of errors. Use of the term "constructive" concedes that there has been no express refusal to exercise a jurisdiction which the tribunal in fact possessed, nor the usurpation of a jurisdiction it did not possess. Prosecutions for unsafe work practices used to take place in the Industrial Commission; if the present charges had been brought in the Commission, and the Commission had purported to determine them, there would have been a usurpation of jurisdiction. There is, however, no doubt that the District Court had jurisdiction to hear the charges, and did so. In its final judgment, the Court ruled on various matters in ways with which the prosecutor takes issue, as noted above. Suffice it to say that none of them involves an erroneous refusal by the District Court to exercise the jurisdiction to deal with the charges, nor were the proceedings brought by the prosecutor in the wrong tribunal. Further, nothing in the nature of fraud on the part of the respondent was alleged. For the reasons set out above, even errors which might in some circumstances be described as "jurisdictional" will not suffice to allow an appeal from, or review of, an acquittal of criminal charges. Adopting the label of constructive failure to exercise jurisdiction takes the matter no further.
It should not be assumed that all forms of jurisdictional error have the same consequences in all circumstances. At its core, the applicant's case was that any form of jurisdictional error was sufficient to render the trial a nullity. Authority for that proposition was sought in the description of "jurisdictional error" identified by the joint reasons of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection, [52] in the following terms:
"[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. …"
[10]
(c) judicial authority
As noted above, an acquittal was set aside in 1897 in Tchorzewski on the ground that a member of the tribunal had been disqualified. The status of that decision following Schofield need not be determined, as this case does not involve an incompetent tribunal.
The applicant relied upon two cases in which judgments of acquittal had been set aside by single judges in this Court. The first was Hanna v O'Shane. [56] Mr Hanna had brought 62 criminal charges for various offences against five defendants. Upon his failure to appear when the matters were called in the Local Court, the magistrate dismissed all the charges. Mr Hanna sought orders in the nature of certiorari to quash those decisions on the grounds of breach of procedural fairness. Shaw J accepted that breach was established, but expressed "some concern" that granting the remedy would expose the defendants to the prospect of double jeopardy. [57] The judge referred to Davern v Messel, concluding that Mason and Brennan JJ had held that "double jeopardy extended to prosecution appeals against acquittal or discharge". The judge continued: [58]
"This proposition weighs against the grant of relief sought."
The decisions were nevertheless quashed and the matters remitted to the Local Court.
The somewhat tentative expression of opinion as to the effect of the principle against double jeopardy in the circumstances of an acquittal may not have adequately reflected the position established on the authorities. However, because there had been no hearing on the merits, the case is readily distinguished from the present case and provides no authority in relation to the present circumstance.
The second case relied upon by the applicant was the decision of Rothman J in Director of Public Prosecutions v Ozakca. [59] The circumstances of Ozakca were again far removed from those in the present case, but similar to Hanna. Summary criminal proceedings were listed before a magistrate for hearing. The prosecutor sought an adjournment, based on the absence of the principal prosecution witness, which was not opposed. The adjournment was nevertheless refused and, although there was a hearing, it was brief, given the absence of the victim and the charges were dismissed on the basis that there was no prima facie case. [60] The Director sought judicial review on the basis of procedural unfairness in refusing the adjournment.
[11]
Conclusions - scope of supervisory jurisdiction
The justification for the principle depends upon essentially practical considerations affecting the circumstances of the person charged, namely, continuing or renewed embarrassment, expense and ordeal, and living in a continuing state of anxiety and insecurity. At least in relation to an individual, those factors do not depend upon a legal analysis of whether the defendant was truly "at risk" because of some legal failing in the trial, where a trial has in fact taken place. Particularly is that so where the error is not identified until judgment is delivered and the reasons of the judge are examined, as in the present case. In those circumstances, it should be concluded that judicial review is not available to quash the judgment and orders of the District Court acquitting the defendant of the charge.
It may be noted that the defendant is a corporation and not an individual; accordingly, the justification underlying the principle of double jeopardy does not have equal force. However, it was not contended that the principle should have differential application with respect to individuals and corporations. That possibility does not require further consideration.
[12]
Orders
On the basis that the Court has no power to review an order acquitting the respondent, made after a trial and judgment, the Court should make the following orders:
1. Dismiss the summons filed on 25 June 2020.
2. Order the applicant to pay the first respondent's costs.
MACFARLAN JA: I agree with Basten JA.
LEEMING JA: I agree with Basten JA, for the reasons he gives, that this Court's supervisory jurisdiction does not extend to the review of an acquittal, following a summary trial by a competent tribunal in the absence of fraud, and for that reason the summons must be dismissed. I also agree that it is unnecessary and inappropriate to go further and assess the case sought to be advanced in this Court by the applicant. But I would add that, in my opinion, there were powerful discretionary reasons telling against the grant of relief to the applicant.
A large component of the applicant's complaint in this Court was that the primary judge had failed to address a substantial aspect of its case. Yet the primary judge gave ample opportunity - more than four weeks after reasons were given on 30 April 2020 - for a case to be stated pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). During that time (no orders having been made) it would also have been open to the applicant to apply for a determination of part of the case that had not been determined. Neither of those avenues was availed of. Instead, its summons having eventually been dismissed on 1 June 2020, the applicant sought to invoke this Court's supervisory jurisdiction on 25 June 2020.
Where there is, as here, a remedy by way of appeal which is available and effective, that remedy ought be pursued first and the failure to do so will generally provide a reason for the refusal of any relief by way of judicial review: Quach v Health Care Complaints Commission [2015] NSWCA 187 at [21]. That applies a fortiori where there is an appeal and an ability to apply to the District Court. This is a case where the applicant must be taken to have made a deliberate decision not to exercise such rights as it had to apply to the District Court, or to the Court of Criminal Appeal. In those circumstances, there would be, to say the least, a powerful case for withholding relief as a matter of discretion. As was raised during the hearing:
"BASTEN JA: You come to this Court, Mr Agius, and you say that the judge, clearly on the reasons created an error which deprived her of the jurisdiction to determine the case at all. You had a month in which to point that out if you had thought it appropriate and it had been obvious to you at the time and no doubt the judge would have, if she accepted the submission, may have taken steps to correct her error. She clearly wanted to conclude her function as a judge in accordance with her jurisdiction. Why should you be allowed in a discretionary sense to come to this Court now and make that sort of point?"
[13]
Endnotes
Work Safety Act, Sch 2, cl 1(1) and (2).
Work Safety Act, s 230(1)(a).
Work Safety Act, s 30.
Work Safety Act, s 32.
Work Safety Act, s 229B(1) and (3).
SafeWork NSW v BOC Limited [2020] NSWDC 156.
(2016) 93 NSWLR 338; [2016] NSWCCA 37 at [127] (Bathurst CJ, Hidden and Davies JJ).
(1998) 194 CLR 610; [1998] HCA 57.
Pearce at [30].
Pearce at [37].
(1957) 355 US 184 at 187-188.
[2020] NSWCCA 220.
R v Cheng (1999) 48 NSWLR 616 at 619; [1999] NSWCCA 373 at [20]; Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309 at 329; [2004] HCA 40 at [21]; see also Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18; [1990] HCA 24; Coco v the Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15.
Orr at [101].
Inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) (Double Jeopardy Act).
Appeal and Review Act, s 107(2).
Appeal and Review Act, s 107(1)(b).
Repealed on 15 December 2006: Double Jeopardy Act, Sch 2.2[1].
It was enacted in November 1996 by the WorkCover Legislation Amendment Act 1996 (NSW), reversing CI&D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1: Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257; [2008] NSWCA 292 at [55]-[56] (Spigelman CJ).
Second reading speech, Work Health and Safety Legislation Amendment Bill 2011, Parliamentary Debates, NSW Legislative Council, (Hansard), p 2.
(5 & 6 Will. 4, c. 50), s 72.
(1890) 25 QBD 357.
London Justices at p 360.
London Justices at p 361-362.
(1978) 38 FLR 397.
Davern v Messel (1984) 155 CLR 21; [1984] HCA 34.
Davern v Messel at 66.
Davern v Messel at 64.
(1881) 7 QBD 198.
Duncan at 199.
Duncan at 200.
[14]
Amendments
30 March 2021 - [9] - "which" deleted after "law" in second last sentence.
[10] - "of" inserted after "nature" in second sentence.
[34] - "has" deleted after "there" and inserted after "never" in second last sentence before quote.
Fn 26 - "at 66" deleted after "155 CLR 21".
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 March 2021
Parties
Applicant/Plaintiff:
SafeWork NSW
Respondent/Defendant:
BOC Limited
Legislation Cited (9)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006(NSW)
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
The Queen v The Keepers of the Peace and Justices of the County of London ("London Justices") (1890) 25 QBD 357
Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397
Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at [10.30]
Second reading speech, Work Health and Safety Legislation Amendment Bill 2011, Parliamentary Debates, NSW Legislative Council
Category: Principal judgment
Parties: SafeWork NSW (Applicant)
BOC Limited (First Respondent)
District Court of New South Wales (Second Respondent)
Representation: Counsel:
J Agius SC / M Moir (Applicant)
B D Hodgkinson SC / Y Shariff (First Respondent)
Solicitors:
Department of Customer Service (Applicant)
Ashurst (First Respondent)
Crown Solicitor's Office (Second Respondent
File Number(s): 2020/188413
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Citation: [2020] NSWDC 156
Date of Decision: 01 June 2020
Before: Strathdee DCJ
File Number(s): 2018/218042
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 1 June 2020, the respondent, BOC Limited, was acquitted by the District Court of an offence under s 19(2) of the Work Health and Safety Act 2011 (NSW) ("Work Safety Act"). The prosecutor, SafeWork NSW, sought an order quashing the acquittal.
The prosecution had alleged that in mid-July 2015 the respondent had installed gas lines to an operating theatre in Bankstown Lidcombe Hospital in breach of its "health and safety duty" under s 19(2) Work Safety Act. As a result of errors in the connection and labelling of the gas lines, the outlet labelled "oxygen" in fact delivered nitrous oxide, placing at risk any patient who needed the administration of oxygen. This resulted in the administration of nitrous oxide instead of oxygen to two newborn babies: one died and the other suffered serious brain damage.
On 30 April 2020, after a 10-day hearing in the District Court, the trial judge delivered reasons, but no orders were then made. The judge offered the applicant an opportunity to request that any question of law arising at or in reference to the proceedings be submitted to the Court of Criminal Appeal for determination, pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). There was no other form of appeal available to the prosecutor.
The prosecutor declined to make any request and final orders were made on 1 June 2020, acquitting the respondent. On 25 June 2020, the applicant filed a summons in the Court of Appeal, which sought to quash the final orders of the District Court.
The first question was whether the supervisory jurisdiction extended to review of an acquittal resulting from a summary trial in the District Court.
The Court (Basten JA, Macfarlan JA and Leeming JA agreeing) dismissed the application and held:
As to jurisdiction:
(1) The supervisory jurisdiction of the Court does not extend to review of an acquittal following a summary trial by a competent tribunal, absent fraud. That is because such a possibility runs counter to the general principle of law that a person who is prosecuted for a breach of the law, if acquitted, "is not to be a second time vexed": [43].
Reg v Duncan (1881) 7 QBD 198; R v Simpson [1914] 1 KB 66; Ex parte Schofield; Re Austin; Ex parte Green; Re Austin (1953) 53 SR (NSW) 163; R v Tchorzewski (1897) 8 QLJ 79; Reg v Dorking Justices; ex parte Harrington [1983] QB 1076; Davern v Messel (1984) 155 CLR 21; [1984] HCA 34; R v Bournemouth Crown Court, ex parte Weight [1984] 1 WLR 980; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, discussed.
(2) The principle against double jeopardy is deeply ingrained and relevant to the construction of statutory appeal rights and to understanding the limits of the supervisory jurisdiction. The history of the principle is relevant to understanding its operation, including its application in statutory appeals in criminal cases from acquittals at first instance and on appeal: [15]-[31].
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Davern v Messel (1984) 155 CLR 21; The Queen v The Keepers of the Peace and Justices of the County of London ("London Justices") (1890) 25 QBD 357; Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; Orr v Cobar Management Pty Ltd [2020] NSWCCA 220, discussed.
(3) The rights of appeal available to a prosecutor where a person has been acquitted of an offence are limited to those now identified in Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW): [18]-[22]. Otherwise, there is no statutory right of appeal against an acquittal: [23].
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220, discussed.
(4) There may be circumstances in which the supervisory jurisdiction would extend to an application for judicial review following an acquittal, in certain categories of jurisdictional error; however, none was engaged: [61]-[62].
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Craig v South Australia (1995) 184 CLR 163 at 176-177; [1995] HCA 58, cited.
Observations as to the labels "void" and "constructive failure to exercise jurisdiction":
(5) Care must be taken when using the labels "void" and "constructive failure to exercise jurisdiction": [45]-[47]. Statements from authorities dealing with administrative decisions do not apply without qualification to criminal trials in a court of record: [50]-[51].
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Craig v South Australia (1995) 184 CLR 163, discussed.
By Leeming JA at [65]-[69], as to discretion:
(6) Aside from the question of jurisdiction, there were powerful discretionary reasons telling against the grant of relief to the applicant. The applicant did not exercise its statutory rights to seek a stated case under s 5AE of the Criminal Appeal Act 1912 (NSW), or apply for a determination of any part of the case it believed had not been addressed, despite being provided with a four-week opportunity before making the making of final orders in which to do so.
Quach v Health Care Complaints Commission [2015] NSWCA 187, applied.
Otherwise, the rights of appeal available to a prosecutor where a person has been acquitted of an offence, are limited. Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"), inserted in 2006, [15] makes provision for the ordering of retrials where a person has been acquitted of "a life sentence offence" (s 100) or a "15 years or more sentence offence" (s 101). In such cases, the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an acquittal "on any ground that involves a question of law alone", [16] and that Court may order a new trial. However, relevantly for present purposes, the section applies only to acquittals by the District Court in criminal proceedings for an indictable offence tried by a judge without a jury. [17] The present matter did not involve an indictable offence.
Secondly, Pt 8, Div 3 deals with an appeal from an acquittal either in respect of "any proceedings tried on indictment" or "any proceedings tried by the Supreme Court or the Land and Environment Court in summary jurisdiction". Neither of these categories apply in the present case, being the exercise by the District Court of its summary criminal jurisdiction. Accordingly, as is conceded by the applicant, there is no right of appeal from the acquittal.
Part 8 had a predecessor in s 5A(2) of the Criminal Appeal Act: [18]
5A Point of law stated by judge
…
(2)
(a) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) either before or after the commencement of the Criminal Appeal (Amendment) Act 1977 the Attorney-General or Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial.
(b) The Attorney-General or Director of Public Prosecutions shall submit with the question to be determined a statement of the circumstances out of which the question arose and thereafter shall furnish such further statement as the Court of Criminal Appeal may require.
(c) The Court of Criminal Appeal shall hear and determine any question submitted to it under this subsection.
(d) The determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial.
(e) Any person charged at the trial or affected by the decision shall be entitled to be heard before the Court of Criminal Appeal upon the determination of the question submitted, and if it appears that such person does not propose to be represented upon such determination, the Attorney-General or Director of Public Prosecutions shall instruct an Australian legal practitioner to argue such question before the Court of Criminal Appeal on behalf of such person.
(f) The reasonable costs of legal representation of any person heard before the Court of Criminal Appeal as provided in this subsection shall be paid by the Crown.
(g) The hearing and determination of any question under this subsection shall be held in camera:
Provided that nothing in this paragraph shall preclude an Australian legal practitioner from being present at the hearing and determination for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.
(h) No report of any submission made pursuant to paragraph (a) shall be published. No report of proceedings under this subsection shall be published which discloses the name or identity of the person charged at the trial or affected by the decision given at the trial. Any publication in contravention of the foregoing provision shall be punishable as contempt of the Supreme Court.
The joint reasons in Orr observed:
"[70] In passages that were referred to with evident approval by Spigelman CJ in Attorney-General v X at [41] and [42], both Lee and Hunt JJ gave to the expression 'any question of law' in s 5A(2) of the Criminal Appeal Act a narrow meaning …. Thus, in R v J at 616, Lee J said:
'The purpose of s 5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes.'"
For completeness it may be noted that prior to 1 January 2012, s 197A of the Industrial Relations Act 1996 (NSW) provided a right of appeal to the Full Bench of the Industrial Commission against an acquittal in proceedings heard by the Commission or the Local Court. [19] Its repeal in 2011 was explained by the Minister for Finance and Services in the Legislative Council: [20]
"The right of the prosecution to appeal against an acquittal under section 197A of the Industrial Relations Act 1996 in an Occupational Health and Safety Act matter has long been the subject of criticism and is unusual in criminal law. The bill therefore repeals section 197A of the Industrial Relations Act, bringing appeal rights for Work Health and Safety Act matters into line with the appeal rights applicable to the general criminal law."
Since the transfer of the jurisdiction of the Commission to the District Court, there is no right of appeal from an acquittal except, as noted above, in relation to indictable offences. The carefully crafted effect of these statutory rights of appeal casts doubt on the possibility that there is, lurking in the unexplored interstices of this Court's supervisory jurisdiction, some general right to review verdicts or judgments of acquittal.
The reasoning of Bailhache J was applied by the Full Court of this Court in 1953 in Ex parte Schofield; Re Austin; Ex parte Green; Re Austin. [36] Schofield involved a challenge to a decision of a magistrate discharging a police officer on a charge of assault. The magistrate had earlier heard charges brought by the officer against the applicants and had convicted them, making clear his view that they lacked credibility. When the same magistrate considered the charges brought by the applicants against the officer, there was, as the court accepted, a reasonable apprehension of bias, which should have led the magistrate not to sit. The officer was acquitted. Street CJ, adopted the passage from the judgment of Bailhache J in Simpson set out above and continued: [37]
"Here the tribunal was not ex facie unauthorized; it was a competent tribunal, and it was only by virtue of something personal to the magistrate then sitting that any question be raised as to the capacity of the tribunal to try these charges. Having proceeded and having dismissed the charges, I think that that ends the matter so far as a writ of certiorari to quash is concerned, and this Court should not, and indeed cannot, issue a writ under those circumstances."
In Schofield, the Full Court was invited to follow the Queensland case of R v Tchorzewski. [38] In the latter case Griffith CJ identified the issue as: [39]
"whether a justice of the peace who is a ratepayer is disqualified from taking part in any legal proceedings to which the local authority of which he is a ratepayer are parties. The prosecution was instituted on behalf of the Woongarra Divisional Board for breach of a by-law. When the case came up for hearing, Mr Barton, who was a ratepayer, took his seat on the bench as one of the justices. Both parties to the proceeding requested him to retire, on the ground that he was disqualified from sitting as he was a ratepayer. He was of opinion that he was not disqualified, and he refused to retire."
The Chief Justice (Cooper J agreeing) stated: [40]
"It is admitted that there is no instance in which a certiorari has been granted to quash an order of dismissal, and that is a very strong argument against granting the writ for that purpose; but, although it is a strong argument, I do not think it is a sufficient answer to the argument that where there is a legal wrong there is some remedy. … Certiorari is the appropriate remedy for setting aside an order made by a tribunal that has no authority to make it, and the pecuniary interest of one of the justices, in that sense, makes the tribunal incompetent."
The most recent English decisions preceding Davern v Messel included the following observations of Robert Goff LJ in Reg v Dorking Justices; ex parte Harrington: [41]
"Where a defendant has been in jeopardy and has been acquitted, the Court cannot interfere to quash the acquittal and order a new trial, however improperly the verdict may have been obtained. The matter will however be different if there has been such a mistrial as to render the proceedings a nullity; because if they are a nullity, the defendant will not have been lawfully liable to suffer judgment for the offence charged against him, and so will not have been in jeopardy."
That case has been accepted as a statement applicable to trials, not decisions of quarter sessions on appeal from a conviction. In the latter case the House of Lords held in R v Bournemouth Crown Court, ex parte Weight: [42]
"Mr Spokes submitted that once the court, being properly constituted, has started to hear the evidence the proceedings cannot be a nullity, with the consequence that the accused is in jeopardy and a decision for acquittal cannot be quashed. He relied upon Reg v Middlesex Quarter Sessions (Chairman), Ex parte Director of Public Prosecutions [1952] 2 QB 758. But that case was concerned, as Lord Roskill pointed out in this House recently in Reg v Dorking Justices, Ex parte Harrington [1984] 3 WLR 142 [1984] 3 W.L.R. 142, 149, with a trial on indictment at quarter sessions, that is with a trial in a court of first instance, and not with procedure at quarter sessions, sitting as an appellate tribunal. It is in my opinion of no assistance in the present appeal. In the Middlesex case the jury had returned a verdict of 'not guilty by direction' and it was held that that verdict could not be quashed. In the present case the court of first instance found the appellants guilty and an appeal against that decision was allowed by the Crown Court, but there has never been a decision or finding of acquittal by any court. Whatever the position may be at a trial before a court of first instance, when it comes to procedure before quarter sessions sitting as an appeal court there is a clear distinction of principle between allowing an appeal against conviction after proceedings in which all the available evidence, so far as it is in the opinion of quarter sessions admissible, has been heard, and allowing it after proceedings which have been prematurely aborted, without all the available and admissible evidence having been heard, because of a ruling by the court on a preliminary point. The former is not liable to be quashed. The latter, which is this case, is liable to be quashed …."
The distinction between patent or manifest lack of jurisdiction and other forms of jurisdictional error may not sit easily with current jurisprudence in this country; nor is the distinction between a decision flawed by error of law, and a "nullity" attractive. However, the distinction between quashing an acquittal at trial and reviewing the overturning of a conviction at a first level appeal was accepted in Davern v Messel. [43]
The result of the English caselaw was explained by Mason and Brennan JJ in Davern v Messel in the following terms: [44]
"It is evident from this examination of the English and Irish authorities that the distinctions which they draw are unsatisfactory and artificial. The distinctions were avoided by the Divisional Court of Queen's Bench in Reg v Wolverhampton County Court; ex parte Crofts, [45] where it was held that the double jeopardy rule has no application when certiorari is sought to quash an order of acquittal by a Crown Court obtained by fraud on an appeal from a conviction by justices. Donaldson LJ, with whom Webster J agreed, observed (at p 207):
'If the Crown Court decision is quashed, and this will only occur when it is the beneficiary of the Crown Court decision who has been guilty of the fraud, the result will be not that the defendant is twice put in peril, but that he remains convicted as a result of the first and only occasion upon which he was put in peril. That seems to me to be the distinction between this case and Rex v Simpson.'
This statement reflects a clearer understanding of the policy underlying the rule against double jeopardy and achieves a truer balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of the law. 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."
Where the result is to reinstate the conviction at trial, there may be a need to demonstrate that the intermediate appeal was the result of fraud or perjured testimony. In discussing "fraud" in a public law context sufficient to set aside a tribunal determination, the High Court in SZFDE v Minister for Immigration and Citizenship [46] referred to the acceptance of Crofts in Davern v Messel:
"[18] So strong was the policy protecting the due administration of justice, that a privative clause by which the legislature sought to exclude or attenuate the jurisdiction of superior courts to issue certiorari was ineffective to exclude the remedy where 'manifest fraud' was shown on the part of the party which had obtained the order in the inferior court. [47] Further, it was held in R v Wolverhampton Crown Court; Ex parte Crofts [48] that the double jeopardy rule had no application where the Queen's Bench Division granted certiorari to quash an order of acquittal obtained on the perjured evidence of the appellant to Quarter Sessions against his conviction by Justices; the effect of certiorari was to leave standing the regularly obtained conviction. In Davern v Messel [49] Mason and Brennan JJ saw Crofts as displaying a proper balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of justice."
The proposition that the supervisory jurisdiction of the Court extends to review an acquittal, following a summary trial by a competent tribunal, and absent fraud, cannot be maintained. That is because such a possibility runs counter to the general principle of law that a person who is prosecuted for a breach of the law, if acquitted, "is not to be a second time vexed." [50] The operation of that general principle is selected in the absence of cases involving the quashing of an acquittal by way of certiorari, and from the many cases relying on the proposition as the foundation of the requirement that any statute conferring a right of appeal in a criminal matter should not be construed as permitting an appeal by the prosecutor from an acquittal, unless such an intention is clearly and unambiguously expressed.
Three aspects of this passage should be noted. First, it related to administrative decision-making. The previous passage in the judgment commenced as follows:
"[23] Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. …"
The present case did not involve an administrative decision, but a criminal trial in a court of record. [53] That is not to say that serious errors might not result in a summary conviction being set aside: the principles articulated in Kirk v Industrial Court of New South Wales [54] identify when that may occur. However, to treat principles stated in relation to administrative decisions as operating without qualification in relation to criminal trials would be to ignore the important distinction drawn in Craig v South Australia. [55]
Secondly, as the joint reasons made explicit in both passages, the description was of a concept used "in the most generic sense". That language was consistent with recognition that the consequences of errors going to jurisdiction might well vary depending upon the context in which the question of jurisdiction was raised.
Thirdly, as noted in the passage immediately following those set out above, at [25], "jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error."
Bearing these considerations in mind, it does not follow that an error of the kind which would warrant setting aside a conviction and requiring a retrial will warrant the setting aside of an acquittal and the ordering of a retrial. To equate those situations would be to ignore the principles based on double jeopardy.
Rothman J was alert to the issue of potential double jeopardy. However, the only authority to which the Court was taken was the decision of the High Court in Pearce v The Queen. [61] There were two issues in Pearce: first, was an indictment oppressive because it included charges for two separate offences with overlapping, but not identical, elements, and, secondly, whether conviction and punishment for both offences constituted double punishment. The High Court dismissed the challenge on the first basis; the second is not presently relevant. Whilst acknowledging the force of the principle that a person should not be put on trial twice in respect of the same offence, Rothman J in effect held that the preliminary refusal of an adjournment, the refusal being unjustified in the circumstances, meant that there had never been a proper trial. His conclusions were expressed in the following terms:
"[27] There is little doubt that the effect of the refusal of the adjournment was to deny the prosecutor justice and the opportunity of properly presenting its case. In the exceptional circumstances outlined above, the rights of the accused to a speedy trial do not outweigh the requirement on the Court to provide to the prosecutor a proper opportunity of presenting its case. There is a denial of natural justice and, thereby, a constructive failure to exercise the jurisdiction conferred.
[28] The determination that the magistrate has constructively failed to exercise the jurisdiction has the consequence that the charge has not been dealt with and is still before the Local Court. The jurisdiction of the Local Court, having been enlivened by the laying of the charges, remains undetermined: that is, the constructive failure to exercise jurisdiction left the jurisdiction in law constructively unexercised: see Immigration and Multicultural Affairs, Minister for v Bhardwaj (2002) 209 CLR 597; Hebburn Ltd, Ex parte; Re Kearsley Shire Council (1947) 47 SR(NSW) 41664 WN (NSW) 107 per Jordan CJ."
Again, it is not necessary to determine whether the conclusion reached in that matter is consistent with authority. The present case is not one where a trial was aborted by a preliminary ruling, such as refusing an adjournment, the ruling being found to involve procedural unfairness to the prosecutor.
No satisfactory answer was given to that question. I do not think a satisfactory answer could have been given.
For those further reasons, I agree with the orders proposed by Basten JA.
[1914] 1 KB 66 at 75.
Simpson at 76-77.
[1895] 2 I R, at 636.
[1906] 2 I R 499.
(1953) 53 SR (NSW) 163 (Street CJ, Owen and Herron JJ).
Schofield at 166.
(1897) 8 QLJ 79.
Tchorzewski at 80.
Tchorzewski at pp 81-82.
[1983] QB 1076 at 1081, commenting on the judgment of Lord Goddard CJ in Reg v Middlesex Quarter Sessions (Chairman); Ex parte Director of Public Prosecutions [1952] 2 Q.B. 758.
[1984] 1 WLR 980 at 984.
Davern at 38-39 (Gibbs CJ, Dawson J agreeing at 70); 57-58 (Mason and Brennan JJ).
Davern at 58-59.
(1983) 1 WLR 204.
(2007) 232 CLR 189; [2007] HCA 35.
The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 [55]-[56]; [2004] HCA 32.
[1983] 1 WLR 204 at 207.
Davern v Messel at 58-59.
London Justices at 360 (Lord Coleridge CJ) quoted by Mason and Brennan JJ in Davern v Messel at 49.
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at [10.30].