The Queen v Gee [2003] HCA 12 | Case summary

The Queen v Gee [2003] HCA 12 | Case summary | Zoe

That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.
Such a construction of s 68(2) leads to the result for which the appellant contends; a result that, as noted, had been accepted previously by the Full Court of the Supreme Court of South Australia, and the Court of Appeal in Queensland. The s 350 procedure involves the Full Court in an exercise of jurisdiction with respect to the hearing and determination of appeals arising out of a trial of persons charged with offences against the laws of the State or proceedings connected therewith. There is nothing in s 80 of the Constitution that bears upon the matter. Therefore, the Full Court has the like jurisdiction with respect to persons, such as the respondents, who are charged with offences against the laws of the Commonwealth.
The reason given by the majority in the Full Court for declining to accept that construction was based on legislative history and context.
Section 68 of the Judiciary Act is in Pt X. It constitutes Div 1 of Pt X, and is headed "Application of laws". The sub-heading is "Jurisdiction of State and Territory courts in criminal cases". Division 2 is not presently relevant. Division 3, headed "Appeals", reflects an important difference between the criminal justice system at the time of the enactment of the Judiciary Act and the present. Before 1912, criminal appeals in their present form did not exist in the Australian States. The Criminal Appeal Act 1912 (NSW) introduced criminal appeals in that State. Its counterpart in South Australia was enacted in 1924[7]. However, before 1912, there was legislation in the States which permitted a form of appellate review of decisions in criminal cases by way of case stated. When the Judiciary Act was enacted in 1903, ss 72-76, under the heading "Appeal", set out what was described in Seaegg v The King[8] as a "code of procedure for an appeal by way of case stated upon a point of law raised at the trial." That procedure was generally similar to corresponding State procedures.
At that time, s 68(2) did not contain the words "and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith". Thus, ss 72-77 were the only part of Pt X that dealt with appeals. Section 68 said nothing on that subject.
The words referred to in the preceding paragraph came to be added to s 68(2) in the following circumstances. New South Wales, in 1912, introduced a procedure for criminal appeals of the kind with which we are now familiar. In Seaegg, a question arose as to whether s 68, as it then stood, picked up that procedure and conferred upon the New South Wales Court of Criminal Appeal jurisdiction to hear an appeal by a person convicted in a State court of a federal offence. This Court answered that question in the negative. Section 68(2) was then amended to overcome that result by adding the reference to appeals. Thenceforth, appeals were dealt with by Div 1 of Pt X as well as by Div 3.
There is no reason why the reference to appeals in s 68(2) should not be applied with full generality, having regard to the purpose of Div 1 of Pt X of the Judiciary Act. Plainly, Div 3 is no longer a code of procedure with respect to appeals. It would be contrary to the purpose of the legislation to treat Div 3 as the exclusive source of jurisdiction in relation to appeals by way of case stated. The case stated procedure provided for by s 350 of the Criminal Law Consolidation Act is a form of appeal. It does not further the general policy of placing the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State to treat the provisions of Div 3 of Pt X as, in effect, confining the case stated procedures provided for by the Judiciary Act to those of the kind in force at the time of Federation. The fact that this might result in a degree of overlap between Div 1and Div 3 does not alter the case. This Court said, in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[9]:

As explained above, the procedure established by s 350 of the Criminal Law Consolidation Act comes within the meaning of "appeal" as defined by s 2 of the Judiciary Act.
It was contended that what was involved was not an appeal arising out of a trial, because the trial of the respondents had not yet begun. The procedure of early arraignment, and multiple arraignments, for the purpose of enabling resolution of questions such as those that arose in the present case, was discussed in R v Nicolaidis[10]. It is a familiar and convenient procedure designed, among other things, to minimise the inconvenience to juries that results from lengthy argument, often in the absence of the jury, after a jury has been empanelled, about matters that could have been resolved at an earlier stage. The respondents had been arraigned, and, for the purposes of s 68(2), the trial had commenced.
The review of the trial judge's decision on the questions reserved did not involve an invitation to the Full Court to give a purely advisory opinion. The Full Court could have directed the dismissal of the application to exclude evidence, and at the least, the trial judge, on an application to reconsider his rulings, would be required to follow the decisions of the Full Court.
As to the argument that there was a lack of capacity in the appellant to invoke the s 350 procedure, the matter is covered by s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).
I would allow the appeal and set aside the order of the Full Court and remit the matter to that Court for hearing and determination in accordance with the decision of this Court.
McHUGH AND GUMMOW JJ. The important question raised by this appeal from the Full Court of the Supreme Court of South Australia[11] concerns the construction of s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Does s 68(2) invest that Court with federal jurisdiction to hear and determine a question of law arising in relation to a trial in the District Court of offences against the laws of the Commonwealth and reserved by the District Court under a requirement imposed by order of the Full Court made on an application under s 350 of the Criminal Law Consolidation Act 1935 (SA) ("the Consolidation Act") by the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP")?

Thereafter, on an application of the Commonwealth DPP, the Full Court (Olsson and Mullighan JJ; Nyland J dissenting)[19] ordered that the trial judge be directed to reserve certain questions of law for consideration by the Full Court. The Full Court delivered its reasons for judgment on 2 September 1999. On 29 May 2000, after further steps which it is not necessary to narrate, save to say that on 18 May 2000 the Full Court (Doyle CJ, Duggan and Lander JJ) amended the order of 2 September 1999, the District Court judge stated a case reserving five questions for consideration of the Full Court. A five member Full Court heard argument on issues raised by the respondents respecting the jurisdiction of the Full Court to entertain the questions reserved. By majority (Doyle CJ, Prior, Duggan and Lander JJ; Bleby J dissenting), the Full Court held that it lacked jurisdiction to hear and determine the questions reserved by the District Court judge[20]. The leading judgment in the majority was delivered by Doyle CJ. Prior J agreed with the Chief Justice; Duggan J and Lander J also agreed and added reasons of their own.
The majority founded its decision upon the construction of s 68(2) of the Judiciary Act when read with other provisions of that statute. The reasoning in earlier decisions in South Australia and Queensland[21] which pointed to the contrary result was not accepted as meeting the points of construction which were now determinative.
The order of the Full Court was that, in respect of each of the questions reserved by the District Court judge, the Full Court declined to answer on the ground that it lacked jurisdiction to deal with the questions reserved. It is from this order that the present appeal is brought to this Court. Notice was given under s 78B of the Judiciary Act. The Attorney-General for South Australia intervened in support of the appellant. The Commonwealth Attorney-General did not intervene.
The appeal is brought in the name of the Queen, but it is accepted that it is conducted, as were the proceedings below, by the Commonwealth DPP in the name of the Queen. The source of that authority appears to be found in a combination of s 6(1)(a), s 9(1) and s 9(7) of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act"). The Commonwealth DPP seeks an order setting aside the orders made by the Full Court and remitting the matter to the Full Court for determination of the questions reserved.

It should be added that, contrary to a further submission by the respondents, to accept that the trial judge would be bound by the answers given by the Full Court is not offensive to Ch III of the Constitution. The reason advanced by the respondents appeared to be concerned with the giving of directions as to the exercise of a judicial discretion. The submission may have been suggested by what was decided in Chu Kheng Lim v Minister for Immigration[37] respecting the invalidity of s 54R of the Migration Act 1958 (Cth). However, the concern there was with a direction given to the courts directly by the Parliament.
In the Full Court, Doyle CJ also concluded, with reference to the definition of "appeal" in s 2, that the proceeding before the Full Court was an "appeal" for the purposes of s 68(2) of the Judiciary Act, being a proceeding arising out of the trial or out of proceedings connected with the trial[38]. That view of the "matter" provided an alternative or cumulative source of the jurisdiction conferred by s 68(2). It should have resolved the objection to competency.
Nevertheless, the Full Court decided that it had not been invested with the necessary federal jurisdiction to deal with the questions reserved. Doyle CJ reached that conclusion in two steps[39]. The first was that the decision of this Court given 70 years ago in Seaegg v The King[40] required the Full Court to treat the general provision in s 39 of the Judiciary Act as not investing it with jurisdiction with respect to "appeals" in matters arising on the trial by indictment of an offence against the laws of the Commonwealth. The second was that s 68(2), even as amended after Seaegg by the 1932 amendment, did not invest the Full Court with the necessary federal jurisdiction; the general terms of s 68(2) in its amended form still required some contraction in their operation so as to allow for the specific provisions in Pt X Div 3 (ss 72‑77) of the Judiciary Act.
It is convenient to deal first with the second of these considerations. If now determined to be as the Commonwealth DPP would have it, the result would be to establish the foundation of jurisdiction in s 68(2) without the need to consider that additional or alternative source in s 39.

The use in the first of these passages of the term "a code of procedure" gives rise to some difficulty. The term "code" may be used in various senses. Used in respect of the Judiciary Act or any provision or group of provisions thereof, it cannot identify a law which restates or replaces the common law, such as the bills of exchange, sale of goods and partnership legislation enacted in the United Kingdom in the second half of the nineteenth century. For at least since the time fairly shortly after its enactment, the Judiciary Act has not been the only law of the Commonwealth made in exercise of its power in s 77(iii) of the Constitution to invest courts of the States with federal jurisdiction[55]. It is not a "code" in the sense of an exercise by the Parliament of the power in s 77(iii) which purports to be exhaustive.
The term "code" also has been used to point out a particular characteristic with which the section or group of sections is endowed by the relevant statute. An example is the expression a "small self‑contained code" used in Parsons v BNM Laboratories Ltd[56] of ss 37 and 38 of the Finance Act 1960 (UK)[57]. In Seaegg the phrase "code of procedure" appears to be used in respect of ss 72‑77 to "preclude" what otherwise might be the operation of a more generally expressed provision in the same statute.
In construing the provisions of the Judiciary Act as it now stands, effect no longer should be given to those statements in Seaegg. This is so for several reasons. First, s 68(2) itself has been significantly amended by the 1932 amendment thereby bringing it into a changed relationship with ss 72‑77. Secondly, within the one statute, its various provisions, if it be possible, are to be given "a construction that will render them harmonious". That was how Gibbs J put the matter in Ross v The Queen[58] in considering provisions of the Criminal Code (Q). That attainment of harmony is not to be achieved by the adoption of notions respecting inconsistency between the several statutes of the one legislature[59] or respecting amendment and repeal[60].
Thirdly, some useful analogy is provided by the reasoning in cases such as Deputy Commissioner of Taxation v Moorebank Pty Ltd[61]. Provisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert a provision of State law into a Commonwealth legislative scheme which is "complete upon its face" where, on their proper construction, those federal provisions can "be seen to have left no room" for the picking up of State law[62]. The inclusion in s 68(2) of provisions respecting appeals by the 1932 amendment had the result that, if for no other reason, ss 72‑77 were not on their face a complete legislative scheme with respect to processes of an appellate nature, leaving no room for State laws to be picked up by s 68(2).
Fourthly, as the reference to Moorebank indicates, since Seaegg, the decisions of the Court have manifested developments in the approach to be taken to those ambulatory provisions of the Judiciary Act which "pick up" State law as it exists from time to time. Part X of the Judiciary Act (ss 68‑77) is headed "CRIMINAL JURISDICTION". Of that Part, Mason J said in R v Loewenthal; Ex parte Blacklock[63]:

Mr Robert Gee and Mr Hans Thaller ("the respondents") were jointly charged in May 1998 with offences against the Crimes Act 1914 (Cth)[81]. The respondents were alleged to have defrauded the Commonwealth by under-stating their incomes for taxation purposes. On 19 May 1998 a prosecutor, on behalf of the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") and in the name of the Queen, presented an information against the respondents to the District Court of South Australia. It was accepted that this document constituted an indictment alleging offences against a law of the Commonwealth. As a result of the engagement of s 80 of the Constitution, the trial of the respondents was required to be by jury and to be "held in the State where the offence was committed". That State was South Australia.
For the purposes of the trial, the District Court was constituted by Anderson DCJ. The respondents were arraigned before his Honour. They pleaded not guilty to all counts of the indictment. They have not been re-arraigned. No jury have yet been empanelled for the trial.
In accordance with s 285A of the State Act and the Rules of the District Court of South Australia[82], before the jury were empanelled, the respondents sought a preliminary determination by Anderson DCJ, of a question relating to the admissibility of prosecution evidence. His Honour acceded to that request. He ruled that the evidence had been obtained illegally and, in the exercise of his discretion[83], concluded that it was inadmissible and should be excluded from the trial. The respondents claim that, if that ruling stands, they will be entitled to an acquittal at their trial. It is unnecessary in this appeal to examine the grounds for the ruling, its correctness or its consequences.
The Commonwealth DPP applied to the Full Court to direct Anderson DCJ to reserve certain questions for consideration by that Court. The application was made purportedly in reliance upon s 350 of the State Act. The respondents did not at first contest the jurisdiction of the Full Court to entertain the application. In September 1999, by majority[84], the Full Court ("the first Full Court") purported to require Anderson DCJ to reserve questions on a case stated for the opinion of the Full Court.
It was at this point that the respondents raised the objections now before this Court. In November 1999, they applied to the Full Court to quash the decision of the first Full Court on the ground that it had been made without jurisdiction. Alternatively, they asked the Full Court to reopen the matter. The Full Court refused to do this. On 14 December 1999, in compliance with the order of the first Full Court, Anderson DCJ stated a case for the opinion of the Full Court.
An application for special leave to appeal against the orders of the first Full Court was refused by this Court. In May 2000 Anderson DCJ amended the stated case which was thus returned before the Full Court, differently constituted ("the second Full Court")[85]. The respondents advanced their challenge to the validity of the proceedings. That Court was then reconstituted to include five judges[86] to hear the respondents' challenge. It was this Full Court that in March 2001 concluded that it lacked jurisdiction to entertain the questions reserved. In accordance with its conclusion, the Court declined to answer the questions reserved[87].

Before turning to the reasons of the Full Court, and my own reasons, I must identify the State and federal laws the intersection of which ultimately determines the issues in this appeal.
The State Act was before this Court in Director of Public Prosecutions (SA) v B[88]. The provisions of the State Act for reserving questions of law arising on a criminal trial in South Australia were amended, in terms inapplicable to the information laid in that case[89]. However, those amendments introduced some of the provisions that now fall to be considered in this appeal.
Section 285A of the State Act provides that before the jury are empanelled, a court before which the accused is arraigned may hear and determine questions of law affecting the trial, including the admissibility of evidence[90]. Such a question must be one "affecting the conduct of the trial". Given the context, it is clear that the "trial" is defined broadly. The section itself contemplates that the question may arise "before the jury is empanelled".
The critical provisions of the State Act are found in s 350. As its terms are set out in other reasons, I will not repeat them[91]. Section 351 of the State Act provides for the statement of a case by the "trial judge"[92] and for the Full Court, if necessary, to refer the stated case back to the judge for amendment. By s 351A, the Full Court is empowered to determine a question "reserved under this Part and make consequential orders and directions". Specific provision is made concerning the setting aside of a conviction and the ordering of a new trial. However, if a defendant has been acquitted at trial "no determination or order of the Full Court can invalidate or otherwise affect the acquittal"[93].
By s 352 of the State Act, provision is made for the "right of appeal in criminal cases"[94]. Provision is made for appeals "on an issue antecedent to trial" adverse to a party[95]. By s 352(2), where an appeal or application for leave to appeal is made to the Full Court under the section, that Court is empowered to require the court of trial to state a case on the questions raised in the appeal or proposed appeal. The matter must then be dealt with as if such questions had been reserved on a stated case.
The provisions of the JA, relevant to these proceedings, are set out in other reasons[96]. Similarly, the terms of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act") are itemised and can be incorporated by reference[97].
The common references in s 68(1) and (2) of the JA to the "hearing and determination of appeals" were inserted by the Judiciary Act 1932 (Cth)[98]. That amendment was enacted to fill the gap identified by the decision of this Court in Seaegg v The King[99]. As originally enacted, the JA included ss 72-77 providing for "Appeal". The word "appeal" for the purposes of the JA is defined in s 2. By that section, unless the contrary intention appears, the word "appeal" in the JA "includes an application for a new trial and any proceeding to review or call in question the proceedings, decision or jurisdiction of any Court or Judge".
The provisions in the present Pt X Div 3 of the JA (ss 72-77) reflect the limited form of appeal in criminal jurisdiction that existed in Australia before and at the time of federation[100]. Prior to the enactment of the Criminal Appeal Act 1907 (UK), a general appeal in criminal proceedings, whether against conviction or sentence, was not available. The normal way of challenging a conviction was by writ of error brought on the fiat of the Attorney-General to reverse the judgment (or a like writ[101]) or by the reservation by the trial judge, during the trial, of questions of law that, after the verdict of the jury, formed the basis of a stated case which the judge could transmit to the judges of the Supreme Court in banc. They had the power to determine the question, to affirm, amend or reverse the judgment and arrest the same in a case where a substantial wrong or other miscarriage of justice was shown[102].
At the time of federation, it was not uncommon for such procedures to be collected in colonial statutes under the heading of "appeals"[103]. These features of criminal "appeals" therefore existed at the time of the original passage of the JA in 1903. They explain the title ("Appeals") under which ss 72-77 of that Act still appear[104]. For the majority in the second Full Court, the continued presence of these sections was determinative.

On the way to reaching the conclusion that it lacked jurisdiction to decide the case stated by Anderson DCJ, the second Full Court disposed of a number of arguments raised by the respondents. Thus, in answer to the contention that s 68(2) of the JA had not been engaged because the "trial" of the proceedings against the respondents had not commenced, the Full Court concluded that, to determine when a trial begins, it is necessary to have regard to the context for which the question must be answered[105]. On that basis, as the respondents had been arraigned in the District Court before the judge who was to conduct their trial, the question reserved was one arising out of the trial. Upon this point, there was no disagreement in the Full Court[106].
Another argument was based on the contention that the procedure for reserving questions of law under s 350 of the State Act, as it had been invoked, did not come within the meaning of the word "appeal" in s 68(2) of the JA. Lander J, one of the judges in the majority in the Full Court's disposition of the matter, did not consider that the procedure contemplated by the State Act was an "appeal" for the purposes of the JA[107]. However, all the other judges in the second Full Court[108], including the dissenting judge[109], reached the opposite conclusion. For them, the case stated procedure envisaged by s 350 of the State Act, although not an appeal as that word is now ordinarily used, sufficiently fell within the extended definition of "appeal" in the JA to attract s 68(2).
A majority of the judges of the Full Court also rejected the respondents' argument that the review of the decision of Anderson DCJ, on the questions reserved, was a purely advisory or hypothetical exercise, such as could not be conferred on a court, including a State court, exercising federal jurisdiction. Their Honours accepted that, were it so, the attempted conferral of advisory jurisdiction would fail for constitutional reasons. However, they held that what the second Full Court was required to do, pursuant to the application before it, was part of "the ordinary administration of the law"[110]. The trial judge would be obliged, in disposing of the trial, to follow the answers given by the Full Court on any application to reconsider his evidentiary rulings. On that basis a majority decided that the Full Court's jurisdiction was not advisory[111].
The same majority rejected an argument that the Commonwealth DPP lacked power, pursuant to his own Act[112], to ask the trial judge to reserve a question of law, or to apply to the Full Court to request such a reservation, relying upon s 350 of the State Act[113]. They held that there was no reason to read the reference to rights of "appeal" more narrowly in the DPP Act than in the JA.
Having reached these conclusions, the majority of the Full Court struck the obstacle that was regarded as fatal to the purported reference of questions to that Court. Three judges in the majority (Doyle CJ, Prior and Duggan JJ), rejected the construction of "appeal" in s 68(2) advanced by the Commonwealth DPP. They did so because of the express provisions for "appeals" by way of a stated case in ss 72-77 of the JA.
Doyle CJ, who expressed the reasons for the majority's conclusion in this regard, was driven to his opinion by his view concerning the operation of the latter provisions in the context of the JA and by a number of related historical considerations. Such considerations included the fact that, when the word "appeal" was inserted in s 68(2) in 1932, there were no State legislative provisions conferring jurisdiction on State courts similar to those now contained in s 350 of the State Act[114]. Further, when it inserted the word "appeal" in s 68(2) of the JA the Federal Parliament did not repeal, but left standing, ss 72-77[115]. Having provided expressly by federal law for a case stated procedure, there was neither need nor occasion for the JA to adopt a State procedure for stating cases that overlapped with the provisions of the JA that the Federal Parliament had left standing[116].
In his dissenting reasons, Bleby J reached the opposite conclusion on this point. He regarded ss 72-77 as providing a "fundamental guarantee, whatever restrictions may be placed on appeals or reviews by State legislation"[117]. Accordingly, he did not consider that the broad definition of "appeal" in s 2 of the JA should be read down to reflect a contrary intention in that Act, read as a whole[118]. On that footing, Bleby J concluded that s 68(2) could pick up the State Act provisions. In his view, the procedure could properly be characterised as an "appeal". The sub-section therefore conferred on the State courts "the like jurisdiction with respect to persons who are charged" with federal offences.
The respondents supported the conclusions of the majority in the Full Court. They also filed a notice of contention. This contested the existence of an "appeal" within the JA; asserted that the purported "appeal" amounted to an advisory opinion forbidden by the Constitution and repeated the argument concerning the want of power of the Commonwealth DPP to prosecute his application to the Full Court. The Commonwealth DPP submitted that the conclusions of Bleby J were correct.

The problem: It would have been possible for the Constitution to have established a single national judicial system, with courts having jurisdiction to apply both federal and State laws. Instead, it provided for separate systems of federal and State courts.
The inventive provision[119] by which federal law could provide for "investing any court of a State with federal jurisdiction" has been held to exclude reciprocal measures by State law[120]. Provided there is a foundation in its legislative powers, the Federal Parliament can enact laws to govern the exercise of federal jurisdiction, both at first instance and on appeal[121]. However, such laws must conform to the rule obliging the Commonwealth to accept State courts as it finds them[122]. In the present case, the Federal Parliament could have enacted specific laws permitting State courts exercising federal jurisdiction to reserve questions for the determination by a Full Court on matters arising before the commencement of a criminal trial. Such laws could have allowed the Commonwealth DPP to secure review by a Full Court of a decision at first instance. Such a federal law would have uniform application throughout the Commonwealth to all persons charged with offences against a law of the Commonwealth. Any such provision would be subject to the requirements of s 80 of the Constitution[123].
Because there is no specific federal law to sustain the proceedings that the Commonwealth DPP has brought to the Full Court, it is necessary to decide whether the relevant State laws are picked up by the general provisions of the JA to invest that Court with federal jurisdiction. The State laws, on their own, cannot achieve this result. It is not competent for the State Parliament, by its law, to control and regulate the exercise of federal jurisdiction. A similar issue arises in relation to the exercise of his federal powers by the Commonwealth DPP. This follows as a matter of statutory construction. The references in the State Act to the "court" and "Full Court" must be read as limited to such bodies exercising State jurisdiction. The reference in the State Act to the "Director of Public Prosecutions"[124] would likewise be interpreted to refer only to the State office holder of that name. However the problem lies deeper. Without consent by federal law, State lawmakers enjoy no power to regulate federal concerns or the conduct of federal office holders.
It was to solve such problems that the JA provided, in a number of sections, for the investment of federal jurisdiction in State courts[125] and the application of State laws to the exercise of such jurisdiction[126]. Necessarily, such provisions, expressed in general terms, present controversies at the margins concerning whether, in the particular case, a State court has "like jurisdiction" with respect to persons charged with federal offences[127]. Similarly, questions can arise as to whether State laws are applicable to the particular case. Because the application of such provisions involves a measure of adaptation proceeding through reasoning by analogy[128], it is inevitable that, in particular cases, different minds will reach different conclusions. The duty of this Court is not simply to solve each such problem as it arises. It is to do so according to clear and consistent principles.
Two questions: There are two questions that need to be answered. The first (which was determinative for the Full Court) is whether the JA[129] invested the Full Court with federal jurisdiction to require Anderson DCJ, pursuant to the State Act so applied, to reserve a relevant question[130] and thereafter to consider and determine that question[131].
Secondly, assuming that question is answered favourably to the Commonwealth DPP, a further question is raised by the notice of contention filed by the respondent, Mr Gee. This concerns whether the Commonwealth DPP had any such right of "appeal" under the DPP Act enumerating his powers, when that law is read together with the State Act and the JA.
The issues: The arguments addressed to these two questions were fleshed out to present five issues for the decision of this Court.

The appeal issue: Whether by force of s 68(2), read with s 2, of the JA, the State Act was engaged so that it applied to State courts exercising federal jurisdiction.
The stated case issue: Whether, having regard to the provisions in Pt X Div 3 of the JA, the subject matter of "appeal" by reservation of questions in a stated case had been expressly covered by the JA, so as to make it clear that the general provisions of that Act did not confer on State courts exercising federal jurisdiction the jurisdiction to reserve and determine questions in accordance with the State Act.
The trial issue: Whether, having regard to s 80 of the Constitution, whereby the "trial" on indictment of an offence against federal law must be by jury, the application to such a trial of provisions of the State Act allowing for interlocutory appeals was forbidden.
The advisory opinion issue: Whether the exercise of the Full Court's power to determine the reserved questions under the State Act amounted to the provision of an advisory opinion, forbidden to that Court when exercising federal jurisdiction.
The Cth DPP power issue: Whether, having regard to the federal legislation conferring his powers, the Commonwealth DPP had the authority to invoke the jurisdiction conferred on the Full Court under the State Act.

The respondents' arguments: The respondents' first argument was that the JA was not engaged in their case to confer jurisdiction on the Full Court either to require the reservation of questions or to hear and determine such questions under the State Act. They contested the proposition that the general language of s 39(2) of the JA picked up such an exceptional State procedure. They also submitted that the particular language of s 68(2) of the JA, in respect of criminal jurisdiction, was only engaged to confer a "like jurisdiction" where federal jurisdiction was being exercised.
Primarily, the respondents' submission on this point involved arguments of statutory construction. They submitted that the provisions of the State Act governing the reservation of questions for the Full Court, and the determination of such questions by that court, did not constitute "laws of the State … with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith" within s 68(2) of the JA. The respondents argued that the word "appeals", where used in that sub-section, did not extend to the kind of procedure permitted by the State Act. Even if it did, such procedures did not fall within the adjectival clause in their case. This was because the respondents had not been "convicted" nor had their "trial" commenced. As a matter of construction, therefore, the proceedings before the Full Court did not "arise out of" a trial nor "out of any proceedings connected" with it.
In support of this argument, the respondents submitted that the word "appeal" would not ordinarily be broad enough to include the special procedure of reservation of questions to a Full Court. They argued that the history of the JA, and of the introduction of the reference to "appeals" confirmed this approach. At the time the JA was originally enacted in 1903, there was no right anywhere in Australia to an "appeal" against conviction or sentence in a criminal matter, using that word in the modern sense. The notion of an appeal in such cases was only adopted when the States of Australia copied the Criminal Appeal Act 1907 (UK)[132]. Accordingly, when s 68 was first enacted, it did not contemplate "appeals" as such. Its application to State appellate procedures would not therefore have been intended.
The introduction into s 68 of the reference to "appeals" followed the decision in Seaegg[133]. The respondents argued that the added words were only intended to solve the problem identified in that case. They were restricted to picking up "appeals" after the conclusion of a trial or the conviction of the accused. They were not intended to pick up interlocutory appeals that would fragment the conduct of "trials" of persons accused of federal offences. Such fragmentation could be used to oppress the accused. It was alien to the ordinary notion of an "appeal".
The respondents pointed out that the statutory procedure for the reservation and determination of questions by the Full Court under the State Act, in respect of the determination of questions before the jury were empanelled, was unique to South Australia. They invoked the reasons of Barwick CJ dissenting in Peel v The Queen[134], in a passage referred to with apparent approval in the joint reasons in Byrnes v The Queen[135]. In Peel, Barwick CJ had taken a strict view of the words in s 68(2) of the JA. He concluded that "neither an appeal against acquittal nor an appeal against sentence is an appeal arising out of any proceedings connected with the trial: nor is an appeal against sentence an appeal arising out of any proceedings connected with the conviction". The strictness of Barwick CJ's view was based, in part, upon his understanding of the language of s 68(2). But it was also based on the mischief that his Honour saw to the uniform treatment of persons accused of federal offences, regardless of where the trial took place in Australia. Barwick CJ instanced the then unique provisions of Tasmanian law permitting prosecution appeals against certain acquittals[136]. He suggested that this provided an argument against the adoption of a broad view of the language of s 68(2). Such an interpretation would lead to the introduction into federal jurisdiction, through an indirect means, of radical departures from normal criminal procedure.
The respondents contested the proposition that the broad definition of "appeal", appearing in s 2 of the JA, altered these conclusions. That definition was subject to a "contrary intention". Moreover, the use of the definite article ("the") indicated that the type of "appeal" for which provision was made in the case of a "review" or process calling into question a judicial disposition was one addressed to the entire "proceedings, decision or jurisdiction". It was not one confined to a mere evidentiary ruling, such as was involved in the present case. On this basis, the respondents submitted that "appeal" and "review" for the purposes of s 68(2) should be reserved to their ordinary meaning and not stretched to include the exceptional provisions allowed under the State Act.
As to the adjectival clause qualifying "appeals" in s 68(2), the respondents finally argued that this contextual consideration reinforced the conclusion that the only "appeals" spoken of there were those that followed the conclusion of the trial, the conviction of the accused and proceedings at that stage connected with the trial or conviction. In support of this argument, they pointed to the place in the sub-section of the reference to "appeal" following the earlier mention of "summary conviction", "commitment for trial" and "trial and conviction on indictment". Given the temporal sequence reflected in s 68(2), the respondents submitted that the "appeals" provided for were those that history endorsed: appeals after the conclusion of the trial, not another process initiated whilst the trial was underway, still less before it had commenced.
Section 68(2) was engaged: Whilst I accept that the foregoing arguments provide a possible construction of s 68(2) of the JA I do not believe that it is the correct or preferable one.
Although the word "appeals" might not, in isolation, include the type of procedure provided by the State Act, it is a mistake to interpret words in isolation or as if locked in a statutory time capsule. It is necessary to look to the purpose for which s 68(2) was included in the JA. This reflects a recognition that federal law will often be lacking in detail to cover situations arising in the exercise of federal jurisdiction in State courts. Accordingly, it was necessary to provide the means of borrowing State laws, whether about the jurisdiction of courts or the application of State laws so as to fill gaps in procedural law. There is nothing in the character of the procedure for reservation of questions to the Full Court that puts it outside the notion of "appeals", as that word is used in the JA. Elsewhere in that Act, a somewhat analogous procedure appearing in Div 3 of Pt X under the heading "Appeals" suggests the contrary. Given the context, the extended definition of "appeal" and the fact that it includes proceedings of "review", it is impossible to limit "appeals" in the JA so as to exclude the kind of procedure for which the State Act provides.
The attempt to construe the reference to "appeals" in s 68(2) of the JA by the way in which that word would have been understood historically, whether in 1903 or 1932, is misconceived. It is ordinarily a mistake to construe statutory language by reference only to the contemporary understanding of words at the time of the statute's original enactment[137]. Especially in the case of an act such as the JA, which is intended to have an ambulatory and remedial function, that approach would defeat the attainment of those purposes. The JA is intended to apply from time to time in relation to the body of common law and statute that is constantly changing. It would constrict, and even stultify, the operation of the JA, if the "like jurisdiction" with respect to federal criminal proceedings, for which sub-s 68(2) provides, were confined to the "jurisdiction" of courts existing in 1903 or 1932. That construction would frustrate the purpose of the Act and thus must be rejected[138].
This conclusion does not require that every innovation of State law be picked up, and applied, in the exercise of federal jurisdiction in State courts. The jurisdiction invoked must still fit within the terms of the JA and the requirements stated or implied in the Constitution. The application is limited to investing State courts with "like jurisdiction" in federal criminal proceedings. This necessitates the drawing of lines about which opinions will sometimes divide. However, in performing this function it is important to keep in mind the purpose for which the provisions in the JA were enacted. Relevantly, the legislative policy was to put the exercise of federal jurisdiction generally on the same footing as the exercise of State jurisdiction and to avoid the creation of two wholly independent systems of criminal justice[139]. Increasingly in recent years, such considerations have led to a broad construction of the enabling provisions of the JA so as to make available to the parties in federal jurisdiction new facilities enacted by State law[140].
It is beside the point to argue that the consequence of such a broad interpretation is the introduction of disparity in federal proceedings in different jurisdictions of Australia, as permitted by State (or Territory) law. This is within the contemplation of the JA provisions. To the extent that it reduces a strictly uniform treatment of persons accused of federal offences, such an outcome is, in part, inherent in the constitutional provision for the vesting of federal jurisdiction in State courts and, in part, in the scheme for a large measure of assimilation of jurisdictional and procedural law enacted by the JA[141]. One can criticise such disuniformity in a particular case. However, it is embedded in Australian law and practice, except to the extent that the Constitution, the texts of specific federal legislation and judicial decisions otherwise provide.
As to the argument that the "trial" of the respondents had not commenced when the "appeal" was taken to the Full Court under the State Act, such a view cannot be reconciled with the decision of this Court in Director of Public Prosecutions (SA) v B[142]. In that case, the joint reasons of the majority, speaking of the statutory predecessor to the provisions in the State Act in question here, observed that the trial began after the accused was arraigned before the trial judge[143]. The same approach was adopted by McHugh J[144]. I took an even broader view, although in dissent as to the result[145].
In the present case, the respondents had been arraigned before Anderson DCJ. In that sense, the process of their "trial" had commenced. Upon any view, the determination of the preliminary question as to the admission of evidence by Anderson DCJ was important. Quite possibly it was critical for such "trial". I see no reason for reading the jurisdictional provisions of the JA narrowly so as to treat the procedures in the State Act, amounting to an "appeal", as unavailable because they do not "arise out of any such trial". If there were any doubt about this, the inclusion of the phrase "or out of any proceedings connected therewith" is sufficient to include the reservation of questions for the Full Court arising out of the preliminary determination of the trial judge.
Through an oversight, the respondents were not re-arraigned before the proceedings leading to the trial judge's actual decision on the exclusion of evidence. I agree with Doyle CJ that such omission was immaterial[146]. Having come to this conclusion in relation to the language of s 68(2) of the JA, and a foundation having been shown in that sub-section for the jurisdiction of the Full Court, I regard it as unnecessary to explore any additional or alternative source of jurisdiction in s 39(2) of that Act. This is not a case in which to explore the precise relationship between ss 39 and 68 of the JA[147].

It was this Court's repeated description of ss 72-77 of the JA as a "code" for appeals by a case stated that, perhaps unsurprisingly, led the majority in the Full Court to the conclusion that a State law dealing with a similar (and to some extent overlapping) procedure could not co-exist with the federal provisions. The Federal Parliament having turned its attention to that procedure, and having enacted particular provisions in relation to it, the respondents submitted that it must be assumed that this excluded the importation of a State legislative variant by way of the general facultative provisions of the Act, particularly s 68(2).
The respondents drew a distinction between what they saw to be the policy in ss 72-77 of the JA and that reflected in the provisions of the State Act for the reservation of questions for a Full Court. They submitted that the former constituted a self-contained procedure for reserving important questions, without interrupting the conduct of the "trial" of a person charged with a federal offence. Such interruptions create risks of delaying and fragmenting the trial process in a way contrary to the repeated instruction of this Court[150]. On the other hand, the State Act enlarged the ability of the prosecution to "appeal" against interlocutory decisions and evidentiary rulings. It was in this distinction that the respondents found the justification for the conclusion of Doyle CJ in the Full Court that federal law had already made provision for reserving questions for a Full Court so that "[t]here was simply no need or occasion for the Commonwealth Parliament to adopt State laws making provision for an appeal by way of case stated"[151].
As to the suggestion of the dissenting judge, Bleby J, that the JA provisions for the reservation of questions to a Full Court (including of this Court) constituted a "minimum" catalogue of appeal rights, the respondents urged that this was a view incompatible with the history of those provisions and with the restriction in s 77 of the JA of appeals to this Court from a judgment or sentence, save for the case where special leave was granted.
The respondents pointed to the overlap between the provisions of the State Act[152] and provisions of the JA[153]. In some cases the overlap is clear. In others it is implicit[154]. The fact that the State Act draws a distinction between procedures by way of "appeal" and procedures in the form of a case stated was suggested as another argument against the importation into federal jurisdiction of a procedure that was already expressly enacted to apply to that jurisdiction, uniformly throughout the country. In the event that there was doubt about the matter, and ambiguity in the provisions of the JA, this Court was urged to resolve the doubt in a way that confined prosecutorial powers, absent a clear indication to the contrary by the Parliament[155].
State review was picked-up: The conclusion of the majority in the Full Court was understandable, given the reasoning of this Court in Seaegg and subsequent pronouncements. This Court has insisted that it is its own function to modify, or re-express, a clearly stated legal rule elaborated by its earlier decisions[156]. The statement in Seaegg[157] that the provisions of ss 72-77 contained "a code of procedure for an appeal by way of case stated upon a point of law raised at the trial", and the decision to which that conclusion led in that case, presented proper reasons for the second Full Court to hesitate before attempting to confine what was said there.
However, this Court is entitled, and required, to reconsider the matter in the light of the amendments to the JA that followed Seaegg, the growing experience with the JA since 1932 and the adoption of State law and the jurisdiction of State and Territory courts in the conduct of cases in federal jurisdiction. Given these changes, it can now be said that the reference to ss 72-77 as containing a "code of procedure" was unnecessarily broad, at least viewed with today's eyes. It was a description inessential to the conclusion expressed in Seaegg. It is difficult to reconcile the notion that ss 72-77 of the JA constituted an exclusive "code" of appellate procedure with the later inclusion in s 68 of reference to "appeals" and the subsequent decisions of this Court on the application to such appeals of State (or Territory) jurisdiction and laws.
Each case where such issues arise requires a determination whether a particular appellate procedure of a State is compatible with the exercise of federal jurisdiction. The answer to that question obliges the decision-maker to take into account any express or implied requirements of the Constitution and any express provisions of federal law that oust the operation of "surrogate" State laws dealing with jurisdiction of courts, procedures and the like.
Where, as in the present case, there is textual overlap between a provision of federal law dealing with the reservation of questions for a Full Court and the provisions of a State law affording the same, or similar, facilities, an issue of the potential inconsistency of laws is presented. It is not inconsistency of the kind which concerns s 109 of the Constitution. In this case, there is no purported clash between the State Act and the provisions of ss 72-77 of the JA. Here, the suggested conflict is between two federal laws, being ss 72-77 and the provisions of the State Act allegedly given federal operation by other provisions of the JA, most notably s 68(2). Because this is not a case involving s 109 of the Constitution, it is inappropriate to import into the resolution of this appeal the jurisprudence developed in connection with that provision dealing with cases of suggested textual collision where a demonstrated "intention to cover the subject matter" or field by the federal law works to exclude any space for a law of a State to govern the same conduct or issue[158]. Nevertheless, the two tasks are not wholly dissimilar.
The resolution of the question posed by the suggested operation of the successive provisions of the JA obliges the decision-maker to perform a function of statutory construction[159] and to do so looking at the substance, not just the verbal form, of the competing provisions[160]. The object is to allow the sections of the JA to work in harmony and in a way that advances their beneficial purpose to make effective the constitutional provision for the vesting of federal jurisdiction in State courts. This was one of the most inventive ideas of the Constitution. It should not be diminished without convincing reasons.
Approached in this way, it can be said that this Court looks today on a provision such as s 68(2) of the JA in a less restrictive manner than it was inclined to do 70 years ago. In part, this is because of the recognition of the fact that, so far as jurisdiction is concerned, Australian courts can be trusted to exercise it fairly and for the better administration of justice[161]. In part, it is because the experience of applying State laws in federal jurisdiction has proved so beneficial. In part, it is because of the recognition of a need to facilitate and take advantage of innovations of jurisdiction and law in federal jurisdiction, as they are introduced in the laws of particular States.
This last consideration is specially relevant to the present case. A notable feature of criminal procedures today, when contrasted to those of the time when Seaegg was decided, is the significant increase in the complexity and length of criminal trials. This is an important reason behind the innovations in the State Act permitting questions relating to the admissibility of evidence or matters of law affecting the conduct of the trial to be decided before the jury are empanelled[162]. Such procedures were unheard of until recent times. Yet they are a useful development of criminal jurisdiction. Properly deployed, they can save substantial delays, costs to parties and the public and great inconvenience for citizens serving as jurors. Applied in criminal proceedings in federal jurisdiction, they advance, and protect, the availability of jury trial envisaged by s 80 of the Constitution in relation to trial on indictment of persons accused of federal offences[163].
The respondents did not contest these matters. On the contrary, they were themselves the beneficiaries of such a preliminary judicial determination. However, they were willing to take its advantages but not prepared to accept the procedural facility for an interlocutory appeal by way of reservation of questions on application by the prosecution.
If one surveys the decisions of this Court in recent years concerned with the use of the JA to pick up State and Territory jurisdiction and law for application to proceedings, civil and criminal, in federal jurisdiction in State and Territory courts, a trend can be discerned against the narrow reading of the Act. Thus, such provisions have been held to permit appeals by the federal Attorney-General against sentence[164]; to authorise the amendment of an indictment in accordance with State law[165]; to permit the Commonwealth DPP to appeal against sentence[166]; in certain circumstances to pick up limitation acts (or other statutory provisions) in terms applicable only to State courts[167] and to sustain the application of a Territory law to proceedings in the Family Court[168].
The growth and variety of federal jurisdiction has also led to an increased recognition of the utility of the provisions for the adaptation of State laws to that jurisdiction. These are reasons why the somewhat narrower approach, expressed in decisions such as Seaegg needs to be reconsidered in contemporary circumstances. This does not mean that those decisions were wrong when they were made; simply that some of the language explaining them may not be applicable to the resolution of current problems[169].
Approached in this way, I see no difficulty in the hearing and determination of questions reserved affecting the conduct of a trial, determined before the jury are empanelled, in attracting the facility in the State Act for the reservation and determination of such questions by the Full Court of the Supreme Court of South Australia exercising federal jurisdiction.
Within the four corners of the JA there is otherwise no textual conflict between the exercise of the jurisdiction provided by the State Act pursuant to s 68(2) of the JA and the exercise of the jurisdiction envisaged by ss 72-77 of the JA. Nor do those latter sections evidence a purpose to exclude from the exercise of federal jurisdiction the provisions of the State Act invoked by the Commonwealth DPP. It is not surprising that the provisions in Pt X Div 3 of the JA are silent about challenges to preliminary rulings in criminal trials. There were no provisions for such rulings in any Australian jurisdiction until quite recently. They have been enacted in response to changes in the features of criminal proceedings.
The respondents' complaint about bifurcation and delay in criminal proceedings is specifically addressed in the State Act. The Full Court is enjoined not to reserve a question for consideration and determination if doing so "would unduly delay the trial or sentencing of the defendant"[170]. Nor is the facility of reservation of questions for, or appeal to, a Full Court of this Court, provided in Pt X Div 3 of the JA, in any way diminished. Those facilities remain to be used if the trial proceeds before a jury. In the event of textual clash between the State Act and the provisions in Pt X Div 3 of the JA, the latter will prevail and oust the importation of the former into federal jurisdiction by means of the general provisions of the JA.
Looked at with today's eyes, the provisions for appeal by way of case stated in the JA may appear to be somewhat dated - reflections of provisions for criminal appeals as they existed a century ago. But, as Bleby J observed, they remain a minimum guarantee of appellate supervision of federal criminal trials. They do not purport to oust comparable later and more innovative State provisions affording jurisdiction to courts and introducing laws and procedures more in keeping with modern notions of the exercise of criminal jurisdiction. It is a common experience of federation that jurisdictional, procedural and substantive innovation in one part of the country sometimes results in similar developments elsewhere. Provisions such as s 68(2) facilitate this beneficial feature of the Constitution until the Federal Parliament decides upon any comprehensive reform of its own criminal appeal provisions.

The foregoing remarks were addressed to the questions reserved in the stated case then under consideration. These had peculiar and unique features resulting in an acquittal of the accused which the Crown had contested[175]. By reason of the conclusion that the questions reserved did not arise at the "trial" of the accused, a majority of this Court were of the opinion that there was no power to reserve them[176]. Accordingly, it was held that this Court "should not, and indeed cannot, accept the invitation … to express its opinion upon the issues"[177]. I expressed a different view about the "practical and concrete problems" to which the case stated had been addressed[178].
The determination is not hypothetical: In the present proceedings, the case stated is far from hypothetical. It is not divorced from the conduct of the respondents' trial. Indeed, it bears close analogies to the provisions considered in Mellifont v Attorney-General (Q)[179]. There, the trial judge had ruled that the evidence that the accused had given to a Royal Commission was not material to the inquiries of that Commission. Before the judge could direct the jury to return a verdict of not guilty to the charge of perjury contained in the indictment, the prosecutor entered a nolle prosequi and the accused was discharged. It was in those circumstances that the Attorney-General referred questions to the Court of Criminal Appeal. These included whether the trial judge's test of materiality had been correct[180].
In Mellifont, this Court rejected the argument that the provisions in the Criminal Code (Q)[181], permitting the reference by the Attorney-General to the Court of Criminal Appeal of any point of law that had arisen at the trial, was outside the constitutional provision authorising an appeal to this Court[182]. The Court dismissed the argument that the Court of Criminal Appeal was being asked to state an advisory opinion that did not affect the rights or liabilities of any person[183]. It was held that this Court would not enter upon abstract questions of law devoid of relevance to the rights or duties of a body or person and would not make a declaration of law divorced or disassociated from any attempt to administer the law[184]. However, the Court concluded that the proceedings in that case were not hypothetical; nor divorced from the ordinary administration of the law[185].
Here, the determination by the Full Court is likewise far from theoretical or hypothetical. It arises in the context of pending and as yet incomplete proceedings against the respondents upon criminal charges. Depending upon the answers which the Full Court might give to the questions reserved, the trial judge could be obliged to reconsider his earlier evidentiary ruling, including in the light of any further evidence that may be adduced at the trial by the prosecutor. The reservation and determination of questions provided by the State Act is specifically addressed to the conduct of the trial in which those questions have arisen. The arguments of the respondents on this issue are without merit and should be rejected.

The respondents argued that the application by the DPP to the Full Court, in purported reliance upon s 350 of the State Act as applied in federal jurisdiction by the JA, was not a "right of appeal" as envisaged by the DPP Act. This was because it related to a preliminary procedure for, as it was put, seeking permission of the Full Court to have a question reserved by way of a case stated by the trial judge. It did not become an "appeal" for application to the exercise of federal jurisdiction by means of the JA, including with the aid of the extended definition of "appeal" in s 2 of that Act. A case stated on an evidentiary ruling under the State Act was neither a "rehearing" nor a "review" for the purposes of the DPP Act, the latter words being concerned with a "rehearing" or "review" after the completion of a trial.
The DPP enjoyed the power: Clearly, there is a distinction between the issue of the powers of the DPP and the jurisdiction of the courts. It was a distinction explored in Byrnes[187]. The respondents sought, in effect, to repeat the success of Mr Byrnes. Earlier cases have involved like questions[188]. In order to invoke a given jurisdiction, imported by analogy into the exercise by a State court of federal jurisdiction, a federal office holder must be able to point to its own statutory authority affording the power to seek to exercise the jurisdiction invoked[189].
It is important to notice that, so far as the State Act is concerned, whilst it expressly provides certain rights of appeal in criminal cases to the Director of Public Prosecutions (being the State DPP)[190], in respect of the reservation of questions for the consideration and determination of the Full Court, the stated powers and duties are generally reposed in the courts themselves. The exception relates to the duty to reserve for consideration and determination by the Full Court a question arising in the course of a trial that results in an acquittal where the (State) Attorney-General or the (State) DPP apply to the court of trial to have such question reserved for the Full Court[191]. That provision was not engaged in the present case, the trial of the respondents not having resulted to this time in their acquittal. Accordingly, there is no express mention in the relevant provisions of the State Act of the person who may enliven the jurisdiction of the State court to reserve a "relevant question" for consideration and determination by the Full Court.
Because the State Act, in this respect, is not, in terms, limited to the exercise of the specified jurisdiction on the initiative of an identified State office-holder, it is a comparatively simple task to pick up the relevant provisions affording jurisdiction to the Full Court and to apply them in the context of the exercise of federal jurisdiction. At least, there is no relevant limitation (such as has occurred in earlier cases) requiring the substitution of a federal office-holder for a State office-holder named in the State law[192].
Assuming, however, that it is implicit in the provisions of the State Act (or explicit in the State court rules) that the Full Court will be moved (as it was) by a prosecutor or a defendant to reserve for its consideration and determination a "relevant question" prior to the empanelling of the jury and that, in the case of a federal prosecutor, he or she must be in a position to point to a relevant source of the power to invoke such jurisdiction of the Full Court, I see no difficulty in that respect. The enacted powers of the Commonwealth DPP extend to the exercise of "rights of appeal". In the DPP Act, they are very broadly defined. They include the right to apply for a "review" and to institute proceedings "in the nature of an appeal". The application which the Commonwealth DPP made to the Full Court to enliven that Court's own powers to reserve a "relevant question" and thereafter to advocate the determination that should be made falls within the "right of appeal" conferred by the DPP Act as it stood when the jurisdiction of the Full Court was invoked.

Contrary to its conclusion, the Full Court therefore had jurisdiction to require the reservation of any "relevant question" for its consideration and determination. It also had the power to determine the questions reserved and to make consequential orders and directions as contemplated by s 351A of the State Act. The JA, in accordance with the Constitution, invested the Full Court with "the like jurisdiction" with respect to persons charged with federal offences, as that Court would have under the State Act if the accused were charged with State offences. Moreover, the Commonwealth DPP had the power necessary to invoke the jurisdiction of the Full Court and to advocate before it the consideration and determination of the questions reserved.
Although the Commonwealth DPP asked for costs to be ordered against the respondents, no order for costs was made by the Full Court. As the appeal involves the exercise of criminal jurisdiction and raises issues of general importance for the powers of the Commonwealth DPP, I would make no order in respect of the costs of the appeal to this Court.
The orders proposed by Gleeson CJ should be made.
CALLINAN J. This appeal is concerned with the relationship between the Judiciary Act 1903 (Cth) ("the Federal Act") and the Criminal Law Consolidation Act 1935 (SA) ("the State Act"). Already the case has a long procedural history.
The respondents were jointly charged on information in South Australia by the Commonwealth Director of Public Prosecutions on 19 May 1998 with nine offences of defrauding the Commonwealth contrary to ss 29D and 5 of the Crimes Act 1914 (Cth), by deliberately understating their incomes for income tax purposes.
They were first arraigned, and pleaded not guilty in the District Court before Anderson DCJ on 19 May 1998. They have not subsequently been arraigned, and no jury has been empanelled.
The respondents in the meantime made a preliminary application to exclude evidence on the basis that it was unlawfully seized. This application was set down for hearing in the District Court before Anderson DCJ. It was authorized by the District Court Rules 1992 (SA) which allowed the making of an application relating to the admissibility of evidence "in the course of any criminal proceedings"[193]. It is convenient to note at this point s 285A of the State Act which provides as follows:

His Honour, on 21 May 1999 ruled that he should decline to exercise his discretion to allow the challenged evidence to be used at trial. It was, he held, illegally obtained and "is, and remains, inadmissible". If, as is the current position, the ruling stands, the respondents will argue that they are entitled to be acquitted.
The Director of Public Prosecutions then applied to the Full Court of the Supreme Court of South Australia for an order directing that Anderson DCJ reserve questions for consideration by the Full Court.
On 15 and 29 June 1999 the Full Court (Olsson and Mullighan JJ, Nyland J dissenting) (the "first Full Court") heard the application of the Director of Public Prosecutions. No argument as to the jurisdiction of the Supreme Court to entertain the application was then advanced.
The judgment of the majority was that Anderson DCJ reserve questions on a case stated[194].
On 10 September 1999, counsel for the respondents invited the Full Court to reconvene for the purposes of considering: first, the power of the Director of Public Prosecutions to bring the application; and, secondly, the Court's jurisdiction to hear and determine it.
On 10 and 11 November 1999, the respondents made application orally to the first Full Court for an order that it quash its original decision on the ground that it was made without jurisdiction, or that it re-open the matter to hear argument upon a number of different grounds. That Full Court refused the application.
On 14 December 1999 Anderson DCJ stated a case for the consideration of the Full Court of the Supreme Court of South Australia in compliance with the order of the first Full Court of 2 September 1999.
The respondents then unsuccessfully sought special leave from this Court to appeal against the decision of the first Full Court not to set aside its original decision, and further sought to argue the issue of the jurisdiction of the Full Court of South Australia to entertain the application under s 350(2) of the State Act.
On 18 May 2000 the Full Court of the Supreme Court of South Australia, constituted by Doyle CJ, Duggan and Lander JJ ("the second Full Court") sitting to consider the case stated by Anderson DCJ amended the order of the first Full Court requiring Anderson DCJ to state a case.
On 29 May 2000 Anderson DCJ stated a case for the consideration of the Full Court of the Supreme Court of South Australia in compliance with the order of the second Full Court (the "amended case stated").
The questions reserved came before the second Full Court which was reconstituted as a Court of five Justices (Doyle CJ, Prior, Duggan, Lander and Bleby JJ), because the issue of the jurisdiction of the Court to entertain the questions reserved involved a reconsideration of the Court's previous decision in Questions of Law Reserved on Acquittal (No 2 of 1993)[195].
The reconvened second Full Court by majority (Doyle CJ, Prior, Duggan and Lander JJ; Bleby J dissenting) held that the Court did not have jurisdiction to entertain the questions reserved[196]. It is against that decision that this appeal is brought. The majority held that the trial (in vested Federal jurisdiction) of the respondents had begun, but that the presence and effect of ss 72 to 77 of the Federal Act meant that the word "appeal" in s 68(2) of that Act could not embrace the reservation of questions of law under s 350(a1) of the State Act albeit that a Full Court proceeding under that section was exercising a jurisdiction of real substance.

"It is said that this provision operates to confer a Federal jurisdiction on the State Courts in relation to Federal offences coextensive with their State jurisdiction in relation to State offences and, thus, that, as the Supreme Court received under the Criminal Appeal Act 1912 of New South Wales the jurisdiction of a Court of Criminal Appeal over State offences, it automatically obtained the same jurisdiction over Federal offences. Section 39(2) does confer upon State Courts Federal jurisdiction coextensive with their State jurisdiction in respect of matters which are, or may be placed, within the original jurisdiction of this High Court: but something further appears to be required to make the State Criminal Appeal Act apply to Federal prosecutions. It has not, so far, been decided that s 39(2) can operate to increase or vary the subject matter of the jurisdiction. In the present instance, the subject matter is confined to appeals against convictions upon indictment preferred under State law. It may well be that s 39(2) cannot convert the jurisdiction over that subject matter into a Federal jurisdiction over a different subject matter, viz, appeals against convictions upon indictment preferred pursuant to s 69 of the [Federal Act]. But in any case we think we ought not to construe s 39(2) as operating to give by reference to State law another and different jurisdiction over the very same subject as the [Federal Act] itself specially provides for, viz, appeal from conviction. That s 39(2) was not intended to introduce such a jurisdiction by way of appeal is made clear by the presence in the Act of special provisions expressly conferring a right of appeal against such convictions, although a limited right of appeal. Sections 72 to 77 of the [Federal 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 trial. These special provisions confer a different and narrower right of appeal and different but perhaps wider remedies. We think that we ought not to construe the general words of s 39(2) as capable of importing a new jurisdiction by way of appeal from conviction upon indictment which, in effect, would supersede these provisions."

The second relevant matters are the convenience, economy and efficacy in this country of vested jurisdiction. It works well and has done so for almost one hundred years[206]. Notwithstanding the size and variety of statutory jurisdictions of the Federal Court, it has not had any general Federal criminal jurisdiction conferred on it.
Thirdly, it is no doubt desirable that so far as is practicable offenders against Federal laws be tried from State to State pursuant to generally uniform procedures. There is equally something to be said however for the proposition that all persons tried by a State court, whether they have offended against Federal or State law, should be tried according to the same procedures. Important safeguards and control mechanisms already exist. Section 80 of the Constitution ensures that Federal offenders charged on indictment be tried by jury, and the function of this Court as a general court of appeal, including in criminal matters, exists to ensure that the processes adopted are constitutional and otherwise lawfully conducted.
Fourthly, although the Federal Act contemplates the application of relevant, non-inconsistent State laws to trial procedures, it is important to keep in mind that State law can neither control the activities of Federal officials nor alter the meaning and operation of Federal law.
Fifthly, but as a general proposition only, fragmentation of trials should be avoided. The exception however, for which the State Act provides, is capable, in an appropriate case, of offering the advantages of savings in time and costs, and the smooth running of so much of the trial as is to take place before the jury. The procedure for reservation of a point of law is not a mandatory one. Furthermore, the State legislature, has, in any event enacted that such a procedure may be invoked in its jurisdiction.
Sixthly, s 68(2) of the Federal Act, to which I will come, is concerned with the application of "like jurisdiction". I take this to include any similar, and not necessarily identical jurisdiction.
Seventhly, there seems to have been an intentional abstention by the Federal legislature from detailed prescription for the conduct of criminal trials. Indeed, the Federal Court is expressly generally denied jurisdiction by s 39B(1) and following sub-sections of the Federal Act even to grant prerogative relief in respect of criminal proceedings proposed or pending in a State court. Neither the Crimes Act 1914 (Cth) nor the Evidence Act 1995 (Cth), in which such prescription if it were to be made could appropriately be made, contains it. In short, there is no apparent Federal legislative attempt to regulate the conduct of Federal trials, let alone to cover the field in respect of them.
Eighthly, and having regard to the matters I have discussed, I think it is right to approach the principal issue arising in this appeal, whether the Federal Act exhaustively defines the available appellate procedures, by immediately asking another, and I think more appropriate question, whether the State Act is relevantly inconsistent with the Federal Act. Before answering that question the statutory framework for its consideration should be set out.
"Appeal" is broadly defined by s 2 of the Federal Act:

The respondents, as did the Full Court, relied upon the description in Adams v Cleeve[208] by Rich, Dixon and Evatt JJ, of ss 72-77 of the Federal Act as a "code of procedure" and contended that those sections were exhaustive. This was the nub of the respondents' argument. They also pointed to the degree of overlap between ss 72-77 of the Federal Act and s 350(a1) of the State Act which was not confined in its operation to the sort of situation which exists here, of a preliminary ruling on a point of evidence. They emphasised that, notwithstanding Seaegg and the amendment to the Federal Act which followed, and the enactment of the various provisions in the States for general rights of appeal, ss 72-77 of the Federal Act have remained in force and have not been materially amended.
The appellant sought to explain any abstention from amending or repealing ss 72-77 on these bases: that the amendment to s 68(2) was a pragmatic response to Seaegg; that the provisions in the Federal Act with respect to appeals were left as minimum appeal rights; and ss 72-77 to continue to allow for a case to be stated directly from a State Supreme Court to the High Court[209]; and they make provision for a Justice of the High Court conducting a trial[210], or the trial judge of any other federal court with jurisdiction to hear indictable offences against the laws of the Commonwealth, to reserve questions of law for the consideration of the Full Court of the High Court.
The appellant submitted that the assimilation of Commonwealth and State criminal jurisdictions can only effectively be achieved if s 68(2) is given an ambulatory operation (which Doyle CJ in the second Full Court accepted the sub-section should have), so that the equivalent of any State jurisdiction which falls within the ordinary connotation of the word "appeal" is conferred on State courts hearing Commonwealth matters.
The appellant further submits that the procedure for which s 350(a1) of the State Act makes provision is different from the procedures prescribed by ss 72‑77 of the Federal Act: s 72 of that Act provides for the reservation of a question of law after verdict, and either before or after judgment on the application of the accused made before verdict, or, in the discretion of the trial judge at any time. In the case of a question reserved following a verdict of guilty, the procedure for a case stated operates as an appeal on a question of law[211]. It is only if a trial judge arrests judgment following a verdict of guilty that the trial judge will be required to state a case on the application of the prosecution. On the other hand a question cannot be reserved on an interlocutory question or issue before verdict pursuant to ss 72-77.
In my opinion, s 68(2) of the Federal Act does pick up and apply s 350(a1) of the State Act and those other sections of it providing the machinery for the reservation and determination of relevant points of law and the giving of such directions as may be necessary to a trial judge. This is so for two particular reasons: because of the amplitude of the words used in s 68(2) of the Federal Act: in particular, the words "with respect to", "arising out of any such trial …", "or out of any proceedings connected therewith" and the broad definition of "appeal" in s 2 which includes "any proceeding to review or call in question the … decision … of any Court or Judge"; and, because, as the appellant correctly submits, the respective procedures in the State Act and the Federal Act are different in some significant respects.
There is good reason why the Federal legislature may have left ss 72-77 of the Federal Act materially unchanged during and since the period that the States enacted separate and much more expansive provisions for rights of appeal, and indeed, provisions of the kind under consideration here in the State Act, designed to facilitate the more expeditious and convenient form of trial than that which may result from lengthy argument on major points of evidence after a jury is empanelled[212]. The presence of s 72-77 ensures that no matter how the States may legislate, and whatever procedures they may adopt, minimum, effectively guaranteed rights under those sections will remain.
Other points by way of contention and otherwise were raised by the respondents. One was that the trial in this case had not commenced, and that until it did, the Federal Act could have no operation to pick up any provision of the State Act. I would reject that argument. Director of Public Prosecutions, South Australia v B[213] does not assist the respondents. There, the question was whether the trial had begun at a stage when the prosecutor sought to enter a nolle prosequi, a stage before the arraignment and plea of the accused. In the joint judgment[214] it is expressly stated that the trial began on the arraignment of the accused[215]. In this case, the respondents had been arraigned before Anderson DCJ. Accordingly, the trial had begun.
Nothing here turns upon the partial overlap between the relevant provisions of the State Act and ss 72-77 of the Federal Act. There is room for the operation of both. The "field" is not covered by the Federal Act, and, to the extent that there is no inconsistency, the State Act may, and does have operation here.
The respondents sought to call in aid s 80 of the Constitution[216]. Their argument seems to be that because s 80 is mentioned in s 68(2) of the Federal Act, the reference in the latter to an appeal can only be to an appeal following a trial in which the jury has participated, presumably up to the stage of giving a verdict and not to a trial of, or a decision with respect to, some other issue or issues. The argument has no substance. Sub-section 68(2) of the Federal Act refers, for example, to a "decision" in criminal trials on matters of law before a judge, and these will ordinarily include points of evidence.
Another argument that was advanced by the respondents was that the procedure contemplated by the State Act involved the exercise of an advisory, that is to say, a non-judicial function incompatible with the exercise of the judicial power of the Commonwealth.
The question which was raised here was no more hypothetical than any other relevant question arising from time to time in the ordinary course of a criminal trial in relation to the admissibility of evidence. Even when the ruling on the question involves, as it often will, discretionary considerations, there will still usually be an underlying legal question, whether the grounds for an exercise of the discretion have been laid. Each point taken will require a trial judge to give a ruling, and to make a decision which is, subject to appellate review, or some other development in the trial, conclusive. The rulings that will be made may well vary in significance and importance. Whether they are decisions, as opposed to advisory or hypothetical opinions, does not depend upon their relative importance. Rulings on the admissibility of evidence are at least as closely connected with a trial as the matters the subject of the reference by the Attorney-General to the Court of Criminal Appeal in Mellifont v Attorney‑General (Q)[217].
The respondents mounted a last argument, that it was beyond the power of the appellant to invoke the jurisdiction of the South Australian Court to deal with the questions raised pursuant to s 350(a1) of the State Act. The appellant's powers if they exist, in this regard, must be found in ss 7, 8 and 9(8A) of the Director's Act, the last of which included the power "to apply for a review or rehearing" or "to institute a proceeding in the nature of an appeal"[218]. Once again these are words of amplitude. I do not doubt that the process for which the State Act makes provision is a proceeding in the nature of an appeal. It is not only that, but it is also, in my opinion, at least a proceeding to call in question a decision of a judge, that is to say, an appeal within the meaning of s 2 of the Federal Act. This is not a case in which there is any attempt by the holder of a federal office to exercise the powers of the holder of an office under State law[219].
The appeal should be upheld. I would not make any order for costs. The appeal was of particular relevance to the appellant and his office. The case should be remitted to the Full Court for further disposition.

The Queen v Gee

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