R v Gee

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow JJ,Kirby J,Callinan J
• Judgment Date: 13 March 2003
• Neutral Citation: 2003-0313 HCA A,[2003] HCA 12
• Docket Number: A61/2002
• Court: High Court
• Date: 13 March 2003

[2003] HCA 12

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ

A61/2002

The Queen

Appellant

and

Robert Gordon Pollybank Gee and Anor

Respondents

Representation:

C J Kourakis QC with D Petraccaro for the appellant (instructed by Director of Public Prosecutions (Commonwealth))

B W Walker SC with A L Tokley and S D Ower for the first respondent (instructed by Jon Lister)

S W Tilmouth QC with N M Hurley for the second respondent (instructed by Noelle Hurley)

Intervener:

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

Crimes Act 1914 (Cth), ss 5, 29D.

Criminal Law Consolidation Act 1935 (SA), s 350.

Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA), s 4.

Director of Public Prosecutions Act 1983 (Cth), s 9(7).

Judiciary Act 1903 (Cth), ss 2, 39(2), 68(2), 69(1), (2), (2A), 72, 73, 74, 75, 76, 77.

Judiciary Act 1932 (Cth)

Statutes Amendment (Attorney-General's Portfolio) Act 1996 (SA), s 9.

The Queen v Gee

Criminal Law — Jurisdiction — Exercise of federal jurisdiction by state Supreme Courts — Offences against laws of the Commonwealth — Where s 350 of the Criminal Law Consolidation Act 1935 (SA) provides for the Full Court of the Supreme Court of South Australia to hear and determine questions of law reserved by the District Court — Whether s 68(2) of Judiciary Act 1903 (Cth) confers jurisdiction on the Full Court of the Supreme Court to hear and determine a question of law reserved by the District Court under State law during a trial of persons charged with offences against the laws of the Commonwealth.

Criminal Law — Prosecution — Commonwealth Director of Public Prosecutions — Powers of — Whether questions of law reserved to the Full Court constituted an appeal for the purposes of s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).

Appeal — Whether case stated procedure provided for by s 350 of the Criminal Law Consolidation Act 1935 (SA) constitutes an appeal for the purposes of s 68(2) of the Judiciary Act.

Words and phrases: ‘appeal’.

ORDER

1. Appeal allowed.

2. Set aside order of the Full Court of the Supreme Court of South Australia made on 14 March 2001.

3. Remit proceeding to the Full Court of the Supreme Court of South Australia for further hearing and determination in accordance with the decision of this Court.

1 Gleeson CJ. The central issue in this appeal concerns the relationship between s 350 of the Criminal Law Consolidation Act 1935 (SA) (‘the Criminal Law Consolidation Act’) and s 68(2) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). The question is whether s 68(2) of the Judiciary Act confers jurisdiction on the Full Court of the Supreme Court of South Australia to hear and determine a question of law reserved by the District Court, on an application made under s 350 of the Criminal Law Consolidation Act, where the District Court is dealing with the trial of persons charged with offences against the laws of the Commonwealth. That question was answered in the negative by a majority of a specially constituted Full Court of the Supreme Court of South Australia 1. That Court declined to follow an earlier decision of its own 2, and a decision of the Court of Appeal of Queensland on a similar point 3.

2 The facts of the case, and the history of the proceedings in the South Australian Courts, appear from the reasons for judgment of McHugh and Gummow JJ.

3 The case stated procedure for which s 350 provides, in its application to a matter within State jurisdiction, enables the Full Court of the Supreme Court, where appropriate, to review rulings of the kind made in the present proceedings. Whilst the fragmentation of criminal proceedings is ordinarily to be avoided, there may be circumstances where such a procedure is useful. It is part of the current South Australian system of criminal justice. When State courts hear criminal cases in federal jurisdiction, the general purpose of s 68 of the Judiciary Act is to bring about the result that, in the exercise of such jurisdiction, State courts apply the same procedure as when they exercise State jurisdiction 4. The question is whether that legislative purpose, as expressed in the language of s 68(2), extends to the s 350 procedure.

4 Section 68(2) provides:

‘(2) The several Courts of a State or Territory 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 or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.’

5 The word ‘appeal’ is defined in s 2 of the Judiciary Act to include any proceeding to review or call in question the decision of any court or judge. The Full Court correctly held that the stated case procedure under s 350, when invoked in an ordinary case in the exercise of State jurisdiction, involves a proceeding to review or call in question the decision of a primary judge.

6 As was acknowledged by Doyle CJ, who was in the majority in the Full Court, the language of s 68(2) is both general and ambulatory. This is consistent with its purpose, which is to ‘assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences’ 5. In Williams v The King [No 2]6 Dixon J, speaking of the reference to appeal procedure, said:

‘But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description“appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith”. This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.’

7 That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That

explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.

8 Such a construction of s 68(2) leads to the result for which the appellant contends; a result that, as noted, had been accepted previously by the Full Court of the Supreme Court of South Australia, and the Court of Appeal in Queensland. The s 350 procedure involves the Full Court in an exercise of jurisdiction with respect to the hearing and determination of appeals arising out of a trial of persons charged with offences against the laws of the State or proceedings connected therewith. There is nothing in s 80 of the Constitution that bears upon the matter. Therefore, the Full Court has the like jurisdiction with respect to persons, such as the respondents, who are charged with offences against the laws of the Commonwealth.

9 The reason given by the majority in the Full Court for declining to accept that construction was based on legislative history and context.

10 Section 68 of the Judiciary Act is in Pt X. It constitutes Div 1 of Pt X, and is headed ‘Application of laws’. The sub-heading is ‘Jurisdiction of State and Territory courts in criminal cases’. Division 2 is not presently relevant. Division 3, headed ‘Appeals’, reflects an important difference between the criminal justice system at the time of the enactment of the Judiciary Act and the present. Before 1912, criminal appeals in their present form did not exist in the Australian States. The Criminal Appeal Act 1912 (NSW) introduced criminal appeals in that State. Its counterpart in South Australia was enacted in 1924 7. However, before 1912, there was legislation in the States which permitted a form of appellate review of decisions in criminal cases by way of case stated. When the Judiciary Act was enacted in 1903, ss 72-76, under the heading ‘Appeal’, set out what was described in Seaegg v The King8 as a ‘code of procedure for an appeal by way of case stated upon a point of law raised at the trial.’ That procedure was generally similar to corresponding State procedures.

11 At that time, s 68(2) did not contain the words ‘and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith’. Thus, ss 72-77 were the only part of Pt X that dealt with appeals. Section 68 said nothing on that subject.

12 The words referred to in the preceding paragraph came to be added to s 68(2) in the following circumstances. New South Wales, in 1912, introduced a

procedure for criminal appeals of the kind with which we are now familiar. In Se...