Thompson, John Cranston v. Mastertouch T.V. Service Pty Ltd [1978] FCA 44

IN _THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION No. G61 of 1977

ON _ APPEAL FROM THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUTTE WALES DISTRICT REGISTRY'

SMITHERS J: In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Deane.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NCW SOUTH WALES DISTRICT REGISTRY

BETWEEN: JOHN CRANSTON THOMPSON Appellant AND: MASTERTOUCH T.V. SERVICE PTY LIMITED Respondent CORAM: Smithers, Riley and Deane JJ. 23 June 1978 REASONS FOR JUDGMENT RILEY J: In this matter I have had the advantage

of reading the judgment of Deane J. and am in agreement with it and the orders proposed, and there is nothing I wish

ecco ene a true cove f the -easons ir Judgment herein +s 2..3 Honour
|

ON APPEAL FROW THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUS WALES DISTRICT REGISTRY

DEANE J The respondent, Mastertouch T.V. Service Ply. Lamitod

was, on the information of the appellant who 1s an officer of the Trade Practices Commission, charged with an offence under

s.79 of the Trade Practices Act 1974-76. The charge was

heard by Franki J. 1n the exercise of the Court's original jurisdiction. His Honour found that the appellant had failed to prove the offence and dismissed the information with costs

The appellant purports to appeal, as of right, from the

At the commencoment of the hearing of the appcal, senior counsel for the respondent indicated that he wished to submit that the judgment and orders appealed from constituted a judgment of acquittal given in criminal proceedings in favour of the respondent from which the unsuccessful prosecutor lacked authority to institute, and this Court lacked jurisdict- 1on to hear, an appeal. Full argument was heard upon this question. Subsequent to the conclusion of that argument, the presiding Judge stated that we had reached the conclusion that the objection to jurisdiction was well based and that, in the circumstances, we did not wish to hear any further argument on the merits of the appeal. It was indicated that we would, in due course, publish our reasons for that conclusion and make whatever order was thought appropriate in relation to

The offence with which the respondent was charged before Franki J. was that, in contravention of the provisions

of s.59 of the Trade Practices Act, 1t had made a false

statement concerning the profitability o! a business activity which 1t had represented as being a business activity that could be carried on at a person's place of residence. 'The relevant false statement was alleged to be found in an advertisement which had appeared in the Canberra Times news- paper of 13 March 1976.-

provided that a person who contravened the provisions of, inter alia, s. 59 was "guilty of an offence punishable on

(a) in the case of a person not being a body corporate - by a fine not exceeding $10,000 or by imprisonment for a pericd not esceuting 6 months, or

(b) 1n the case of a person being a body corporate - by a fine not exceeding $50,000".

The provisions of this section were altered by the Trade

Practices Amendment Act 1977 by deleting the words in italics. The relevant amendment became effective on 1 July 1977 which was after the conclusion of the evidence but before judgment was delivered by the learned judge at first instance. Apart from the effect of such amendment, the provisions of s.79 remain in the form in which they cxisted at the time of the

The proceedings before the learned judge at first instance were criminal proccedings. They resulted in an acquittal of the respondent after a hearing on the merits The appellant seeks to have that acquittal set aside and to obtain orders convicting the respondent of the offence alleged against it and imposing an appropriate penalty. It 1s common

ground between the parties that this Court lacks jurisdiction to hear the appeal and the appellant lacks authority to institute it unless such jurisdiction and authority are conferred by

the general proyisions of s.24 of the Federa] Court of Australia

Act 1976 defining the Court's appellate jurisdiction. As an

aid to the construction of s.24, the appellant points to

other provisions of the Act, in particular, the definition of "judgment" contained in s.4 and certain of the provisions

The Federal Court of Australia Act established this

Court as a superior court of record with both original and appellate jurisdiction. The general appellate jurisdiction of the Court is defined by s.24 of the Act. Sub-seetions (1)

Aet, whether passed Lefore or after the comrenecvmen™

of this Aet (tneluding an Aet Ly virtue of vnlen anu

judgments referred to tn this seelton are radue finuc

and conclusive or rot subject to appedl), the Court z

(a) appeale from gudgrents of the Court eonstituted by a single Judge;

(b) appeals from judgrents of the Supreme Court of a Terrritory; and

(e) tin such cases us are provided iu any ot appeals from g~udgnents vf a eourt of a other than a FPult Court of the Supreme €

, (2) On or after the eornenetng day an apr cal shall not be brougnt te the High Vourt from a ,udermen! of the Supreme Court of a Terrttory excep

(a) in accordance wt special leave given bu tne High Court on or afte

(b) in accordance with Leave cor speci by the High Cour: or the Supreme the commencing day".

By s.4 of the Act, "judgment"! 1s defined as meaning "a judgment, decree or order, whether final or interlocutory,

or a sentence". * Section 28 of the Act provides inter alia

"28. (lL) Suvgjeet to any other Act, the Court may, in the exercise of tts appeliale jurisdtcticn -- (a) affirm, reverse or vary the judgment uppeuled

from; (e) set aside the verdiel and judyrent in a trtal

: on tndictment and order a verdiet or other apprepriate verdtet to ke entere

(f) grant a new trtal in any ecac has been a trial, cither with or wit jury, on any ground upon wht t to grant a new trial;

(1) in an appeal (whetner by the Crown or bh defendant) againat a sentence tn a orimtnal matter inelude the power to tnerease or Jevreuse the

In support of its submission that the appeal was not competent, the respondent sought to rely on what 1t claimed to be a well-established principle of the common law, namely, that there should be no appeal from a judgment of acquittal pro- nounced in criminal proceedings by a court of competent juris- diction after a hearing on the merits. It was submitted that the' alleged principle was fundamental to the administration of criminal justice and that legislation should only be construed as involving a departure from it if, and to the extent that, such a departure was the result of express and

Tyrone ((1905) XL Ir. L.R.T. 181), Palles C.B and Gibson J., by certiorari, quashed a conviction which had been entcred

and a fine which had been imposed at quarter sessions on an

appeal from justices who had dismissed the charge. The Chicf

Baron stated (ibid at p. 182) that it was "a broad principle

of common law" that "an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although crroneous 1n point of fact, cannot as a rule be questioned and brought before any other Court" and added that it was "settled principle" that "before you can appeal against an acquittal, the words

must be clear, express and free from any ambiguity" As

support for these general principles, Palles C.B. referred to comments to similar effect which had been made by Abbott C J.

in R. v. Tucker ((1824) 2D. & R. 434 at p. 440) and by

Coleridge C.J and Wills J. in The Queen v. The Keeper of the

Peace and Justices of the County of London (L.R. (1890) XXV

Q.B.D. 357 at pp. 360 and 362). The Chief Baron's statements of general principle were quoted with approval by Viscount

Simon L.C. in Benson v. Northern Ireland Road Transport Board

( [1942] A.C. 520 at pp. 526-7) 1n a speech with which the

three other members of the House of Lords who participated in the decision (Lord Atkin, Lord Wright and Lord Porter) expressed concurrence. The question involved in Benson's Case (supra),

was whether the Summary Jurisdiction and Criminal Justice Act

(Northern Ireland) 1935 conferred jurisdiction upon the Court of Appeal of Northern Ireland to reverse a decision of a court of summary jurisdiction dismissing a summons alleging an

offence under the Road and Railway Transport Act (Northern

Ireland) 1935 and ordering the complainant to pay a sum in respect of costs. Their Lordships held that it did not. In the course of his speech (ibid, at p. 526), Viscount Simon

L.C. referred to the principle that there should not ordinarily be any appeal from an acquittal made by a court of competent

jurisdiction as "an extremely important and universally accepted

principle of our law, and a principle which had bcen recognized again and again by the highest authorities both in England

and in Ireland". His Lordship concluded (ibid, p. 528), that "very clear statutory language would be needed to establish,

by way of exception to the general rule, a right of appeal

In cach of the above-mentioned four cases, the relevant acquittal had been on an information or complaint laid before justices. In R. v. Tucker (supra), Abbott C J. (with whom Bayley and Holroyd JJ. concurred) drew a distinction between the "dismissal of the complaint in consequence of a mistake of the law" and "a dismissal upon a hearing of the merits". Examination of the relevant facts indicates, however, that the justices, in that case, had in fact refused to embark upon the actual hearing of the case and 1t 1s clear that his Lordship's comments must be understood in that context. In Benson's Case (supra), the only 1ssue involved before the court of summary jurisdiction was essentially a question of law (ibid p. 522). It 1s apparent that any gencral principle recognized by the above cases applies in respect of judgments of acquittal pro- nounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounccd

after the verdict of a jury and regardicss of whether the

The 19th century English and Irish cases in which the general principle of no appeal from a judgment of acquittal

received recognition were cases arising from the proceedings of

inferior courts. This 1s explained by the fact that it was only 1n respect of the decisions of such courts that appelate procedures were ordinarily available at all in respect of criminal] proceedings. Writ of error could be brought by a convicted person "for notorious and substantial mistakes in

the judgment or other parts of the record" (Stephen, New

Commentaries on the Laws of England, (1863 Id ), Vol. 4,

p. 548). The 1848 Crown Cases Act had allowed the judge ur justices presiding in a criminal] trial to reserve any question of law for all the judges and barons, but only in the case

of a conviction. Otherwise there was ordinarily no appeal

in English courts from cither acquittal or conviction in a

criminal trial until 1907 when, by the Criminal Appeal Act

of that year, a right of appeal was given to persons convicted

There are some exccptions to the principle of no appeal from an acquittal to be found in nineteenth century cases in England and Ireland. Some of these cases involved recognition and acceptance by the courts of a lcgislative intent, clearly expressed in the relevant statute, that there should be an appeal from a judgment of acquittal (sec, e.g.,

Davys v. Douglas (1859) 4 H. & N. 180 at p. 184). Most of

them, however, involved spccial circumstances in that either the judgment of acquittal had been the result of an erroncous upholding of a demurrer by which the accused was taken to

have admitted the facts on which he should have been convicted

(The Queen v Houston (1841) IV Ir. L.R. 174 at p. 175) or the

judgment of acquittal had been given on a special verdict and

error was brought on the judgment pronounced on the special

verdict (The Queen v. Millis (1844) 10 Cl & Finn. 531 at p

536; The Queen v. Chadwick (1847) 11 Q B.R. (N.S.) 205). Some

other apparent exceptions to the general rule (see, c.g., R. v. Tucker, supra, and the comments of Lord Denman C.J. and

Coleridge J. in The Queen v. Wilson (1844) 6 Q.B.R. (N S.)

620 at pp. 627 and 629) are to be explained on the ground

that the judgment of acquittal had not been entered alter a hearing on the merits. Apart from any qualification which might need to be made as a result of such cases and putting

to one side the difficult question whether the Sovereign remained entitled to gain a new trial if error appeared on the face of the record and the acquittal had been obtained by "fraud or treachery", the principle that no appeal should lic from a judgment of acquittal pronounced in criminal procecding> by a court of competent jurisdiction after a hearing on the merits was, by the end of the nineteenth century, entrenched as a "well settled" and "elementary" (per Palles C.B., R. v.

Tyrone County Justices, supra) principle of the commcn law

and as a fact in the administration of criminal justice in England and Ireland. The principle is ordinarily stated in abstract terms without specific reference to the underijying common law right which 1t embodics. As a matter of convenience it 1s so stated, on a number of occasions, 1n the course of this judgment. It is, however, important that the statement

of the principle in that formmither conceals nor clouds that

it 1s, 1n essence, the statement of a common law right, namely, the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminai

charge to be spared the renewed jeopardy of an appeal against

The position in so far as colonial courts were concerned was not quite so clear. Except to the extent to which 1t had been renounced by statute or charter, the inherent prerogative of the Crown in Council to entertain an appca]j from colonial courts in any matter, whether civil or criminal and by whichever party to the proceedings the appeal was brought, persisted (A.G. for N.S.W. v. Bertrand (1867) L.R.

1P.c. 520, A.G. for Ceylon v. Kumarasinghege [1955] A.C.

200 at pp. 202-204). The residual power of the Sovereign in Council to grant leave to appeal in criminal matters was, however, even in the nineteenth century, only to be cxercised on "very rare' occasions (A G. for N S.W. v. Bertrand, supra, at p. 530). The existence of the power was of Jittle practical importance in the ordinary administration of criminal justice and there is no reported instance of leave being granted by

the Sovereign in Council to appeal from a judgment of acquittal pronounced by a court in any of the Australian Colonies after

a hearing on the merits other than where the original judyement had been of conviction and where the judgment of acquittal

had been entered by an appellate court in the course of an

appellate chain which the accused had himselt initiated.

The main departure from the principle of no appeal from a judgment of acquittal in the administration of criminal justice in the Australian Colonies and States 1s to be found in legislative provisions providing for the review of

decisions of justices. Thus, in Rider v. Freebody ((1898)

XXIV V.L.R. 429), the Full Court of the Supreme Court of Victoria held that an order to review an acquittal by a

Court of Petty Sessions or justice could be obtained by

a disappointed informant pursuant to the provisions of s.141 of the Justices Act (Vict.) 1890. Comparable legislative provisions providing for review of decisions of justices (including acquittal after a hearing on the merits) have been and remain not uncommon in the legislature of Australian States and Territories and have been accepted and recognized by Australian Courts (see, for example, Justices Act (Qld.)

1886, ss.209(1) and 222(1), Beer v. Toms, Ex P. Beer, [1952]

St. R. Qld. 116 at pp. 119ff and Schneider v. Curtis [1967] p.-

Qid. R. 300 at/306, Justices Act (Vict.) 1958, s.155(1) and

(4) and Day v. Hunter [1964] V.R. 845, Court of Petty

Sessions Ordinance (No 2) 1930 (F.C.T.), ss.207 and 208

and Davies v. Ryan (1933) 50 C L R. 379 at p. 382).

Upon the establishment of the Commonwealth of Australia, the Constitution itself introduced a further departure from the principle of no appeal from a judgment ol acquittal. Section 73 of the Constitution conferred upon the High Court "Jurisdiction, with such exceptions and subject to such regul- ations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences" of any Justice or Justices exercising the original jurisdiction of the High Court, of any other [cederal court or court cxer- c1lising federal jurisdiction and from the Supreme Court of any State from which at the establishment of the Commonwealth an

In Attorney General for New South Wales y. Jackson,

((1906) 3 C.L.R. 730) 1t was held by the High Court that the jurisdiction conferred upon 1t by s.73 of the Constitution clearly included jurisdiction to hear an appeal against a decision of the Supreme Court of New South Wales which had quashed a jury's verdict that the respondent was guilty of murder and which had discharged the respondent from custody. The High Court reversed the judgment of the Supreme Court and confirmed the conviction In one sense, the judgment of the Supreme Court on appeal which had discharged the respon- dent was a judgment of acquittal. On the other hand, the principle that there should be no appeal from a judgment of acquittal had been developed and expressed in cases in which the relevant acquittal had been at the initial trial and not by an appellate court in the course of an appellate chain initiated by a person convicted in the original criminal proceedings. There are obviously some grounds for arguing that the two categories of acquittal are, for present purposes, distinguishable. such a distinction has, in fact, been recognized in United States cases arising under the double

jgeopardy clause of the Fifth Amendment (sce U.S. v. Ball (1895)

163 U.S. 662 at pp 671-672). It was not until 1915 that

1t was expressly recognized by a majority of the High Court

in The King v. Snow ((1915) 20 C.L.R. 315) that the words

"all judgments" in s.73 of the Constitution included judgments of acquittal entered in the original court which heard the matter on the merits and whether or not so entered after the return of a verdict of not guilty by a jury. That case left

unresolved the question of the utility of the jurisdiction in

cases where the judgment of acquittal followed a jury's verdict of not guilty since it left unresolved the question whether the jurisdiction carried with 1t power to set the

Prior to the decisions in Jackson's Casc (supra) and Snow's Case (supra) the Parliament of the Commonwealth had, by the Judiciary Act 1903 (ss. 35 and 77), regulated the appellate jurisdiction of the High Court in criminal matters by providing that, generally speaking, such appeals lay only pursuant to special leave granted by the High Court itself. The result of this general limitation upon criminal appeals has been largely to minimize any undermining cffect which s.73 of the Constitution might otherwise have had upon the principle of no apfeal from a judgement of acquittal. Where issues of general importance have been involved, the High Court has been prepared to grant special leave to appeal notwithstanding the fact that the appeal was from a judgment of acquittal. Thus, for example, the High Court granted special leave to appeal against a judgment of acquittal

pronounced by the Commonwealth Industrial Court after a hearing

on the merits of an information under the Trade Practiecs, Act

1965-1969 in Strickland v. Rocla Concrete Pipes Limited ((1971)

124 C.L.R. 468) to permit a long-overdue re-examination of the scope of s.51(xx) of the Constitution The High Court, in considering applications for special leave to appeal, has, however itself recognized and accepted the principle and has treated

the fact that it 1s from a Judgment ol acquittal] that special

leave to appeal 1S being sought as constituting a considerat-

1on favouring the refusal of leave (see, for example, Grayndler v. Cunich (1939) 62 C.L R. 573 at pp. 58] and 602 and The

King v. Wilkes (1948) 77 C.L.R. 51] at p. 517). In the last-

mentioned case, the application was for special leave to appeal from a judgment of acquittal entered by the Full Court of the Supreme Court of South Australia in favour of the respondent who had successfully appealed to that Court against a gurv's verdict of guilty. Dixon C.J., with whose reasons McTiernan J. expressed concurrence (ibid, at p. 520), treated the matter

on the basis that 1t came within the ordinary principle that there should be no appeal from a judgment of acquittal and referred to the exceptional nature of the jurisdiction of the

High Court to hear such appeals. Has Honour said (ibid,

"An applreaticon for specral leave to appeal fron 2 judgment of acquittal ts a@ rare thing. Aecvording to the deciston of this Vovrt 17 Llowi Waileen, the terns of the Constitution are euffietent: : to enable us to entertain an appeal jrom a of acquittal. The judgment of aequrttal ease ts the judgment of the Supreme wrt as

. of ertminal appeal and is eontrary to the ve rotes

of the jury and not in aceerdanece urth the verdict of the jury. We would net, of course, go venind a verdtet of not guilty. In Secretary of State ~ #

Home Affatrs v. O'drven, the House cf bevds ter stracd

the Appellate Jurisa.cticn wct, L876 tn a wan ur len

tei ts not quite consistent with the interpretation whteh this Court placed upon s. 73 of the ConecritusT ™ This Court nevertheless has eontinued to uet unron that tnterpretaticn and has entertatred appi-vdi 'one

by the Crown for spevtal leave to appeal freon gudag-

ments of acquittal given by courle of ertm nal arpea We should, however, te eareful always tn €mes 2: the power which we have, remembering that 7L£ oa vot

tn accordance with the general prinerples of + .abean

taw to allow appeals from aequittals, and thal .t ta . eee . 1 ? . -

His Honour's remarks appear to indicate that, in his vicw, the

question whcther the High Court would ever interfere with a verdict of not guilty entered by a jury which had been

left unresolved in The King v. Snow (supra) had, for practical]

purposes, been resolved, by default, in the negative The references to Lloyd v. Wallach ((1915) 20 C.L.R. 299) and

Secretary of State for Home Affairs v. O'Brien [1923] A.C.

603. in lieu of references to The King v. Snow (supra) and

Benson v. Northern Ireland Road Transport Board (supra) were

appropriate in view of the possible distinction between a judgment (leading to a discharge from custody) obtained from

an appellate court in the course of an appellate chain instituted by a person who was initially convicted and a judgment of acquittal obtained from the court originally dealing with criminal proceedings. The words used by his Honour appear to

indicate an assimilation, in so far as principle 1s concerned,

Apart from the jurisdiction enjoyed by the High Court to grant special leave to appeal from a judgment of acquittal, and statutory provisions providing for revicw of the decisions of justices, the most significant departure, in the law of this country, from general recognition of the principle that an appeal should not lie Crom a judgment of

acquittal on the merits in criminal proceedings is to be

found in s.401(2) of the Tasmanian Criminal Code Act 1924

which provides that the Attorney General of that State may appeal to the Tasmanian Court of Criminal Appeal against an

acquittal on a question of law alone pursuant to leave granted

by that Court or upon certificate of the court of trial that

it 1s a fit case for appeal. The provisions of that section

have been regarded as anomalous both in Tasmania and elsewhcre

(Reg. v. Jenkins, [1970] Tas. S.R. 13 at p. 14, Peel v. The

Queen (1971) 125 C.L.R. 447 at p. 452ff.) and both the High Court and the Tasmanian Supreme Court have endorsed the yvicw that leave to appeal against an acquittal should only be granted under the Tasmanian Act when wider and decper questions are involved than the correctness of the individual verdict (see Vallance v. The Queen (1961) 108 C.L.R. 56 at pp. 62,

Court of Australia Act, the principle of no appeal against an

acquittal in criminal proceedings was subject to general exceptions in the case of appeals to the High Court and review of the decisions of justices and to the special exception 1n the case of Tasmania. It 1s not, in these circumstances, possible, in Australia, to accord to the principle of no appeal from a judgment of acquittal either the universality or the 'unchallenged and unchallengable" status which Viscount Simon L.C. accorded 1t 1n England (see Benson's Casc, supra, at p 526). The principle has however received judicial recognition in Australian courts, including the High Court, on many occasions and its validity as a "general" and "time-honoured" principle has never, so far as I am aware, been questioned by any Australian court. More important, apart from the brief period

between 1901 and the commencement of the Judiciary Act in

1903 in which, in any event, no Justices of the High Court

had been appointed and ignoring statutory provisions providing

for review of the decisions of justices, the effect in practice of the only legislative departures from the principle has

been to permit appeals from judgments of acquittal only pursuant to special leave or leave or subject to certificate from the court to which, or the court [rom which, the appeal lay. In the result, the legislative departures from the

principle have provided the occasion for its judicial vindicat-

In so far as the question presently under consider- ation 1S concerned, there 1s no basis for drawing any relevant distinction between the provisions of clause (a) and clause (b) of s.24(1) of the Federal Court of Australia Act. All of the courts referred to 1n those two clauses are superior courts. If. s.24(1) confers jurisdiction upon this Court to hear and determine, and authority upon the Crown or other disappointed prosecutor to institute and maintain, an appeal against a judgment of acquittal pronounced in criminal proceedings by the Federal Court constituted by a single judge, it conicrs like jurisdiction to hear and determine, and authority to institute, appeals from judgments of acquittal of the Supreme Courts of the Territories. If such jurisdiction is conferred, it would seemingly carry with 1t, in the light of s.28(1)(e) and (f), jurisdiction to set aside a jury's verdict of not guilty ina trial and enter a verdict of guilty. It could clearly be invoked as of right in circumstances where Dixon C.J. has indicated that, assuming the High Court possesses jurisdiction to go beyond a jury's verdict of not guilty, 1t

would never exercise it. Such a legislative departure from

the principle of no appeal from a judgment of acquittal pro- nounced by a court of competent jurisdiction after a hearing of criminal proccedings on the merits would be without pre- cedent in this country or England (note, however, the provisions

of the Indian Code of Criminal Procedure 1898, s.417 referred

to in Kishan Singh v. The King-Lmperor (1928) L.R. LV Ind. App. 390 at p. 394). The etfect of such a departure would be

that double jeopardy was at the whim of a disgruntled pro- secutor even after acquittal 1n a trial on the merits ina superior court To recognize how drastic such a departure

from a time-honoured principle of the common law would he 1s not to question the legislative competence of the Australian Parliament to enact provisions having that effect. Such recognition does, however, indicate the need to examine the relevant provisions with care before concluding that the legislative intent properly to be found within them is that the

It 1s a weljJ-established principle of construction that a Statute 1s not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless 1t uses words that point clearly and unambiguously to that conclusion. This principle has been recognized in many cases including cases in the High

Court of Australia (see, for example, Potter v. Minahan (1908)

7 C.L.R. 277 at p 304; Bishop v. Cheung Bros. (1907) 4 C L.R

1262 at pp. 1273-4, The Commonwealth and the Postmaster

General v. The Progress Advertising and Press Agency Co. Pty

Ltd. (1910) 1OC LR. 457 at p 464, Wall v The King, Lx

P. King Won (1927) 39 C L.R. 245 at pp. 250 and 253, Melbourne

Corporation v. Barry (1922) 31 C.L.R. 174 at p. 206, and see,

generally, Maxwell on Interpretation ot Statutes, 12th dition,

As a matter of strict language, the words of s.24 do not, in terms, confer a right of appeal upon anyone They define the jurisdiction of the Court to hear and determine appeals without, in terms, dealing with the right to institute an appeal. It is, however, clear that a provision conferring jurisdiction to hear and determine appeals can be appropriate to confer upon the persons whose appeals the court has jur?s- - diction to hear and determine, the right to institute them

(Peel v. The Queen (197]) 125 C.L.R. 447 at pp. 453, 456,

460, 462 and 467). There are many instances where the grant

of jurisdiction has been regarded as carrying with 1t authority to invoke the jurisdiction conferred Section 73 of the Constitution 1S one example. AS Menzies J. pointed out in

Peel v. The Queen (supra at p. 456), s.75 of the Constitution

1s another. The provisions of s.24(1)(c) of the Act indicate that, in so far as appeals from State courts excreising federal jurisdiction are concerned, one will need to look to the content of the other legislation to determine the appellate jurisdiction of this Court. By cantrast, the provmions of clauses (a)

and (b) confer jurisdiction without reference to the content

of other legislation. In the case of the jurisdiction conferred by these two sub-clauses, the grant of jurisdiction was clearly intended to be eomplete in itself and should be construed as

carrying with it authority to invoke the jurisdiction conferred.

A contrary view would render the substantive provisions of s.24(1)(a) and (b) sterile since 11 would mean that they gave a jurisdiction which could not be exercised because no

one could invoke it (see per Gibbs J. Pecl v. The Quecn,

supra at p. 447). If s.24(1)(a) and (b) confer jurisdiction

to hear and determine appeals [rom judgments of acquittal,

they would confer upon the Crown authority to institute such appeals. It does not necessarily follow that they would, in that event, confer such authority on an unsuccessful prosecutor other than the Crown (Such as the appellant). Reference will subsequently be made to that question. For the present, I

The jurisdiction encompassed in the provisions of s.24(1)(a) and (b) includes jurisdiction to hear an appeal from a conviction 1n criminal proceedings. So much at teast is apparent from the words used in s.28(1)(e). There 15 nothing surprising in that however. Such appeals have become (whether pursuant to leave or as of right) recognized as ordinary ineidents of the administration of criminal justice. It would seem, in the light of the definition of "judgrent" and the words used in s.28(5), thut s 24(1)(a) and (b) confer jurisdiction to hear and determine, and authority upon the Crown to institute, appeals by the Crown against sentence. That question does not arise for determination in the present matter. If the sub-section does confer such jurisdiction and authority, 1t will depart from a principle of criminal admin- istration which, although recently referred to by the Chicf

Justice of Australia as "time honoured" (Peel v. The Queen,

supra at p. 452), has already commonly been disregarded in criminal legislation in Australia In any event, the words indicating that the jurisdiction conferred includes jurisdict- - 1on to hear appeals by the Crown against sentence are clear

It was submitted, on behalf of the appellant, that s.28(1)(e) of the Act, in stating that the Court may, in its appellate jurisdiction, "set aside the verdict and judgment in a trial by indictment and order a verdict of not guilty or other appropriate verdict to be entered", provides a clear indication that the appellate jurisdiction conferred upon the Court includes jurisdiction to hear appeals from acquittals. The words "or other appropriate verdict" must, 1t was argued, be construed as including a verdict of guilty in substitution for a verdict of not guilty 1f they are to have any real content. In my view, this is not so. The words "or other appropriate verdict" have a useful function to perform regardless of whether they include a verdict of guilty in substitution for a verdict of not guilty. They would, for example, bc of utility where the Court, 1n an appeal from a conviction, reached the conclusion that the conviction should be set aside for the reason that the evidence compelled a verdict of not guilty on the grounds of mental illness or that a pre- liminary plea of autrefo1is acquit or convict had been wronply overruled or the conclusion that a verdict of guilty of a lesser offence should be substituted for a verdict of guilty of a more serious offence. In any event, s.28(1)(e) 18 cleurly

based on the provisions of s.73(b) of the Judiciary Act 1903

which were, in turn, based on the provisions of s 669 of

the Queensland Criminal Code (Schedule I to the Criminal

Code Act 1899). In neither the Judiciary Act nor the

Queensland Criminal Code did the words "set aside the verdict

and judgment", in their context, include setting aside a verdict of not guilty or a judgment of acquittal. In neithcr, did the words "or other appropriate verdict" include a verdict of "guilty" in substitution for a verdict of "not

In the result, little assistance is to be derived, in construing s.24(1), from the provisions of s.28(1)(e). Nor, in my view, upon ultimate analysis, do either the decisions of the High Court upon the effect of s.73 of the Constitution

or the decision of the Iligh Court in Peel v. The Qucen (supra)

on the effect of s.68 of the Judiciary Act 1903-1932 provide any real assistance in the construction of s.24(1) of the

, Section 73 of the Constitution defines the outer limits of the appellate jurisdiction of the Iligh Court The construction of that section involves the construction of provisions defining the amplitude of the ordinary constitutional

power of the Commonwealth (see Wall v. The King, Ex pking

Won, supra, at pp. 253 and 251). Within those limits, the Constitution expressly recognizes that there can be legislative regulation and exception. The ordinary principles of construct- ion applicable to such constitutional provisions require that

the words used be given their full scope and effect. In

contrast, the provisions of s.24 lack the constitutional

status of the provisions of s.73 and are quite different in character. The principles of construction applicable tao provisions conferring constitutional power upon an organ

of national government are not applicable to them. Moreover, the word "all" which appears bcfore the words "judgments, decrees, orders and sentences" and emphasises the unrestricted nature of the jurisdiction conferred by s 73 finds no corresponding place in the provisions of s.24. Plainly, decisions on the scope of the jurisdiction conferred by s 73

of the Constitution cannot be regarded as necessarily relevant

As I read the judgments of those members of the High

Court who constituted the majority in Peel v. The Queen

(supra), their Honours accepted the proposition which had

found favour with Rich J., Starke J., and Dixon J ain Williams

v. The King (No. 2) (1934) 50 C.L.R. 551 at pp 558 and 560)

that the general policy to be found in the statutory provision under consideration (Judiciary Act 1903-1932, s.68) was that criminal procedure (including remedies hy way of appeal) and the administration of the criminal law should be uniform in any given State although some of the offences are created by federal legislation and others exist under State law. That policy itself, if accepted, supported the conclusion of the majority Justices that the statutory provisions involved should be construed as conferring upon the Attorney General of the Commonwealth the right to appeal to the New South Wales Court of Criminal Appeal against a sentence imposed by a New South

Wales court of quarter session for an offence against a law

of the Commonwealth in circumstances where such an appeal would lie at the instance of the State Attorney General from a sentence imposed for an offence against a Jaw of the State. There 1s nothing in the judgments of the majority Justices

to indicate disagreement with the conclusion of Barwick C J that, tn the absence of acceptance of such a general policy underlying the provisions under consideration, the fact that the wider interpretation of the relevant words would confer upon the Commonwealth Attorney General the right to apply for a certificate or leave to appeal to the Tasmanian Supreme Court from a judgment of acquittal was itself a consideration weighing against such a wider interpretation. In so far

as the resolution of the present matter 1s concerned, the judgment of Barwick C.J 1s, in my respectful view, of more

The words of s.24(1)(a) and (b) are in completely general terms. Plainly, they need to be subjected to some limitation. The general grant of jurisdiction to hear and determine appeals from the courts specified in the sub-clauses is only meaningful in the context of established principles relating to the nature of an appeal, the circumstances in which an appeal should ordinarily lie and the locus o! a person to institute an appeal. The provisions clearly do not, lor example, confer either jurisdiction on this Court to set aside a decision on its own motion or authority on a complete stranger to litigation to institute an appeal from a decision. The essential question is whether, 1n that context, the grant o.

jurisdiction contained in the general words of s.24(1)(a) and

(b) should be construed as encompassing jurisdiction to hear and determine appeals brought as of right upon judgments ol acquittal pronounced by superior courts in circumstances where 1t 1S a well-established and fundamental principle of the common law that no such appeal should ordinarily lic. The conclusion which I have reached 1s that, on their proper con- struction, the provisions of s.24(1)(a) and (b) do not confer

jurisdiction to hear, or authority to institute, such appeals.

An appeal, as of right, from a judgment of acquittal pronounced by a superior court 1s not a recognized part of the appellate process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. There 1s no relevant Jegislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. As has been mentioned, 1t 1s a well-cstablished principle of statutory interpretation that a statute 1s not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless 1t uses words that point clearly and unambiguously to that conclusion. Applying that principle of construction to the present casc,

I consider that the conclusion 1s unavoidable that the general words used in s.24(1)(a) and (b) to confer jurisdiction "to

hear and determine appeals" do not confer jurisdiction to

hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke 1t would be contrary to a fundamental principle relating to the circumstances in

which an appeal should exist. The right of the subject which

finds expression in that principle, namely, the right to he spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, 1s not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all

, to that effect as having been either contemplated or

The considerations relevant to the determination of the present matter are, in my view, essentially the same as those recognized in the following extract from the judgment of Knox C.J., Gavin Duffy, Powers, Rich and Starke JJ in

Wall v. The King, Ex _p. King Won, supra, at p. 250

previous authoritics are eitted and cxamined, ectab-

• 7x

lishes the proposttton that, aceording to w England, no appeal lies from an order cf a conpetent Court for the tssue of a writ of hapeas corpus discharging a prisoner from gustody unless an anpe ts specifically given by the Legislature, and that the Courts should not hold that sueh an appe given merely because of general vords in thetnr natural meaning suffietent for suen a purp

By virtue of the Supreme Court Ordinance Le amended by Ordinanee No. LO of t4¥82, appeal from the Supreme Court of tre Worthern Werritory to this Court will lte by leave of this Court fron any conviction, sentence, judgrent, decree or order of the Supreme Court of the Werthern Territory, wnetner tn Chambers or tn Court, tneluding ale any refusal of such Judge to make any order (Porter v. Ine t~a.d). Applying to the present case the rule lard down cy the House of Lords, we think we ure bound to say,

an enactment couched in terms so general does not avatl to deprive the subfeet of an anetent and untversally recountzcd constituttonal right".

(See also, per Isaacs J., ibid at p 253). The common law principle and the common law right under consideration in

the present matter are at least as well established 1n Australia as the principle and right in question in that case. Indeed, as has been seen, Dixon C.J., seemed to assimilate the two principles to some extent when, in The King v. Wilkes

(supra), he treated Lloyd v. Wallach (supra) and O'Brien's

Case (supra) as being in point to the principle of no appeal from a judgment of acquittal. The words of s.24 of the Federal

Court of Australia Act are every bit as general and lacking

in express reference as the words of s.21 of the Supreme Court Ordinance (1911-1923) (N.T.) there under consideration. The decision of the High Court in that case clearly supports the conclusion that the general words of s.24 of the Federal Court of Australia Act confer neither jurisdiction upon this Court to hear nor authority upon the appellant to institute this

I have already mentioned that, even 1f the provisions of $.24(1)(a) were properly to be construed as conferring jurisdiction to hear and determine an appeal in a matter such as the present, it would not necessarily follow that the appellant was entitled to institute or maintain the present appeal. There is long-established authority for the proposit- 1on that an unsuccessful prosecutor (other than the Crown) in criminal proceedings should not be regarded as "a person aggrieved by the outcome" with locus to institute an appeal. The standards of the common law are not the standards of the

lex taltonts. An unsuccessful prosecutor may be annoyed at

failing to obtain a conyiction for what he thought was a breach of the law. He is not however to be regarded as "aggrievced' because someone is held not to have done wrong and to be not liable to punishment (R. v. London County Justices (supra) at

p. 361, Benson v. Northern Ireland Road Transport Board,

supra, at p. 527; Ex p. Kirkpatrick (19]6) 16S R. (NS.W.)

541 at pp. 547 and 553). Indeed, in the United States, there has been a tendency to see the overall common law principle of no appeal from an acquittal in terms of the absence of locus in the State or other unsuccessful prosecutor to bring such an appeal (see, e.g., U.S. v Sanges (1891) 144 U.S.

310 at p. 312ff.). In Strickland v. Rocla Concrete Pipes Ltd

(supra) special leave to appeal was granted by the High Court

to an unsuccessful informant. Express reference was not however made, in that case, to the question whether the unsuccessful prosecutor in the court below had locus to apply for such

leave or to prosecute the appeal. It is, in the circumstances, unnecessary that I form or express any concluded view on the question whether, if s.24(1)(a) had conferred jurisdiction on the Court to hear an appeal from a judgment of acquittal in a matter such as the present, the appellant would have had stand-~

It was not submitted on behalf of the appellant that, 1f the Court otherwise lacked jurisdiction to hear and determine the appeal, the position was altered by reason of the order for costs which Franki J. made. In adopting this approach, the appellant wa's, 1n the view I take, correct. In that

regard, the views expressed by Cullen C.J. 1n Ex p. Kirkpatrick

(supra at pp. 549-50) are to be preferred to those of the

majority 1n that case (Grayndler v. Cunich, supra, at pp 580-1,

582, 584, 601 and Benson's Case, supra, at p. 525).

In the result, the appeal is incompetent and should be dismissed as such. The appellant should be ordered to pay

the respondent's costs (Federal Court of Australia Act 1976

I certify that this and the dairty AGA preceding pages are a true copy of the Reasons for Judgment herein of his Honour