Whittaker v R [1928] HCA 28

Whittaker v R [1928] HCA 28 - HCA 1928 case summary — Zoe

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his version of the occurrence, or - what in legal effect would be the same thing - considered that there was reasonable doubt whether that was not the true version." Further on: "In passing sentence I accepted as an established fact everything which on my interpretation of the jury's verdict they had found as a fact, and dismissed from consideration everything which in my opinion they had negatived." (Italics are mine.) Now, it is this further passage that has present importance. The Court of Criminal Appeal found no justification for what they termed the " assumption " that there was no reasonable doubt that the prisoner's story was substantially true. They considered that if the jury had thought the prisoner's story, which was one of misadventure, was substantially true, the probability was the verdict would have been an acquittal. In short, the Court of Criminal Appeal held that there was no material before the learned trial Judge upon which he could reasonably draw the inference or arrive at the interpretation upon which he based his judgment. Therefore, held the Court of Criminal Appeal, he had proceeded upon "a wrong principle," and thereby laid the sentence open to review. Their Honors held in accordance with the law as laid down by four Justices of the Supreme Court in R. v. King (1) and R. v. Withers (2) (and in the latter case the Court said they still adhered to the former case), that, under the appeal section referred to, the Court was not justified in interfering with a sentence unless it is "not merely inadequate but manifestly so, because the learned Judge in imposing it either proceeded upon wrong principles or undervalued or overestimated some of the material features of the evidence" (3). Finding this condition satisfied, the Court of Criminal Appeal considered the matter for itself and thought that in the circumstances the sentence must be set aside and there must be substituted the graver sentence of penal servitude for five years. Now, against this the prisoner seeks to appeal on the ground that the Court of Criminal Appeal had placed a wrong interpretation on the report of Ferguson J., and that upon a correct interpretation of that report that learned Judge had not erred in principle; and, consequently, on the authority of the cases mentioned the Court's

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The verdict of the jury establishing the crime of manslaughter cannot be reduced to comparative innocence by a mere recommenda- tion to mercy. The jury did not state their reasons. Ferguson J. interpreted it by the light of the rival contentions. I agree that that is not a sufficient or a reliable test, and it leaves the mind of the jury on that subject still a mere matter of conjecture. What I think is a safer test, if there be any, is the Judge's charge to the jury. On his directions to them the law presumes they acted, and with reference to the accused's explanation the jury were directed, and properly directed, in these words: " Although you do not give it full credence, if you still think it may reasonably be true, you are not entitled to take some other version which should make him guilty." Iam forced to the view of Street O.J. that if the assumption made upon the basis of which the original sentence was passed were correct, the jury would probably have acquitted. Whatever weight might have been given to the recommendation otherwise, it was in this instance pressed beyond the limits of its proper function. The recommendation of a jury for leniency should always be treated with respect and careful attention. It is a recognized feature of our legal system. But a recommendation simpliciter is, after all, a recommendation only, and the Judge, on whom falls the sole responsibility of measuring the punishment within the limits assigned, must consider for himself how far it is consistent with the demands of justice that he should accede to the recommendation. But that is all. The Full Court was right, therefore, in regarding the original sentence as founded upon a mistake of principle, and the way was then clear to displace the sentence by its own. This it did, and since what the Full Court did was itself free from any mistake of principle or other vitiating element, its decision is unimpeachable. It cannot, consistently with what is termed by the Privy Council " sound practice," be revised by this Court, even though this Court has a general appellate jurisdiction; but it is essential to note that our inability to revise does not arise from want of jurisdiction, but from the consideration that, upon accepted

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Appellate Discretionary Jurisdiction - As to the suggestion of immunity, the problem is this : Is a decision of the Court of Criminal Appeal under sec. 5p always immune from review on appeal to this Court, assuming, of course, that the decision is within the jurisdiction of the Court of Criminal Appeal? In other words, is it immune from the fundamental considerations by which in all other cases the law surrounds a grant of discretion? Even under a War statute expressly conferring on a Court " absolute discretion," Lord Cozens- Hardy MLR. declined to say that there was no appeal, and Kennedy L.J. contented himself with holding that in the circumstances he had no discretion to exercise on appeal (Lyric Theatre London Ltd. v. L.T. Ltd. (1) ). Tn Morgan v. Morgan (2) Lord Penzance said: " A loose and unfettered discretion . . . isa dangerous weapon to entrust to any Court." If given at all, it must, in my opinion, be given in express terms. Here the Legislature has not used the phrase "absolute discretion," but simply the word " discretion" to vary the sentence (which necessarily means appellate jurisdiction), followed by the power to declare such sentence as to the Court "' may seem proper." Reference to decided cases, as, for instance, those cited by Lord Halsbury in Sharp v. Wakefield (3) will show that this section is practically in common form. It needs scarcely to be observed that so far as the jurisdiction of this Court is concerned, sec. 73 of the Constitution is sufficient warrant, provided only in compliance with legislative requirement by sec. 35 of the Judiciary Act, the special leave of this Court is obtained. The jurisdiction of this Court under sec. 73 is "'to hear and determine appeals from all judgments, decrees, orders, and sentences . . . of the Supreme Court of any State." It includes, therefore, all judgments, &c., whether based on law or facts or discretion, except so far as limited by Act of Parliament. There has been no exception as to "discretion." And further, Parliament has expressly said (Judiciary Act, sec. 39 (2) (c) ) that special leave to appeal may be granted,

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contrary. Sentences awarded under sec. 5p cannot exceed those provided by law. But, once that tacit limitation is admitted, literalness cannot be insisted on as a rigid principle. The door is opened to inquiry whether there is not also the implication that what is called by the Privy Council " sound practice " in relation to appeals from discretionary orders, is not also proper to observe. Being discretion all through, both primary and appellate, it follows that, granted jurisdiction, it must be " practice," rather than rigid principle, that is to be looked to for proper guidance. If there is a principle, it is that the practice should be observed. An instance is found in Brown v. Dean (1), where the House of Lords had to construe the words in a County Court Act, empowering a Judge to order a new trial "if he shall think just." In the Court of Appeal Fletcher Mouiton LJ. (see Dean v. Brown (2) ) sought to read these words in their naked literalness, as the suggested reading would do here. But the House of Lords said that the words " if he shall think just " meant if he shall think just according tc law, and that the rules ordinarily observed as to new trials he was bound to obey. So here, mutatis mutandis, and allowing for the case being referable to discretion, the same principle applies. In Crowther v. Elgood (3) Lopes L.J. said: " It is settled law that where a Judge has a discretion the Court of Appeal will not interfere with his decision unless the Judge has not exercised his discretion, or unless he has done so under a clear mistake." (Similarly by Cotton L.J. (4).) But the "expressions actually employed in sec. 5p are not at all infrequent; on the contrary, they are, as already stated, in common form, and they have been judicially interpreted. In Sharp v. Wakefield (5) the House of Lords had to consider the nature of the discretion vested in justices by an Act which empowered them to grant licences to such persons as they should, in the exercise of their " discretion," "deem fit and proper." It would be hard to get a more apposite instance. Lord Halsbury L.C. said (6) : - ' An extensive power is confided to the justices in their capacity to be exercised judicially ; and ' discretion ' means when it is said that something is to be done within the discretion of the authorities that that something is to

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private opinion: Rooke's Case (1); according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself : Wilson v. Rastall (2)." And then instances are given, which show (inter alia) that in exercise of the discretion each case must be considered on its individual merits, and that any pre-arranged rule for refusing relief would not be a valid exercise of discretion. For instance, it would be a failure to perform its judicial duty if this Court were to refuse leave to appeal on the ground that it is a bad policy to review decisions of any Court as to which the Constitution and the Federal Legislature have given to Australians the opportunity of appeal to this Court. Now, the case of Wilson v. Rastall was one in which Lord Kenyon used the expression " within the limits." to include the grant of a new trial because of a mistake made by a Judge at the trial on which the verdict proceeded, and the refusal where no error existed in the trial or other reason recognized by the practice of his predecessors. But it is not within the limits - in other words, it is not a judicial exercise of discretion - to do plain injustice. That is shown in a very recent case by the judgment in Kierson v. Joseph L. Thompson & Sons Ltd. (3); by the judgment of Atkin L.J. in Ritter v. Godfrey (4); by Bevington v. Perks and the Bell Assurance Society (5). Then, says Lord Halsbury in the passage quoted, discretion must be " according to law." Now, it has been laid down in various cases that discretion is not exercised according to law, if on a mere difference of opinion it is used by an appellate Court to reverse the judgment of a primary Court itself exercising discretion. That is to say, when so exercised it is not exercised in such a way as to preclude revision on appeal in accordance with established practice. For at this point we are concerned with whether this Court will as a rule of practice refrain from interfering with a discretionary order of the Supreme Court.

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The question being one of discretion throughout, and the appellate Court being called upon by a competent litigant to exercise its discretion, that Court applies its discretion in this way. If the "sound practice" resulting from centuries of legal procedure is observed, the appellate Court does not interfere - as a rule. But if that "sound practice " is not observed, it then proceeds to exercise the discretion it possesses. And it is beyond question a departure from sound practice for an appellate Court to proceed to apply its own discretion to the case, unless it examines the grounds on which the Court appealed from has made its discretionary order. If that order has been made in the proper exercise of judicial discretion, the Court of Appeal, for patent reasons, abstains from altering it

that is, as a rule. If, on the contrary, some defect, variously described in different judgments, but amounting to a vitiating circumstance, the Court of appeal does not hesitate to do justice in the matter according to its own opinion as far as it can weigh the circumstances. Two cases, both in 1917 and both decided by the highest authority, are excellent and converse illustrations. Oneis The Stanton (1). The President of the Admiralty Division had made a discretionary order in Prize. The Judicial Committee gave special leave to appeal. On the appeal the Privy Council, speaking by Lord Parker of Waddington, dismissed the appeal because their Lordships were not satisfied (2) "that in making the order appealed from the President either ignored any matter which he ought to have considered, or took into account any matter which he ought to have ignored. In other words, they are not satisfied that he did not exercise the discretion conferred upon him by the rules in a judicial manner and on proper grounds." Therefore, said Lord Parker, "it follows that this appeal must be dismissed with costs." It is necessary to remember that as a matter of jurisdiction their Lordships might have revised the decision, but the appeal " must" be dismissed only because the well-established rule I have referred to would otherwise have been infringed by the appellate Court. In the same year the Privy Council heard an appeal from the High Court of Bombay (Rehmat-un-Nissa Begam v. Price (3)). The case

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presented by the suggestion. As in the present case, the primary Judge in his discretion made an order - -in that case for dissolution of partnership. As here, the appellate Court in its discretion - discharged the order and substituted a different order - one reversing the decision appealed from. Again, as in this case, a further appeal was made to a superior appellate tribunal, in that case the Privy Council. It was objected - really pressing the very suggestion I am dealing with - that as the High Court of Bombay had exercised its discretion the Privy Council should not disturb its decision. But that was answered by Sir Lawrence Jenkins, speaking for a Board which included also Lord Buckmaster and Lord (then Sir Walter) Phillimore, in these words (1) : - '' The appellate Bench decided adversely to it (the appellant's claim), and it was urged in argument against interference with this decision, that it is opposed to sound practice for an appellate Court to substitute its diseretion for that of the Court from which an appeal has been preferred. The justice of this argument is undoubted, but it was at least as relevant before the appellate Bench as it is before this Board, and yet the appellate Bench did not hesitate to substitute its discretion for that of the original Court. . . . In these circumstances the real question is whether there was or is any justification for questioning or disturbing the discretion exercised by the original Court when it passed the decree. . . . It cannot be said that the Court acted capriciously or in disregard of any legal principle in the exercise of its discretion." The Board went on to say for themselves that there were elements in the case warranting the first Court's decision, and pointed out sufficient of them. In the result the appeal was allowed and the original decree restored, with some variations directed by the Board itself. It clearly appears, therefore, that merely to "substitute discretion" is simply to disregard the discretionary order of the primary Court, as if it had never been made, except, of course, as attracting the appeal. That is not "sound practice," in other words, not conducive to justice, and lays the appellate order, though in a sense made with jurisdiction, open to correction by a superior tribunal in the exercise of its own

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