Crampton v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow,Callinan JJ,McHugh J,Kirby J,Hayne J
• Judgment Date: 23 November 2000
• Neutral Citation: [2000] HCA 60,2000-1123 HCA A
• Docket Number: S233/1999
• Court: High Court
• Date: 23 November 2000

Alan James Crampton

Appellant

and

The Queen

Respondent

[2000] HCA 60

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S233/1999

HIGH COURT OF AUSTRALIA

Crampton v The Queen

Criminal law — Direction to jury — Events allegedly occurred in 1978 — Complaint made in March 1997 — Whether Longman warning required — Requirements of Longman warning.

Criminal law — Act of indecency with another male person — Whether defendant entitled to be acquitted on the basis that the evidence did not support a verdict of guilt on the correct interpretation of Crimes Act 1900 (NSW), s 81A.

Constitutional law (Cth) — Whether the High Court can entertain grounds of appeal sought to be raised for the first time in the High Court.

Words and phrases — ‘with’.

Constitution, s 73.

Crimes Act 1900 (NSW), s 81A.

Representation:

P Byrne SC with M A Marty for the appellant (instructed by MacMahon Associates)

M G Sexton SC, Solicitor-General for the State of New South Wales with S J Gageler and A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with A S Bell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with I K Haythorpe intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

ORDER

1. Special leave to appeal granted, appeal treated as instituted and heard instanter, and appeal allowed.

2. Set aside order of the Court of Criminal Appeal of New South Wales made on 1 June 1999 and in lieu thereof order that the appeal to that Court be allowed, conviction quashed and a verdict of acquittal entered.

1 Gleeson CJ. The Court has before it an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales 1 dismissing an appeal against the applicant's conviction, following a trial in the District Court of New South Wales, of an offence against s 81A of the Crimes Act 1900 (NSW).

2 The principal ground of that application is as follows:

‘The applicant has been convicted of an offence under s 81A Crimes Act 1900 (NSW) (in the terms in which the section stood in 1978) on the basis of evidence which clearly fails to establish the elements of that offence and which positively establishes that the offence charged has not been committed, either in the manner alleged or at all.’

3 The basis of that contention is that, on the evidence relied upon by the prosecution at trial, the case fell outside the terms of s 81A, as those terms had been construed by the Court of Criminal Appeal 2, and as the same language had been construed by the English Court of Appeal 3. The section prohibited an act of indecency by a male person with another male person. A later, similar provision was amended to prohibit such conduct with or towards another male person 4, but, at the relevant time, the statutory prohibition was against acts of indecency with another male person. The decisions referred to established that the conduct of the applicant was conduct towards the complainant, but not conduct with him, and therefore s 81A did not apply. The facts of the case appear sufficiently from the reasons of Gaudron, Gummow and Callinan JJ. For the reasons given by their Honours, I agree that the decisions were correct, and should be followed in this Court.

4 The authorities just mentioned were not drawn to the attention of the trial judge, or of the Court of Criminal Appeal. There was no possible tactical advantage to the defence in failing to raise the point at trial or on appeal. In those circumstances, there is a question whether, as a matter of jurisdiction and discretion, this Court can, and should, grant special leave to appeal. If the answer to both aspects of that question is in the affirmative, the consequence of allowing the appeal will be to quash the conviction.

5 There is another point in the case, which was taken (unsuccessfully) in the Court of Criminal Appeal, and in respect of which there has already been a grant of special leave to appeal. In brief, it is whether the directions of the trial judge complied with the requirements stated by this Court in Longman v The Queen5. I agree that they did not. However, this is a new trial point, and the applicant, even if successful on it, wishes to press the argument concerning the construction of s 81A.

6 In Giannarelli v The Queen6, this Court 7 unanimously decided to grant special leave to appeal, and allowed an appeal, in a case similar to the present. The applicants had been convicted of perjury. The offences were said to have been committed in the course of giving evidence before a Royal Commission. There was an unsuccessful appeal to the Court of Criminal Appeal of Victoria. In this Court the applicants raised, for the first time, a point of law which, if correct, meant that they could not properly have been convicted. There was a statute which made inadmissible, at a criminal trial, evidence of what they had said at the Royal Commission. At the trial, and in the Court of Criminal Appeal, the statute had not been relied upon.

7 Gibbs CJ said 8:

‘It is of course only in an exceptional case that this Court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point that the applicant seeks to raise in attacking the conviction was not taken either at the trial or in the Court of Criminal Appeal. However, the present case is exceptional, in that under the law the charge laid could never be proved.’

8 That statement reflected the practice of the Court, both in criminal and civil cases 9. In Gipp v The Queen10, Kirby J pointed out that the practice was not inconsistent with the decision in Mickelberg v The Queen11, in which it was held

that this Court could not receive fresh evidence on an appeal, and explained why that was so. I agree with the view his Honour then expressed, and with the reasons he gave.

9 In Gipp12, two members of the Court, without deciding the issue, expressed reservations about the practice.

10 In my opinion the conclusion in Giannarelli as to the Court's power to grant special leave even where the point to be relied upon was raised for the first time was correct, as was the statement that the power should only be exercised in exceptional circumstances.

11 The Court of Criminal Appeal was exercising jurisdiction conferred upon it by ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). Section 6 of the Criminal Appeal Act relevantly provides that the Court of Criminal Appeal shall allow an appeal if it is of the opinion that the verdict of the jury cannot be supported having regard to the evidence. That covers the present case. From time to time, points are raised in the Court of Criminal Appeal which were not taken at trial. In certain kinds of case, r 4 of the Criminal Appeal Rules requires the leave of the Court, but the requirement for leave assumes the power to entertain grounds of appeal based on new points. The Court of Criminal Appeal had jurisdiction to entertain the point upon which the applicant now seeks to rely. This Court is not being invited ‘to go beyond the jurisdiction or capacity of the Court appealed from.’ 13 What is proposed is in no sense a re-hearing, or an exercise of original jurisdiction.

12 The jurisdiction of this Court which is invoked is that conferred by s 73 of the Constitution. It is enlivened by the existence of a judgment, decree, order or sentence. The process of reviewing the final determination of the Court of Criminal Appeal, which was a judgment, in the light of the material that was before that Court, is strictly appellate, notwithstanding that a new legal issue is permitted to be raised in this Court. Error in a final determination does not necessarily involve error in the process of reasoning of the court. This view of the nature of an appeal has been acted upon, in England and Australia, for more than a century. In 1892, in Connecticut Fire Insurance Co v Kavanagh14, the Privy Council said:

‘When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea.’

13 Statements of the limitations upon the circumstances in which the power will be exercised acknowledge its existence. For example, in Suttor v Gundowda Pty Ltd15 the Court said:

‘The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.’

14 The power invoked in the present case exists but, as was said in Giannarelli, it should only be exercised in exceptional circumstances. There are a number of reasons for this.

15 First, there is what was referred to by L'Heureux-Dubé J in the Supreme Court of Canada as ‘the overarching societal interest in the finality of litigation in criminal matters’ 16 when she said:

‘Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.’

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