Saffron v The Queen

High Court of Australia|1953-07-01|Before: Taylor JJ, Kitto J, Taylor J

High Court of Australia Dixon C.J. Kitto and Taylor JJ. Saffron v The Queen [1953] HCA 51

The applicant was tried upon an indictment under s. 21 of the Royal Commissions Acts 1923-1934 N.S.W. and acquitted. Another indictment appears to be pending based on evidence given by him under the same oath before the Royal Commission. After his acquittal the learned judge before whom he was tried, pursuant to an application made to him under s. 5A (2) of the Criminal Appeal Act 1912-1951 N.S.W., reserved questions said to be questions of law for the Court of Criminal Appeal. The provision to which I have referred, s. 5A of the Criminal Appeal Act, is of a novel description. By par. (a) of sub-s. (2) it requires a judge, at the request of the Attorney-General, to reserve for decision by the Court of Criminal Appeal questions of law arising at or in connection with a trial at which there has been an acquittal and the Court of Criminal Appeal is then to have power to determine the questions reserved. But par. (d) of sub-s. (2) says that the determination by the Court of Criminal Appeal of the questions reserved shall not in any way affect or invalidate any verdict or decision given at the trial. The person charged at the trial and acquitted may be represented at the hearing by the Court of Criminal Appeal of the questions reserved, and if he is not represented the Attorney-General may instruct counsel to argue on his behalf. There are provisions requiring the proceedings to be conducted in camera and protecting the person from publication of the result.

Among the questions which were reserved was one, No. 9, inquiring whether the whole or any part of the evidence given by the accused before the commission was rendered inadmissible by certain matters which the question then particularizes. That evidence was rejected at the trial. The Court of Criminal Appeal decided question 9 by saying the evidence was admissible, or, at all events, was not rendered inadmissible by reason of those matters. The applicant, who was acquitted in the manner described, now seeks special leave to appeal from that decision, and the question for us is whether it is an appealable matter.

Our jurisdiction to entertain appeals is one conferred by s. 73 of the Constitution, and it is a jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a number of tribunals. When a court is authorized by legislation to give an advisory opinion, no matter what language is used, its opinion is not a judgment, decree, order or sentence from which an appeal lies. Various statutes have provided for raising questions by a case stated, in such a way as to make it difficult to know whether the result of the determination of the questions so raised is advisory or not. The present section raises that question in an unprecedented form. It is quite definite in providing that the determination by the Court of Criminal Appeal of the question reserved shall not in any way affect or invalidate any verdict or decision given at the trial. The acquittal must therefore remain undisturbed. It does, however, use the expression "reserve the question for decision", and it does use the expression "determine"; but it is apparent that these expressions cannot be directed to the determination of any rights or liabilities which are to be litigated or affected. The rights and the liabilities involved in the charge have already been determined. The acquittal of the person has determined that he is not guilty, and that determination is to remain entirely unaffected.

I think that there can be no question that the decision of the Court of Criminal Appeal under sub-s. (2) of s. 5A cannot affect the rights of the person who has been acquitted, or his liabilities. It can operate only as a judicial precedent, having at best the effect which in English jurisprudence is afforded to the decisions of a court as precedents. That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability.

I think the applicant in the present case is not affected in respect of his rights or liabilities by the determination. At most he is, like any other of the Queen's subjects, liable to have the decision cited against him as evidence of what is the state of the law. In those circumstances I am of opinion that the decision on the case stated in relation to question 9 is not appealable, and that special leave should be refused.

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