Williams v R (No 1) [1933] HCA 54

High Court of Australia|1933-07-01|Before: Tiernan JJ

ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF NEW SOUTH WALES.

H.C. or A, Criminal Law - Appeal - Indictable offence against law of Commonwealth - 1933. State Court - Appeal against sentence by State Attorney-General to State

- Competency - Commission from the Crown in right of the Commonwea

SypNEy, Judiciary Act 1903-1932 (No. 6 of 1903 - No. 60 of 1932), secs. 68 (1), (2)*, 69 Aug. 2 - Criminal Appeal Act 1912-1924 (N.S.W.) (No. 16 of 1912 - No. 10 of 192

Nov. 14, sec. 5D* arr Da 'The Attomey-General of New South Wales is not entitled to appeal to t MeTiernan JJ. Court of Criminal Appeal of that State under sec. 5p of the Criminal Ay

a law of the Commonwealth: He does not derive such a right either sec. 68 of the Judiciary Act 1903-1932 or from a commission under of that Act appointing him to prosecute in his name indictable offences the laws of the Commonwealth triable in New South Wales.

Decision of the Court of Criminal Appeal of New South Wales reversed

The Judiciary Act 1903-1932 pro- therewith . . . shall, subject to vides : - By sec. 68 : - "(1) The laws of _ section, apply and ke applied so each State respecting the arrest and they are applicable to persons who ar custody of offenders or persons charged - _charged with offences against the with offences, and the procedure for - of the Commonwealth committed: (a) theirsummary conviction ; (b) their that State, or whose trial for examination and commitment for trial committed elsewhere may la on indictment ; (c) their trial and con- held therein. (2) The several viction on indictment; and (d) the a State exercising jurisdiction hearing and determination of appeals respect to - (a) the summary co arising out of any such trial or convic- tion ; or (b) the examination and ¢ tion or out of any proceedings connected mitment for trial on indictmen!

tate of New South Wales, upon an indictment, with making counter- feit coins, and with having in his possession without lawful authority

indictment was in the following form: "Cecil Edward His Majesty's Solicitor-General for the State of New South les, who by virtue of an appointment made to him for such prosecutes for His Majesty . at Sydney in the State said . . . charges," &c.

illiams pleaded guilty and was sentenced on each of three charges imprisonment with hard labour for eighteen months, concurrent. appeal was, under the purported combined authority of sec. 5p the Criminal Appeal Act 1912-1924 (N.S.W.), sec. 68 of the

w South Wales against the sentences thus pronounced, on the round that they were inadequate. The Attorney-General of New

| offences against the laws of the and with respect to the hearing determination of appeals arising 'of any such trial or conviction or of any proceedings connected there- th, shall have the like jurisdiction respect to persons who are charged offences against the laws of the monwealth committed within the te, or who may lawfully be tried hin the State for offences committed ." By sec. 69: - "(1) In-

¢ offences against the laws of the wealth shall be prosecuted by fart in the name of the 'Attomey-

Wales and the Solicitor-General of that State were, on 5th y 1932 and 8th January 1923, respectively, under secs. 69 and the Judiciary Act 1903, appointed by the Governor-General secute by indictment in their names indictable offences the laws of the Commonwealth triable within New South

such other person as the Governor General appoints in that behalf. (2) Any such appointment shall be by commission in the King's name, and may extend to the whole Common- wealth or to any State or part of the Commonwealth."

'The Criminal Appeal Act 1912-1924 (N.S.W.) provides, by sec. 5p: "The Attomey-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper."

he applicant, Harold Roy Williams, was, on 23rd February 1933, Wr1ams ged at the Court of Quarter Sessions, Sydney, a Court of the par'kaxa

Wales as fully and effectually to all intents and purposes as the Attorney-General of the Commonwealth could do, and they were - given and granted all the powers and authorities of the Attorney- General of the Commonwealth in relation to those offences as were capable of being granted by the commission, including the power when any person was under commitment upon a charge of any such - offence to decline to proceed further in the prosecution. The Cou

substituted a sentence of imprisonment with hard labour for five years.

Williams now applied for special leave to appeal to the Hig! from the decision of the Court of Criminal Appeal.

Windeyer K.C. (with him Kinkead and Wesche), for the applicant The Court of Criminal Appeal of New South Wales had no jurisdic.

68 and 69 of the Judiciary Act 1903-1932, to entertain an appe brought by the Attorney-General of the State on the ground of inadequacy of the sentence awarded for an offence against a law of the Commonwealth. The question is not one of procedure. A delegated power to prosecute does not confer also a power to appeal. The Com- monwealth Attorney-General has no power to delegate a right appeal. The Judiciary Act confers jurisdiction on the Court of Criminal. Appeal to hear appeals in respect of offences against a law of the Commonwealth only in cases where such appeals are properly instituted, that is, by the Attorney-General of the Commonwealth, and not, as here, by the Attorney-General of the State. The Co rt will not assume that the State Attorney-General acted as agent for the Attomey-General of the Commonwealth. Although sec. 68 of the Judiciary Act 1903-1932 confers jurisdiction upon State Co ; to hear appeals, it does not confer upon the Attorney-General tight of appeal which previously did not exist. (Evarr J. referred to Whittaker v. The King (1)-] A prosecution is complete immediately the sentence is pronounced The commission to the State Attorney-General contemplates ce in.

lation. The commission was granted in July 1932; sec. 68 of fudiciary Act 1903-1932 was not enacted until December 1932. follows that, as the commission was granted at a time when there snot any right of appeal, there was not any intention at that time f conferring or delegating a power to appeal.

Crawford, for the respondent. Sec. 68 (1) of the Judiciary Act 03-1932 is more than a procedure section, as, in addition to cribing procedure, it confers substantive rights. The word 'appeals " in sub-sec. (1) (d) of that section must be given its plain i It should be construed, not as referring only to appeals by prisoners, but as referring to appeals as known to the law which to be applied, e.g., as here, the Criminal Appeal Act 1912-1924 of New South Wales. The words of sub-sec. (1) (d) bring into operation the whole of the provisions, including sec. 5p, of the iminal Appeal Act relating to appeals by persons convicted in a State Court of offences against laws of the Commonwealth, and they Jo not impose any limit as to who may appeal. It was the intention of the Federal Legislature to apply within each State the existing nd well-tried laws of that State, and it must be assumed that the Legislature was cognizant of the law in New South Wales (Seaegg . The King (1)). The appeal was properly instituted by the State Attorney-General under powers conferred upon him by secs. 68 and 69 of the Judiciary Act 1903-1932 and sec. 5p of the Criminal Appeal Act 1912-1924 (N.S.W.). A prosecution does not terminate pon conviction and passing of sentence. The right to appeal is art of the law. The matter of the inadequacy of the sentence arded was brought under the notice of the Attorney-General of 1¢ Commonwealth, who thereupon authorized the instituting of an appeal, which was signed by the State Attorney-General. The elegation in the commission of the power to prosecute is the delega- tion of a power to deal with the matter until it is completed, that s, from the inception of the prosecution until the determination of ny appeal arising therefrom.

rs and no more ; those powers cannot be increased by subsequent H- ©. or A.

Windeyer K.C., in reply. The right of the Crown to appeal e

other State. That position could not have been intended by the Federal Legislature.

The following written judgments were delivered : - .

Srarxe J. The prisoner, Harold Roy Williams, was charged on three counts upon indictment with making counterfeit coin, an with having in his possession without lawful authority or excus coining instruments, contrary to the provisions of the Crimes lo 1914-1932 of the Commonwealth of Australia. He pleaded guilt and was sentenced to imprisonment with hard labour for eight months on each count, concurrent. An appeal was then taker r the name of His Majesty's Attorney-General in and for the State New South Wales to the Court of Criminal Appeal in New & Wales against the sentences so pronounced, on the ground that were inadequate. The Court of Criminal Appeal substitut sentence of imprisonment with hard labour for five years. this sentence of the Court of Criminal Appeal the prisoner now s special leave to appeal, on the ground that the appeal to the Ct of Criminal Appeal was incompetent.

The Judiciary Act, sec. 69, provides that indictable offences the laws of the Commonwealth shall be prosecuted by indictment the name of the Attorney-General of the Commonwealth or of other person as the Governor-General appoints in that behalf. the Attorney-General and the Solicitor-General of New South Wa have been appointed by the Governor-General to prosecute b indictment in their names indictable offences against the laws the Commonwealth. The appointments are by commission in th name of His Majesty, signed by the Governor-General, and, so as material, are in the following form: '" Now therefore we appoint you to prosecute by indictment in your name indicts offences against the laws of the Commonwealth triable within

and purposes as our Attorney-General of our Commonwealth of tralia could prosecute those offences: and we give and grant 'ou all such powers and authorities of our said Attorney-General relation to those offences as are capable of being granted by this commission ; including the power, when any person is under commit- ment upon a charge of any such offence, to decline to proceed further in the prosecution, and, if the person is in custody, by warrant under your hand to direct the discharge of the person from custody: Provided that nothing herein contained shall be construed to affect power of our Attorney-General of our Commonwealth of Australia any other person appointed by us in that behalf to prosecute indictment in his name any indictable offence against the laws the Commonwealth triable within our said State: and we e that this our commission shall continue in force so long as hold the office of [Attorney-General or] Solicitor-General for

eneral for the State of New South Wales who by virtue of an ppointment made to him for such purpose prosecutes for His lajesty in this behalf being present in the Court of Quarter Sessions it Sydney in the State aforesaid . . . charges," &c. Some tion was made that such an indictment was bad because it id not allege or disclose that the indictment was in the name of a on appointed by the Governor-General in that behalf, and might efer to an appointment under sec. 572 of the Crimes Act 1900 of South Wales. But the commission to the Attorney-General the Solicitor-General enables them to prosecute in their names. in, where acts done are of an official nature or require the ence of official persons, the presumption is that they are itly done unless the contrary is shown. Further, after a plea of guilty, and sentence, such an objection could not well be sustained. could it be allowed, in the face of the provisions of the Judiciary sec. 68, coupled with the Crimes Act 1900 of New South Wales, . 360 and 362.

e of New South Wales, as fully and effectually to all intents H.C. or A.

The learned counsel for the prisoner were on firmer ground in contending that an appeal did not lie on the part of the Crown against a sentence for an offence against a Federal law, or, at all events, that such an appeal could not be prosecuted in the name of the Attorney-General of the State. The argument depends upon the effect of sec. 5p of the Criminal Appeal Act 1912 of New South Wales, and the Judiciary Act 1903-1932. By sec. 5p of the Criminal Appeal Act, the Attorney-General may appeal to the Court. of Criminal Appeal against any sentence pronounced by the Suprem Court or any Court of Quarter Sessions, and the Court of Crim Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper. But Seaegg's Oa (1) in this Court makes it clear that this section would not authorize an appeal by the Attorney-General of the State against a sentence pronounced in respect of an offence against the laws of the Common- wealth. The Judiciary Act, sec. 68, has been amended since th t decision (see Act 1932, No. 60), and it now provides : - " (1) The laws of each State respecting the arrest and custody of offenders or

and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected there-

elsewhere may lawfully be held therein. (2) The several Courts of a State exercising jurisdiction with respect to - (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; - of offenders or persons charged with offences against the laws of the State, and with respect to the hearing and determination of app arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the

Federal offences a similar right of appeal to that existing in respect of offences against State law. In some of the States, as the learned counsel for the prisoner pointed out, no such right of appeal is given, but in New South Wales, as we have seen, the Attorney-General of the State may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter essions. Having regard, however, to the reasoning in Seaegg's Case 1), this section, even when coupled with the Judiciary Act, sec. 68, gives the Attorney-General of the State no right of appeal in respect Federal offences. Nor, in my opinion, does his commission 0 prosecute by indictment in his name indictable offences against the laws of the Commonwealth triable in New South Wales confer upon him any authority or power to institute or prosecute appeals fom judgments or sentences pronounced upon indictments in respect of Federal offences.

_ By whom, then, can the right of appeal granted in respect of sentences pronounced regarding offences against the Federal law be

¢ Crown in the Commonwealth; in other words, the Attorney- General of the Commonwealth. But inthe present case, the appeal ras instituted in the name of the Honorable Henry Edward Manning, 8 Majesty's Attorney-General in and for the State of New South

Federal law. But we were assured at the Bar - and it was d that the fact could be proved if need be - that the Attorney- reneral of the Commonwealth had authorized and requested the ey-General of the State to institute and prosecute the appeal.

oF AUSTRALIA. 543 Commonwealth committed within the State, or who may lawfully H- ©. or A. be tried within the State for offences committed elsewhere." A ee "like jurisdiction " is, I apprehend, a jurisdiction analogous, similar Waz1ams or corresponding to that of the State Court in respect of offences Tum Kiva ainst the laws of the State. The section grants in respect of [N° 1) Starke J.

The objection taken on behalf of the prisoner goes then to the form of procedure, and has little real substance in it. p

I have had some doubt whether, in these circumstances, Court should interfere. The procedure, however, adopted in #] case tends to divert the due and orderly administration of the Is into an irregular course, which might be drawn into an evil preceden in future. Special leave to appeal should therefore be granted, appeal allowed, and the order of the Court of Criminal Ay

Drxon J. The applicant was prosecuted on indictment fo offence against the laws of the Commonwealth. He was tried befo a Court of Quarter Sessions and was convicted and sentenced to imprisonment. The Attorney-General of the State of New & Wales thereupon appealed to the Supreme Court, as the Court Criminal Appeal, against the sentence on the ground that it inadequate, and upon that appeal the sentence was increa Special leave to appeal is now sought against the order increa the sentence.

Unless it has been given by the joint operation of sec. 68 ( of the Commonwealth Judiciary Act 1903-1932 and sec. 5p of th New South Wales Criminal Appeal Act 1912, the Supreme has no jurisdiction upon an appeal on the part of the prosecut to increase a sentence pronounced upon a conviction for an indictal offence against the laws of the Commonwealth. Sec. 68 (2) the Judiciary Act 1903-1932 provides that the several Courts State exercising jurisdiction with respect to the hearing and d mination of appeals arising out of the trial or conviction on in ment, or out of any proceedings connected therewith, of off or persons charged with offences against the laws of the State s have the like jurisdiction with respect to persons who are ¢l with offences against the laws of the Commonwealth. By sec. of the Criminal Appeal Act of New South Wales, the Attorney General of the State is authorized to appeal against any se

it thinks proper. Assuming, without deciding, that the combined fiect of these provisions is to allow an appeal by the prosecution inst the sentence imposed on a prisoner convicted of an indictable offence against Federal law, it is, in my opinion, clear that the appeal s not given by the legislation to the Attorney-General of the State. By sec. 69 of the Judiciary Act 1903-1932 indictable offences against e laws of the Commonwealth must be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of uch other person as the Governor-General may appoint in that alf. Sec. 71 enables the Attorney-General of the Commonwealth, or a person so appointed in that behalf, to decline to proceed in such a prosecution. These provisions are inconsistent with the continuance of any authority which otherwise might exist in the State law officers as such to commence or maintain in State juris- diction prosecutions for offences against Federal law. The Attorney- al of the State can, therefore, have no interest in the judgment pronounced imposing the sentence appealed against. It is true that sub-sec. (I) (d) of sec. 68 of the Judiciary Act 1903-1932 applies the laws of the State with respect to the procedure for the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceeding connected therewith, of offenders gainst the laws of the States. But the qualification contained in the words occurring in the sub-section, "so far as they are applicable," xcludes the application of so much of the State law as gives the eal to the State Attorney-General. For these reasons I think the appeal instituted in the Supreme Court as the Court of nal Appeal by the State Attorney-General as such was

69 and 71 of the Judiciary Act 1903-1932 by the Governor- General by a commission in the King's name. It is said that it an be shown that the appeal was in fact instituted with the approval of the proper officers of the Commonwealth, and we are asked to allow the notice of appeal to be amended or to refuse this

lication on the ground that the objection could have been cured 'VOL. L. 37

to the Court of Criminal Appeal, which may impose such sentence as H. ©. or A.

by amendment. To amend the proceedings by substituting the individual name of the present State Attorney-General and describing _ him as a person appointed by a commission under sec. 69 of the Judiciary Act would only raise a new question. For it is not clear that his appointment would enable him to institute the appeal. The substitution by the Supreme Court of the Attorney-General of the Commonwealth as the appellant would have been proper only if that Court had been satisfied that the law officers of the Common- wealth had intended to undertake responsibility for the proceeding, In fact, when the objection was taken in the Supreme Court, nothing but the commission seems to have been laid before the Court. Moreover, inspection of the indictment shows that objections not altogether unarguable might be made to it, founded upon similar considerations, and the applicant might well have sought an oppor- tunity of raising these as a condition of such an amendment, if it had been applied for in the Supreme Court. But in fact no applica-_ tion was made in that Court on behalf of the Attorney-General of the Commonwealth to substitute him as the appellant. As it stood, the appeal was, in my opinion, incompetent.

The matter has more than a formal significance because respon- sibility for proceedings on behalf of the Crown in right of the Commonwealth must be taken by the officers to whom by law it belongs and no proceedings should be entertained which appear upon their face to be taken upon some other responsibility. I think we should not allow the proceedings to stand.

The question does not appear to me to arise at present whether sec. 68 (2) of the Judiciary Act 1903-1932 operates upon sec. 5p of the New South Wales Criminal Appeal Act in such a way as to enable the Attorney-General of the Commonwealth to appeal to the Court of Cfiminal Appeal against a sentence imposed upon a prisoner convicted in New South Wales on indictment of an offence against the laws of the Commonwealth ; but I do not wish to be understood as assenting to the view that the legislation does not have this operation.

In my opinion special leave to appeal should be granted. The appeal should be allowed, and the order of the Supreme Court increasing the sentence should be discharged.

(1), this Court held that nowhere in the Judiciary Act 1903-1927 was there conferred upon the Supreme Court of New South Wales jurisdiction to hear an appeal, under the Criminal Appeal Act 1912 S.W.), by a person convicted before a New South Wales Court upon an indictment charging an offence against the laws of the Commonwealth. It was further determined that the only right of appeal possessed by a person so convicted was as provided in sec. 72 of the Judiciary Act 1903-1927.

Tn that case, the appellant sought to rely upon sec. 68 (2) of the Judiciary Act, which provides that the several Courts of a State exercising jurisdiction with respect to " the trial and conviction on indictment " of persons charged with offences against the laws of that State should "have the like jurisdiction" with respect to persons charged with offences against the laws of the Commonwealth committed within the State. But it was decided that the words of sec. 68 (2) would not naturally be understood to refer to a jurisdiction to hear appeals from convictions on indictment.

The decision in Seaegg v. The King (1) was pronounced on ptember 21, 1932, and on December 5th, 1932, Act No. 60 of 1932 passed.

This Act amends sec. 68 (1) by making the State laws governing "the procedure " for the hearing and determination of appeals sing out of the trial on indictment or the conviction thereon or the proceedings connected therewith apply to persons charged with offences against the laws of the Commonwealth committed within that State.

_ Sec. 68 (2) is amended so as to confer upon that Court of a State which exercises jurisdiction with respect to the hearing and deter- Mmination of appeals arising out of any trial on indictment or convic- tion thereon or the proceedings connected therewith the "like jurisdiction " with respect to persons charged with offences against the laws of the Commonwealth committed within that State.

_ The present case concerns a person, the applicant, who was enced by a Chairman of Quarter Sessions in respect of three offences specified in the Commonwealth Crimes Act 1926. Having

_ Evatt anp McTiernan JJ. In the case of Seaegg v. The King 3-0. or A-

H.C. or A. pleaded guilty, the applicant was duly sentenced. The Attorney- cs General of the State of New South Wales then appealed to the | Was Supreme Court of that State sitting as a Court of Criminal Appeal

Tur Krxa under the Criminal Appeal Act 1912. The Court assumed jurisdie- (No. 1}.

tion, and increased the sentence from eighteen months to five years, Meats. g, Sec. Sp of the Criminal Appeal Act enables the Attorney-General of New South Wales to appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions. And it is contended for the respondent that the amendment to the Judiciary Act by Act No. 60 of 1932 had the effect, not only of enabling the Crown to appeal against the sentence imposed by the Court of Quarter Sessions in this case, but of enabling the Attorney-General

of New South Wales himself to exercise such right of appeal as under

sec. 5p of the Criminal Appeal Act. It is clear that the amendment to sec. 68 of the Judiciary Act was passed so as to get over the difficulties pointed out in Seaegg's Case (1), and thereby enable a person convicted on indictment within New South Wales in respect of Commonwealth offences to appeal to the Court of Criminal Appeal as though he had been convicted within New South Wales on indictment in respect to offences other than those against Commonwealth law. To this end, Federal jurisdiction is invested in the Court of Criminal Appeal by the amendment to sec. 68 (2), and the procedure relati to appeals to the Court of Criminal Appeal is made applicable by the amendment to sec. 68 (1). But it does not follow that it was intended by Parliament to give the Crown a right of appeal against the sentence imposed. Such an intention would usually be expressed very clearly, and an appeal against a sentence is, we understand, not accorded to the Crown by any State law excepting that of the _ State of New South Wales, although in every State of the Common- wealth a person convicted on indictment is given a right of appeal to the local Court of Criminal Appeal. : The question whether the Crown is, by the Act No. 60 of 1932, given an appeal against a sentence, also involves a determination whether the appeal against a sentence given to the Attorney-General under sec. 5p of the Criminal Appeal Act 1912 of New South Wales

accurately described as an " appeal arising out of any such trial conviction or out of any proceedings connected therewith." And it may well be contended that a mere right to question the adequacy of a sentence, though no objection is being raised to anything done in the course of the trial or as to the propriety of the conviction or s to the validity of any other proceedings related thereto, hardly comes within the words or intendment of the amending Judiciary Act. We desire, however, to leave this question open for consideration should the matter arise again in the future, because, even if the Crown is, by No. 60 of 1932, given a right of appeal against the dequacy of a sentence, the question arises whether the person to ise it is the Attorney-General of the Commonwealth or the Attorney-General of the State of New South Wales.

Tn our opinion, the Act No. 60 of 1932 gives no countenance to he theory that the grant of analogous jurisdiction to State Courts ising Federal jurisdiction involves a general transfer by the

this view is reinforced by sec. 69 (1) of the Judiciary Act, which provides that indictable offences against the laws of the Common- wealth shall be prosecuted by indictment in the name of the Attorney- eneral of the Commonwealth, or of such other person as the ttorney-General appoints in that behalf.

Assuming, therefore, that the Crown in right of the Commonwealth is entitled, by the combined effect of No. 60 of 1932, and sec. 5p of the Criminal Appeal Act of New South Wales, to appeal against the idequacy of a sentence, the person who alone can exercise this right

'This view is fatal to the appeal brought to the Court of Criminal Appeal in the present case, because it was so brought by the Attorney- General of New South Wales.

_ It was suggested, somewhat faintly, that sec. 69 of the Judiciary under which a commission issued appointing the present

against Commonwealth laws, might warrant his bringing the pre appeal to the Supreme Court. This is not so, because neither 69 nor the commission of appointment itself authorizes the ta of proceedings by way of appeal after an offence has been prosecut to conviction and sentence. Special leave to appeal should be granted, the appeal slownll e order of the Court of Criminal Appeal discharged, and the senten¢ imposed by the Court of Quarter Sessions restored.

Application for special leave to appeal granted. Appeal allowed. Order of the Court Criminal Appeal discharged. 4

Solicitor for the applicant, J. Yeldham. Solicitor for the respondent, W. H. Sharwood, Commonwe Crown Solicitor.

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)