Seaegg v R [1932] HCA 47

h. 'The right of appeal of a person so convicted is only as provided in 72 of the Judiciary Act 1903-1927.

"Decision of the Court of Criminal Appeal of New South Wales : R. v. Seaegy, (1982) 32 8.R. (N.S.W.) 640, affirmed.

e Judiciary Act 1903-1927 sec. 39, as follows :- - of the High

pro- . . . (6) Wherever an appeal lies (1) from the decision of any Court or Judge Court of a State to the Supreme Court of the

• shall be exclusive of the juris- tion of the several Courts of the , except as provided in this aga several Courts of the Ps within the limits of their eral jurisdictions, whether such re as to locality, subject matter,

State, an appeal from the decision may be brought to the High Court. (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge." By sec. 68 (2): - "The several Courts of a State exercising jurisdiction with respect to - (a) the summary conviction ; or (6) the examination and commit- ment for trial on indictment, or (c) the

'The provisions of secs. 39 (2) and 68 (2) of the Judiciary Act 1903-1927 did MevBourne,

Appeat from the Court of Criminal Appeal of New South Wales,

The appellant, Phillip Seaegg, was convicted at the Court of Quarter Sessions, Sydney, a Court of the State of New South Wales, upon an indictment in the name of the Attorney-General of Commonwealth, pursuant to the provisions of sec. 69 of the Judiciary Act 1903-1927, filed in the said Court, of an offence against s 56 (a) of the Commonwealth Crimes Act 1914-1928 in that he h with intent to utter them. An appeal by Seaegg to the Court of Criminal Appeal of New South Wales, under sec. 5 of the Criminal Appeal Act 1912 (N.S.W.), was dismissed by that Court on ground that it had no jurisdiction to entertain an appeal by offender convicted upon indictment before a State Court of an offence against the laws of the Commonwealth: R. v. Seaegg (1).

From this decision Seaegg now, by special leave, appealed to the High Court.

Curlewis, for the appellant. When the Commonwealth Legislature by sec. 68 (2) (c) of the Judiciary Act 1903-1927, gave jurisdicti to State Courts to deal with offences against the laws of the Common- wealth it gave all the incidences of such jurisdiction including the tight of appeal to the appellate Courts set up by the respectiy The Court of Criminal Appeal of New South Wale established by the Criminal Appeal Act 1912 (N.S.W.) was not a new tribunal but was the continuation of a Court and procedure which were in existence prior to the Judiciary Act 1903-1927. (Se secs. 428, 470, 471 and 474 of the Crimes Act 1900 (N.S.W.), rep by sec. 23 of the Criminal Appeal Act 1912 (N.S.W.).) The j diction conferred upon the State Courts by secs. 428, 470, 47 474 of the Crimes Act 1900 (N.S.W.) was "picked up" a retained by sec. 39 (2) of the Judiciary Act 1903-1927. If

trial and conviction on indictment, of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may be lawfully tried within the State for offences com- mitted elsewhere." By sec. 72 : - " (1) When any person is indicted for any

indictable offence against the laws 0 the Commonwealth, the Court which he is tried shall on the applic

by or on behalf of the accused made before verdict, and may discretion either before or after judg- ment without such application, rese any question of law which arises the trial for the consideration of Full Court of the High Court, or if the trial was had in a Court of a State 0

ll Court of the Supreme Court of (2) If the accused person ks d, and a question of law has n so reserved before judgment, the before which he was tried may 'pronounce judgment on the 'and respite exeoution ay the nt, or me the judgment Haasan bas been considered d. . . . (3) The presid- » is thereupon required to a case signed by him the ques- Jaw 80 reserved with the special ces upon which it arose." (Orinin Appeal Act 1912 '.) provides, by sec. 5 (1), that

K.C. (with him Nicholas), for the respondent. It is shown er sections in the Act that sec. 39 (2) of the Judiciary Act is -ambulatory. It only conferred jurisdiction on such State Courts e in existence at the time of its enactment. e out by sec. 77 (11.) of the Constitution. Appeal, and the dure therefor, in the case of indictable offences against the of the Commonwealth are provided for in sec. 72 of the Judiciary ct. Although it showed that appellate jurisdiction was vested in Courts existing at the time the Judiciary Act was passed, Ah Yick Tehmert (1) is not an authority for the proposition that appellate ction vests in Courts established by a State subsequent to the

xon J. referred to George Hudson Ltd. v. Australian Timber

the adoption of the view now contended for, uniformity is in the matter of appeals from State Courts exercising Federal ion; otherwise if sec. 39 (2) is ambulatory, and confers e jurisdiction upon any Court a State might choose to h, then appeals in cases involving Federal law might be It with in any tribunal set up by a State irrespective of whether ommonwealth approved or not. Such wide powers are neither oned nor contemplated by the Commonwealth Constitution. assuming that the Court of Criminal Appeal has jurisdiction r sec, 39 (2) it can only be exercised in the manner prescribed

"a person convicted on indictment may appeal under this Act to the Court " of Criminal Appeal " (a) against his conviction on any ground which involves a question of law alone; and (6) with the leave of the Court, or upon. the certificate of the Judge of the Court of trial that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal, and (c) with the leave of the Court against the sentence passed on his conviction."

sion of the Court of Criminal Appeal is correct, then a person H.C. or A. ed in a State Court of an indictable offence against the of the Commonwealth has no right of appeal.

by sec. 72 (Pasmore v. Oswaldtwistle Urban District Council 0 Josephson v. Walker (2) ). [Dixon J. referred to Dignan v. Australian Steamships Pty. (3).] It is suggested in Ah Yick v. Lehmert (4) that sec. 68 of Judiciary Act confers Federal jurisdiction in cases not covered sec. 39, but that can only be on the assumption that there was common law in the Commonwealth apart from statutory law (R. Whitfield ; Ex parte Quon Tat (5) ). Sec. 72 is not limited to th class of case dealt with by sec. 68, and therefore applies to any ¢ of case dealt with by any part of the Judiciary Act, including sec. 39 The nature of the appeal given by sec. 5 of the Oriminal Ap Act 1912 is different from the appeal given by sec. 72 of #) Judiciary Act. Although the words " with respect to" app in sec. 68 (2) are perhaps wide enough to include any State Co which exercise jurisdiction in the several matters therein referred they do not operate to avoid the provisions of sec. 72.

be quite inconsistent with the provisions of the Criminal Appeal and the Rules thereunder.] (Drxon J. referred to Le Mesurier v. Connor (6).]

Federal Legislature could not confer in advance appellate juri diction on any tribunal a State might see fit to establish.

[Dixon J. This Court cannot entertain an appeal from the verd ic (see R. v. Snow (7)).J

Tue Courr delivered the following written judgment : - The question for determination upon this appeal is whether | prisoner convicted upon indictment of an offence against the laws of the Commonwealth before a Court of Quarter Sessions may app to the Supreme Court of New South Wales as a Court of Crim

(1) (1898) A.C. 387. (5) (1913) 15 C.L.R. 689. ; (2) (1914) 18 C.L.R. 691. (6) (1929) 42 G.LR. 481, at pp. 499 (3) (1931) 45 C.L.R. 188. et seq.

(4) (1905) 2 C.L.R., at p. 607. (7) (1915) 20 C.L.R. 315.

peal according to the provisions contained in the Criminal Appeal 1912 of New South Wales. Sec. 5 of this statute enacts that a convicted on indictment may appeal under the Act to the of Criminal Appeal against his conviction or against the e passed on his conviction. "Indictment" is defined to Nn any information presented or filed as provided by law for

prosecution of offenders. We do not think that the State nactment by these general words intends to refer to prosecutions on indictment preferred by the law officers of the Commonwealth or offences against the laws of the Commonwealth. Such prosecu- tions are governed by the special provisions contained in secs. 69-77 Judiciary Act 1903-1927, which deal not only with the manner 'ich they shall be instituted and the jurisdiction in which they be tried, but with the nature and extent of the appeal from a on and the power of the Court hearing that appeal. Apart the general rule of construction requiring an interpretation ch would restrain the general words so that they would not apply eral proceedings so regulated and would confine the State nactment to State proceedings, the State statute contains specific to the Attorney-General of the State and to the Minister justice which place its meaning beyond doubt (see secs. 13, 16,

nvictions upon indictment preferred according to State law.

e appellant was convicted upon an indictment in the name of » Attorney-General of the Commonwealth filed in the Court of er Sessions pursuant to sec. 69 of the Judiciary Act 1903-1927.

inal Appeal Act, the appellant must, therefore, have recourse 0 some law of the Commonwealth which extends the operation of the State enactment and applies it to the conviction of offenders ainst the Federal law. Sec. 39 (2) of the Judiciary Act 1903-1927 upon for this purpose. That sub-section provides that the Courts of the States shall within the limits of their several ions, whether such limits are as to locality, subject matter, esscvise, be invested with Federal jurisdiction, in all matters

hich the High Court has original jurisdiction or in which original can be conferred upon it, subject to certain exceptions,

SEarca v Tue Kixe. Rich J. Dixon J. Evatt J MeTiernan J.

v. Tue Kine. Rich J. Dixon J. Evatt J. McTiernan J.

conditions and restrictions not presently material. It is said this provision operates to confer a Federal jurisdiction on the Stat Courts in relation to Federal offences coextensive with their Sts

over State offences, it automatically obtained the same jurisdicti over Federal offences. Sec. 39 (2) does confer upon State Federal jurisdiction coextensive with their State jurisdiction respect of matters which are, or may be placed, within the origin

may well be that sec. 39 (2) cannot convert the jurisdiction that subject matter into a Federal jurisdiction over a d subject matter, viz., appeals against convictions upon indict1 preferred pursuant to sec. 69 of the Federal Judiciary Act 1903- But in any case we think we ought not to construe sec. 39 (4 operating to give by reference to State law another and jurisdiction over the very same subject as the Judiciary Act 1 1927 itself specially provides for, viz., appeal from conviction. sec. 39 (2) was not intended to introduce such a jurisdiction by we of appeal is made clear by the presence in the Act of special pro expressly conferring a right of appeal against such conviction: although a limited right of appeal. Secs. 72 to 77 of the Judicic Act are headed " Appeal," and contain a code of procedure for an appeal by way of case stated upon a point of law raised at the tri These special provisions confer a different and narrower right 0 appeal and different but perhaps wider remedies. We think we ought not to construe the general words of sec. 39 (2) as capable of importing a new jurisdiction by way of appeal from convictio upon indictment which, in effect, would supersede these provis It is next said that sec. 68 (2) of the Judiciary Act 1903-1927 operat to give the appellant the right of appeal described by the Crim

Federal law. This sub-section provides that the several ts of a State exercising jurisdiction with respect to the trial conviction on indictment of offenders or persons charged with nees against the laws of the State shall have the like jurisdiction

s of the Commonwealth committed within the State. Does the e Court, as a Court of Criminal Appeal, exercise jurisdiction respect to the trial and conviction on indictment of offenders ? 7 s would not naturally be understood to refer to a juris- ction to hear appeals from such convictions, and we think that ce in the enactment of the special provisions contained 72-17 again operates to preclude such an interpretation. It that the Supreme Court was right in holding that the appellant 'not appeal to it except under the provisions of sec. 72 of the iary Act.

citor for the respondent, W. H. Sharwood, Commonwealth Solicitor.

lorr. - Since this decision was pronounced the Judiciary Act 1932