Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 (18 May 1984)

HIGH COURT OF AUSTRALIA

THOMAS JOHN DAVERN v. HARRY MESSEL [1984] HCA 34; (1984) 155 CLR 21

Criminal Law - Federal Court of Australia - Statutes

High Court of Australia

Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4), Brennan(2), Deane(5)

and Dawson(6) JJ.

CATCHWORDS

Criminal Law - Double jeopardy - Rule against - Whether displaced by statute - Appeal by Crown against quashing of conviction on accused's appeal from conviction - Federal Court of Australia Act 1976 (Cth), ss. 24(1), 28(1).

Federal Court of Australia - Full Court - Appeal - Power to order verdict of guilty or new trial after verdict of not guilty - Federal Court of Australia Act 1976 (Cth), s. 28(1)(e), (f).

Statutes - Power to make regulatory orders - Fishing - Declaration of closed area - Power to declare any water specified in notice - Declaration of all waters within stipulated area - Certainty - Fisheries Act 1965 (N.T.), s. 13(1).

HEARING

1983, October 11, 12;

1984, May 18. 18:5:1984

APPEAL from the Federal Court of Australia.

DECISION

GIBBS C.J. Before the Court are two applications for special leave to appeal. The first application raises for our consideration the question whether the Federal Court of Australia is competent to entertain an appeal from a judgment of a judge of the Supreme Court of a Territory quashing a conviction imposed by a magistrate for an offence against the law of the Territory.

2. The applicant, Mr Davern ("the complainant"), laid four complaints under the Justices Act (N.T.) against the respondent, Professor Messel, charging him with four offences against the law of the Northern Territory. The respondent was charged with -



(1) Taking in waters declared to be closed against

the taking of barramundi by the Administrator

in Council acting pursuant to s.13(1) of the

Fisheries Act (N.T.) and published in the

Northern Territory Government Gazette G34

dated 24 August 1979 barramundi from those

waters contrary to s.13(2) of the Fisheries

Act;

Island, a weapon that discharges a projectile,

namely a shotgun, contrary to s.24(2) of the

Territory Parks and Wildlife Conservation Act

(N.T.);

(3) Killing a protected animal, namely magpie

geese (anseranas semipalmata), contrary to

s.29(1) of the Territory Parks and Wildlife

Conservation Act; and

(4) Having under his control the flesh of a

protected animal, namely breasts of magpie

geese (anseranas semipalmata) contrary to

s.31(1) of the Territory Parks and Wildlife

Conservation Act.

3. The complaints came before the Chief Stipendiary Magistrate of the Northern Territory who after a hearing convicted the respondent on each complaint and in respect of each charge ordered him to pay a fine and in default to be imprisoned. On the charge under s.13(1) of the Fisheries Act an order for the forfeiture of property was also made. On 11 August 1980 the respondent appealed from these convictions and orders to the Supreme Court of the Northern Territory. The appeal was brought under s.163 of the Justices Act (N.T.). The appeals came before Gallop J. who referred to the Full Court of the Supreme Court an application made to him for directions as to the conduct of the appeal. The Full Court, after hearing argument, gave directions as follows:

"(1) The appeal be heard as a rehearing of the

issues raised by the notice of appeal.

(2) It will be for the presiding judge to

determine pursuant to the statute upon

material presented to him by the parties or

either of them whether further evidence will

be admitted and/or whether he considers it

expedient in the interest of justice that he

should hear viva voce evidence of witnesses

who have given evidence in the court below.

(3) The respondent (i.e. the complainant) shall

bear the ultimate onus of proof of facts

necessary to support the conviction to the

criminal standard."

On 18 November 1981 the appeals came on for hearing before Gallop J. who after hearing argument ruled as follows:

"I therefore direct that the appeal be heard as a

rehearing of the issues raised by the notice of

appeal; I declare that it is in the interests of

justice that I should hear viva voce evidence from

such witnesses as the respondent (i.e. the

complainant) wishes to call ..."

4. It is by no means clear that the course taken by the learned judge was authorized by the provisions of the Justices Act. When ss.176 and 176A of that Act, in the form in which they were in force when the matter came before Gallop J., are read together they strongly suggest that the intention of the legislature was that an appeal under s.163 should proceed upon a record of the evidence taken at first instance and that an order that further oral evidence be received should be made only in exceptional circumstances when for some reason it became necessary to call a particular witness. However, no objection was taken to Gallop J. proceeding as he did and since the Justices Act has now been amended in a way that makes it clear that the procedure which he adopted cannot in future be followed, it is unnecessary to consider this question.

5. The hearing of the appeal resumed before Gallop J. on 29 March 1982 and continued until 1 April 1982. After a good deal of evidence had been called, but before the complainant's case had been closed, it was agreed by the parties that they should argue a number of questions which, if decided against the complainant, would be determinative of the appeals. The learned judge concurred in this course. After hearing argument he gave extemporary reasons for judgment in which he decided as follows:

(1) That a declaration expressed to be made under

the Fisheries Act that 'all waters' be closed

against the taking of (inter alia) barramundi

was not a valid exercise of the power

conferred by s.13(1) of the Fisheries Act;

(2) That on the proper construction of the

Territory Parks and Wildlife Conservation

Act and Regulations thereunder there was no

evidence that magpie geese were protected

animals; and

(3) On the proper construction of s.6 of the

Territory Parks and Wildlife Conservation Act

Melville Island was not a protected area

within the meaning of that Act.

His Honour accordingly held that no prima facie case had been made out in respect of any of the complaints and he allowed the appeals and quashed the convictions. His Honour said:

"It will be apparent to the parties in the matter

that I have reached my decisions about the four

charges because of the highly unsatisfactory state

of the legislation.

I expressly say that I have not embarked upon

a consideration of the merits of the matter ... It

should be clearly understood that I have not

embarked upon the merits at all; that I have found

that there is no prima facie (sic) in respect of

any one charge because of the legislation itself

and the difficulties of interpretation."

6. The complainant appealed from this decision to the Federal Court of Australia. Power is given to the Federal Court to entertain appeals by s.24(1) of the Federal Court of Australia Act 1976 (Cth), as amended, which reads as follows:

"Subject to this section and to any other Act,

whether passed before or after the commencement of

this Act (including an Act by virtue of which any

judgments referred to in this section are made

final and conclusive or not subject to appeal), the

Court has jurisdiction to hear and determine -

(a) appeals from judgments of the Court

constituted by a single Judge;

(b) appeals from judgments of the Supreme

Court of a Territory; and

(c) in such cases as are provided by any

other Act, appeals from judgments of a

court of a State, other than a Full Court

of the Supreme Court of a State,

exercising federal jurisdiction."

The powers of the court in the exercise of its appellate jurisdiction are dealt with by s.28 of that Act. It is necessary to refer only to sub-ss.(1) and (5) of that section which are in the following terms:

"(1) Subject to any other Act, the Court may, in

the exercise of its appellate jurisdiction -

(a) affirm, reverse or vary the judgment

appealed from;

(b) give such judgment, or make such order,

as, in all the circumstances, it thinks

fit, or refuse to make an order;

(c) set aside the judgment appealed from, in

whole or in part, and remit the

proceeding to the court from which the

appeal was brought for further hearing

and determination, subject to such

directions as the Court thinks fit;

(d) set aside a verdict or finding of a jury

in a civil proceeding, and enter judgment

notwithstanding any such verdict or

finding;

(e) set aside the verdict and judgment in a

trial on indictment and order a verdict

of not guilty or other appropriate

verdict to be entered;

(f) grant a new trial in any case in which

there has been a trial, either with or

without a jury, on any ground upon which

it is appropriate to grant a new trial;

or

(g) award execution from the Court or, in the

case of an appeal from another court,

award execution from the Court or remit

the cause to that other court, or to a

court from which a previous appeal was

brought, for the execution of the

judgment of the Court."

"(5) The powers of the Court under sub-section (1)

in an appeal (whether by the Crown or by the

defendant) against a sentence in a criminal matter

include the power to increase or decrease the

sentence or substitute a different sentence."

7. The respondent objected to the competency of the appeal on the ground that the general words of s.24(1)(a) and (b) of the Federal Court of Australia Act do not confer jurisdiction to hear and determine appeals in circumstances where the exercise of such jurisdiction would be contrary to the fundamental principle that a person should not be twice put in jeopardy for one and the same offence. It has been so held by the Full Court of the Federal Court in Thompson v. Mastertouch TV Service Pty. Ltd. [1978] FCA 24; (1978) 19 ALR 547 - but in that case the appeal brought to the Federal Court was from the dismissal by a single judge of the court of an information laid against the party who became the respondent in that case. The Full Court in the present case, by a majority (Sheppard and Morling JJ.; Fox J. dissenting) upheld the objection to competency. Before us it was argued on behalf of the complainant that Mastertouch was wrongly decided, or, alternatively, distinguishable in that it has no application to a case in which an appeal is brought to the Full Court of the Federal Court from a judgment, given on an appeal by the original defendant, quashing a conviction imposed at first instance.

8. The rule against double jeopardy is an application in the criminal law of the principle expressed in the maxim nemo debet bis vexari pro una et eadem causa: a person shall not be twice vexed for one and the same cause. It is, as Blackstone pointed out, the foundation of the pleas of autrefois acquit and autrefois convict: see Connelly v. Director of Public Prosecutions (1964) AC 1254, at p 1306 and Reg. v. Humphrys (1977) AC 1, at p 15. As Hawkins J. said in Reg. v. Miles (1890) 24 QBD 423, at p 431, the law is "that where a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation ...". In Reg. v. Police Complaints Board; Ex parte Madden (1983) 2 All ER 353, at p 367, McNeill J. said: "Double jeopardy, properly understood, is best described in the phrase 'no man should be tried twice for the same offence'". Similarly in Kepner v. United States [1904] USSC 153; (1904) 195 US 100 (49 Law Ed 114) Day J., delivering the judgment of the majority of the Supreme Court, said, at p 130 (at p 125 of Law Ed), that the protection of the rule against double jeopardy is "against being again tried for the same offence." Those statements do not state exhaustively the present scope of the rule, but in my opinion they indicate its primary purpose for, as Holmes J. said in his dissenting judgment in Kepner v. United States, at p 134 (at p 126 of Law. Ed.): "Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once."

The purpose of the rule is of course to ensure fairness

to the accused. It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused person on the same evidence, perhaps before what the prosecutor "considered to be a more perspicacious jury or tougher judge": Reg. v. Humphrys, at p 47. It might not be quite so obvious that it would be unfair to put an accused upon his trial again if fresh evidence, cogent and conclusive of his guilt, came to light after his earlier acquittal, but in such a case the facts that an unscrupulous prosecutor might manufacture evidence to fill the gaps disclosed at the first trial, and the burden that would in any case be placed on an accused who was called upon repeatedly to defend himself, provide good reasons for what is undoubtedly the law, that in such a case also the acquittal is final: cf. Reg. v. Miles, at p 433.

9. When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an indirect application. An appeal is a remedy given by statute; the scope of the appeal must be governed by the terms of the enactment creating it: Commissioner for Railways (N.S.W.) v. Cavanough [1935] HCA 45; (1935) 53 CLR 220, at p 225. The question whether an appeal lies from an acquittal therefore must be decided as a matter of statutory interpretation. However it is a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed. The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires that an acquittal be treated as final. In Benson v. Northern Ireland Road Transport Board (1942) AC 520, at p 526, the House of Lords accepted as correct a statement by Palles C.B. in R v. Tyrone County Justices (1906) 40 Ir LT 181, at p 182, that it is an elementary principle that "an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court." It was accordingly held that the general words of a statute conferring a right to appeal against an order of a court of summary jurisdiction on "any party against whom an order is made for payment of any penal or other sum ..." did not suffice to give a complainant a right of appeal against an order of a court of summary jurisdiction which had dismissed the complaint and ordered the complainant to pay costs. The principle of the decision has been applied in Australia: see Platz v. Osborne [1943] HCA 39; (1943) 68 CLR 133, at p 141; Keetley v. Bowie [1951] HCA 56; (1951) 83 CLR 516, at p 518; and Beer v. Toms; Ex parte Beer (1952) St R Qd 116, at p 119.

10. However, it was submitted on behalf of the complainant that the decision in Benson v. Northern Ireland Road Transport Board was inconsistent with the decision of this Court in Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155 and should not be followed. The judgment in the latter case appears to have proceeded on the assumption that s.113(1) of the Conciliation and Arbitration Act 1904-56 (Cth), which gave the Commonwealth Industrial Court jurisdiction to hear and determine an appeal from a judgment, decree, order or sentence of a State court, conferred jurisdiction to hear an appeal from the dismissal of an information charging an offence under s.138 of that Act. However, the question argued in that case was the constitutional validity of s.113(3) of the Conciliation and Arbitration Act, and no argument was directed to the effect of s.113(1) - indeed it appears to have been common ground that that sub-section did give a right of appeal from the dismissal of the information. I do not regard the decision as of assistance in determining the present question, but if that be wrong it should be observed that the decision of the magistrate from which the appeal was brought depended on his view of the interpretation of s.138, and not, it appears, on the facts of the case.

11. More support for the view that Benson v. Northern Ireland Road Transport Board should not be accepted in Australia is provided by R v. Snow [1915] HCA 90; (1915) 20 CLR 315 where the majority of the Court held that under s.73 of the Constitution the High Court had jurisdiction to entertain an appeal from a judgment ordering the discharge from custody of an accused person after a jury had returned a verdict of not guilty in compliance with the direction of the trial judge that they should so do, but refused special leave to appeal. The views of the Justices in that case were conflicting, and the result unsatisfactory, in that the effect of the decision was that although s.73 gave jurisdiction to entertain such an appeal, it did not confer jurisdiction on the Court to set aside the verdict of not guilty. The common law rules as to the conclusive nature of an acquittal were not overlooked, but those Justices who held that there was power to set aside the verdict did so on the ground that the direction of the trial judge had been wrong in law. It should be observed that the decision throws no light on a different question - whether the High Court can grant special leave to appeal from a judgment setting aside a conviction - a question to which I shall later refer.

12. Notwithstanding these decisions, there is in my opinion no sufficient reason to question the rule, laid down in Benson v. Northern Ireland Road Transport Board, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time. The rule was in my opinion correctly applied in Thompson v. Mastertouch TV Service Pty. Ltd. Section 24 of the Federal Court of Australia Act is quite general in its terms. The provisions of s.28(1)(e) indicate that the court on appeal would have no power to order a verdict of guilty to be entered and therefore no power to set aside a verdict of not guilty. It is unlikely that the draftsman, having specifically referred to a verdict of not guilty, would have intended that a verdict of guilty should be embraced by the general words "or other appropriate verdict", and those words have a further function to fulfil even if they do not refer to a verdict of guilty, as Deane J. pointed out in Thompson v. Mastertouch TV Service Pty. Ltd., at p 558. The general words of s.28(1)(f) cannot be understood as intended to give power to order a new trial after a verdict of not guilty has been entered. This view is strengthened by the contrast between the general words of these provisions and the express terms of s.28(5) which recognize that the Crown has a right to appeal against sentence. If Mastertouch is wrong, it would seem to follow that s.24 would give an unqualified right of appeal to the Federal Court from a judgment of acquittal based on a jury's finding of not guilty: see per Deane J. at p.556; that would be an unprecedented legislative innovation, at least in England or Australia. I accordingly respectfully agree with the conclusion of Deane J. in Thompson v. Mastertouch TV Service Pty. Ltd. that the general words of s.24 do not affect the right of the subject to be 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: see pp.550, 552, 560. Room may remain for argument on the question when a hearing is not one on the merits, but that question raises no difficulty in the present case.

13. To approve of the decision in Thompson v. Mastertouch TV Service Pty. Ltd. is not, however, to resolve the present question, since, as I have said, that decision dealt with the case of an appeal brought directly from an acquittal. We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning.

14. As I have shown, the House of Lords in Benson v. Northern Ireland Road Transport Board applied the well known principle that a statutory provision will not be construed as overthrowing a fundamental rule of the common law unless it expresses a clear intention to do so. The question then is whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and prevent oppression. It seems to me neither unfair nor oppressive to restore a conviction that was set aside on erroneous legal grounds.

15. In England the principle on which the rule against double jeopardy rests has been thought to be inconsistent with the notion that an accused person, once acquitted by a jury, should have to face a new trial. In Reg. v. Duncan (1881) 7 QBD 198, the court refused an application for a new trial of a defendant who had been acquitted by a jury at quarter sessions, and Lord Coleridge C.J. said, at p.199, "The practice of the Courts has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted." Consistently with this view, when a convicted person was, in 1907, first given a right of appeal, the Court of Criminal Appeal in England was not given power to order a new trial - with results that many have thought inconvenient. Today the position remains that the Court of Criminal Appeal in England cannot order a new trial, except where an appeal against a conviction is allowed only by reason of fresh evidence: s.7 of the Criminal Appeal Act 1968 (U.K.). The Criminal Appeal Act 1907 (U.K.) had the effect that the prosecutor (inter alios) might appeal to the House of Lords in a case in which the Court of Criminal Appeal had quashed a conviction, and neither the Parliament of the United Kingdom, nor the House of Lords in its judicial capacity, apparently saw in this provision any conflict with the principle that a verdict of acquittal is final. In R v. Ball (1911) AC 47, the House of Lords rejected the argument that the role of the House of Lords on such an appeal was to do no more than give its opinion for guidance in future cases, and held that the proper course, when a judgment of the Court of Criminal Appeal was reversed, was to remit the case back to the Court of Criminal Appeal to proceed in accordance with the judgment of the House of Lords: see at pp.69, 70, 72. Since that time the House of Lords has not infrequently reversed a decision of the Court of Criminal Appeal directing a verdict to acquit: a few well known examples are Director of Public Prosecutions v. Beard (1920) AC 479; Attorney-General for Northern Ireland v. Gallagher [1961] UKHL 2; (1963) AC 349 and Reg. v. Humphrys.

16. The Privy Council also has in a number of cases allowed an appeal from a decision of a court which had set aside a conviction. Its jurisdiction to do so was affirmed in Reg. v. Bertrand (1867) LR 1 PC 520, where the Judicial Committee, allowing an appeal from an order of the Full Court of New South Wales setting aside a conviction for murder and ordering a new trial, said, at p.530, that the Queen in Council had an inherent prerogative right to entertain the appeal, and a duty to exercise the jurisdiction "with a view not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally." In Attorney-General for Ceylon v. Perera (1953) AC 200, counsel for the respondent "submitted that if a decision had once been given in favour of the prisoner no appeal could be brought, reliance being placed on the doctrine that after an acquittal a prisoner could never be put in peril again" (see at pp.202-3). The argument was rejected. Lord Goddard, who delivered the judgment of the Board, said at p.203:

"The order of the Court of Criminal Appeal in this

case does not amount to an acquittal. It merely

sets aside the verdict and sentence and orders a

new trial, though no doubt the effect of the order

is to restore the prisoner to the position of one

who has not yet been tried. It is not on this

ground that the Board decided they had jurisdiction

to entertain the appeal, but because a series of

cases has decided, in their opinion, that Her

Majesty in Council has power to entertain an appeal

from any Dominion or Dependency of the Crown in any

matter, whether civil or criminal, by whichever

party to the proceedings the appeal is brought,

unless that right has been expressly renounced."

In a later case, Reg. v. Edirimanasingham (1961) AC 454, the Privy Council reversed a decision of the Court of Criminal Appeal of Ceylon which had quashed a conviction and remitted the matter to the Court of Criminal Appeal. These and other decisions of the Judicial Committee in which a similar course was taken were no doubt based on the width of the prerogative, but it does not seem to have occurred to any of the distinguished lawyers concerned that there was any conflict between the rules governing the extent of the prerogative and the common law principle that forbids an accused person to be exposed to double jeopardy.

17. In all the States of Australia, and in New Zealand, the Court of Criminal Appeal has express statutory power to order a new trial, and orders are commonly made in exercise of this power. The question has however arisen in Australia whether the words of s.73 of the Constitution, which confer on the High Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences", and the provisions of the Judiciary Act which require special leave to be given before an appeal may be brought from a judgment in a criminal matter, give the Court power to grant special leave to appeal from a decision of a court of criminal appeal of a State quashing a conviction. It has been consistently held that such power exists: see Attorney-General of New South Wales v. Jackson [1906] HCA 90; (1906) 3 CLR 730; the second case of R v. Snow [1917] HCA 25; (1917) 23 CLR 256, at p 261; and R v. Weaver [1931] HCA 23; (1931) 45 CLR 321. In the last-mentioned case Gavan Duffy C.J. and Starke and McTiernan JJ. said, at pp.332-3:

"As already observed, the Court of Criminal Appeal

directed the entry of a verdict of acquittal, and

it was said that such a verdict is final and

conclusive. No doubt a verdict of acquittal given

by a jury on a sufficient indictment in a purely

criminal trial conducted by a competent Court is

final ... But the decision of the Court of Criminal

Appeal quashing a conviction and entering judgment

and verdict of acquittal is a determination of a

Court of law, and not of a jury, and has been

regarded in this Court as subject to the appellate

power ..."

Evatt J. said, at p.356:

"A question was raised during the appeal as to

whether it was competent for the High Court to hear

appeals from judgments of the Supreme Court of a

State directing the entry of a verdict of acquittal

in criminal cases, pursuant to State Acts which

give a right of appeal from a jury's verdict of

guilty. I am of opinion that the High Court has

jurisdiction to hear appeals from such judgments of

the Supreme Court of a State. The verdict of

acquittal entered by the Supreme Court as a Court

of Criminal Appeal, whatever it may be in point of

form, differs greatly in substance from an original

verdict of a jury to whom an accused person has

been given in charge upon an indictment and who

have acquitted. The jury's verdict of not guilty

has a special constitutional finality and sanctity

which are always regarded as an essential feature

of British criminal jurisprudence."

More recently in Reg. v. Darby [1982] HCA 32; (1982) 56 ALJR 688, this Court allowed an appeal from a judgment of the Court of Criminal Appeal of a State quashing a conviction and affirmed the conviction and remitted the matter to the Supreme Court.

18. In R v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, where an application for special leave to appeal was refused in the exercise of the discretion of the Court, Dixon J. said, at pp.516-7:

"I think this application should be refused in

the exercise of the discretion of the Court. An

application for special leave to appeal from a

judgment of acquittal is a rare thing. According

to the decision of this Court in Lloyd v.

Wallach [1915] HCA 60; ((1915) 20 C.L.R. 299), the terms of the

Constitution are sufficiently wide to enable us to

entertain an appeal from a judgment of acquittal.

The judgment of acquittal in this case is the

judgment of the Supreme Court as a court of

criminal appeal and is contrary to the verdict of

the jury and not in accordance with the verdict of

the jury. We would not, of course, go behind a

verdict of not guilty. In Secretary of State for

Home Affairs v. O'Brien ((1923) AC 603), the

House of Lords construed the Appellate Jurisdiction

Act, 1876 in a way which is not quite consistent

with the interpretation which this Court placed

upon s. 73 of the Constitution. This Court

nevertheless has continued to act upon that

interpretation and has entertained applications by

the Crown for special leave to appeal from

judgments of acquittal given by courts of criminal

appeal. We should, however, be careful always in

exercising the power which we have, remembering

that it is not in accordance with the general

principles of English law to allow appeals from

acquittals, and that it is an exceptional

discretionary power vested in this Court."

I would respectfully venture two comments on his Honour's remarks. First a judgment of a court of criminal appeal quashing a conviction is not the same as an acquittal by a jury, as was pointed out in R v. Weaver and as I think Dixon J. recognized in the passage which I have just cited. Secondly, Secretary of State for Home Affairs v. O'Brien was an appeal from an order granting habeas corpus; that case is analogous to one in which an appeal is brought from an acquittal, but not to a case in which the appeal is from an order setting aside a conviction. In any case, it seems to me clear that Dixon J. was proceeding on the footing that the earlier decisions, to which I have referred and which recognize that the High Court has jurisdiction to grant special leave to appeal from judgments directing the entry of a verdict of acquittal in place of a jury's verdict of guilty, were correctly decided, although he pointed out that special leave would be granted only in exceptional cases. A different view has been taken by Murphy J. who, in Cameron v. Holt [1980] HCA 5; (1980) 142 CLR 342, at p 349, said that s.73 of the Constitution does not give jurisdiction to hear an appeal from an acquittal on a criminal charge. With all respect that is a minority view.

19. A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted. In England this can be done on appeal by way of case stated: see Bracegirdle v. Oxley (1947) 1 KB 349 and Reg. v. Dorking JJ., Ex p Harrington (1983) 3 WLR 370, at pp 373-4. In Australia also the procedure of appeal by way of case stated has been held to be available to an aggrieved complainant: Kench v. Bailey [1926] HCA 5; (1926) 37 CLR 375. In addition, however, there is available the more ample remedy of appeal by order to review, and in some of the Australian States an unsuccessful complainant may appeal by this means against the dismissal of a complaint by a magistrate or justices. In the case of quarter sessions in New South Wales, the right of appeal given by the statutory provisions is more restricted. It has been held that once an appeal from a conviction by a magistrate has been upheld, and the conviction has been set aside, the chairman of quarter sessions has no power to state a case, but he may do so when he has announced an intention to allow the appeal and to dismiss the charge, but before he has actually determined the appeal: Reg. v. Diakakis (1952) 53 SRNSW 15; Reg. v. Garnet-Thomas (1974) 1 NSWLR 702. This rather technical result depends primarily on the effect of the relevant legislation, construed in the light of the rule in Benson v. Northern Ireland Road Transport Board. However, quarter sessions have always stood in a rather special position, and the two decisions to which I have referred are of no great assistance for present purposes. An appeal from a decision of a magistrate dismissing a complaint may be brought directly to this Court pursuant to special leave to appeal granted under s.39(2)(c) of the Judiciary Act, and this not uncommonly occurs in constitutional cases: see, for example, Collins v. Charles Marshall Pty. Ltd. [1955] HCA 44; (1955) 92 CLR 529 and Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110. It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices. What is even more important is that if a person convicted in summary jurisdiction does appeal successfully to a Supreme Court under the statutory procedure provided, and secures an order quashing the conviction, there is no doubt of the power of this Court to grant special leave to appeal, allow the appeal and restore the conviction. An example chosen at random of a case where that was done is Samuels v. Bosch [1972] HCA 46; (1972) 127 CLR 517. In Cameron v. Holt, to which reference has already been made, the Court, by a majority, refused special leave to appeal from a decision of a Supreme Court quashing a conviction. It is clear however from the judgments of Stephen and Mason JJ. that they refused special leave on discretionary grounds and not because of any doubt as to the power of this Court to grant special leave (see at pp.347-8); of the other members of the Court Barwick C.J. and Aickin J. would have granted special leave to appeal.

20. In the light of these authorities I cannot accept the view expressed by Sheppard and Morling JJ. in the present case that there is a dearth of English and Australian authorities on the question whether the principle applied in Benson v. Northern Ireland Road Transport Board and Thompson v. Mastertouch TV Service Pty. Ltd. governs the case where an accused person has successfully appealed against his conviction at first instance and the prosecution seeks to appeal from the decision quashing the conviction. The authorities show that appeals of that kind have consistently been entertained by the House of Lords, the Judicial Committee and this Court, and that whenever it has been suggested that the principle in Benson v. Northern Ireland Road Transport Board is applicable to such a case that suggestion has been rejected.

21. Sheppard and Morling JJ. said that they believed that the interpretation of s.24(1)(b) which they accepted was more in accordance with the history and tradition of the common law than the alternative. However there are authorities, additional to those which I have already cited, which support the view that I have endeavoured to express that the rule against double jeopardy does not prevent a higher court from correcting an error into which a lower court has fallen in quashing a conviction. It seems to have been quite well established that where a defendant was convicted by justices, and the conviction was quashed on appeal to quarter sessions for defect of form, certiorari lay on the application of the prosecutor to remove the order of sessions quashing the conviction and to restore the conviction: R v. Allen [1812] EngR 194; (1812) 15 East 333 (104 ER 870); R v. Ridgway (1822) 5 B & Ald 527 (106 ER 1283); R v. Clare Justices (1905) 2 IR 510.

22. Finally, as all the members of the Federal Court recognized, the United States authorities given on the Fifth Amendment to the Constitution, which embodies the rule against double jeopardy, favour the view that "an appellate court's order reversing a conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged": United States v. Wilson [1975] USSC 40; (1974) 420 US 332, at p 345 (43 L. Ed. 2d 232, at p 242). The position which seems to be established in the United States is that the double jeopardy rule does not preclude a second retrial after the reversal of a conviction, provided that the conviction was for trial error and not for evidentiary insufficiency: Burks v. United States [1978] USSC 109; (1977) 437 US 1 (57 L. Ed. 2d 1). The American authorities must be applied with caution, because of the differences between the legal systems of the United States and Australia, but it is significant that although the rule against double jeopardy has constitutional force in the United States, it is not there thought to have the drastic effect which the decision under appeal would attribute to it.

23. The authorities favour the view which in my opinion accords with commonsense and the interests of justice, that if a convicted person secures the quashing of a conviction on an erroneous legal ground, a further appellate court has the power to correct the error of law and to restore the conviction which should never have been disturbed.

24. There can be no doubt that under s.24 of the Federal Court of Australia Act the Federal Court is competent to hear and determine an appeal from a decision of the Supreme Court of the Northern Territory given on an appeal under the Justices Act (N.T.) affirming a conviction. There is in my opinion no reason why it cannot also hear and determine an appeal from a decision given by that Supreme Court quashing a conviction. The fact that Gallop J. conducted the appeal as a rehearing does not affect the position. The appeal given by the Justices Act (N.T.) is not either an appeal to quarter sessions or the successor of or modern equivalent to such an appeal, and if quarter sessions appeals occupy a special position, that does not affect the present question. In any case, the appeal was not from a judgment given on a rehearing, because Gallop J. had not completed the taking of the evidence; he made no adjudication on the facts and his decision was entirely of questions of law.

25. For these reasons I hold that the Federal Court had jurisdiction to entertain the present appeal and that the objection to competency was wrongly allowed.

26. In these circumstances I should normally have proposed that the matter be remitted to the Full Court of the Federal Court, to enable that Court to consider the questions raised by the judgment of Gallop J. However, there are special reasons why in this case, if special leave to appeal is granted, this Court should proceed to express its views on those questions. The complainant made a second application for special leave to appeal to this Court; he sought to appeal directly from the decision of Gallop J., the intention of course being to endeavour to have the decision of Gallop J. reversed by this Court if the appeal to the Federal Court should prove incompetent. In the view that I take it is unnecessary to grant that application for special leave to appeal but on the hearing of that application the questions of law which would have fallen for consideration by the Full Court of the Federal Court were fully argued. They are questions that fall within a short compass and present no great difficulty. Every reason of convenience requires this Court to deal with them, if special leave is granted to appeal from the decision of the Federal Court.

27. The first question raised before Gallop J. was whether the waters in which the respondent allegedly took the fish, viz. the waters of Andranangoo Creek, were specified in a notice published in Gazette No. G34 of 24 August 1979. By s.13(1) of the Fisheries Act (N.T.) as in force at the relevant time, it was provided, inter alia, that:

"The Administrator in Council may, by notice in the

Gazette, declare any waters specified in the notice

to be closed -

...

(e) against the taking of fish of a specified

species

..."

By s.5 of the Fisheries Act -

"'waters' means the waters of the Territory and

includes -

(a) the internal waters of the Territory;

(b) any part of the sea in respect of which

the Legislative Assembly has power to

make laws, under and in accordance with

s.6 of the Northern Territory

(Self-government) Act 1978 of the

Commonwealth, with respect to fisheries;

and

(c) the sea-bed and subsoil beneath any such

waters."

28. The notice in the Gazette was in the following terms:

"I, JOHN ARMSTRONG ENGLAND, the Administrator

of the Northern Territory of Australia, acting with

the advice of the Executive Council, pursuant to

section 13 of the Fisheries Act, declare all waters

to be closed against the taking of fish of the

following species:

Lates calcarifer, commonly known as

"barramundi"; and

Polynemus sheridani, commonly known as

"threadfin salmon"

from 1 October 1979 to 31 January 1980 inclusive."

29. Gallop J. held that the notice was not a valid exercise of the power conferred by s.13(1). He considered that the notice was too vague, in that it did not make it clear whether it referred only to one or to some or all of the kinds of waters specified in the definition in s.5, and further in that the notice and the definition in conjunction did not make it clear what part of the sea is covered by par.(b) of the definition. With all respect I am unable to share these difficulties. Quite clearly the notice refers to all the waters to which s.13 may refer, i.e., to all waters as defined in the definition. If there is any difficulty in defining the limits of that part of the sea which is referred to in par.(b) of the definition (which seems unlikely) that does not cause any problem in the present case, where the waters in which the fish were allegedly taken were the waters of a creek, i.e. internal waters.

30. The second question was whether magpie geese were "protected animals" within s.26 of the Territory Parks and Wildlife Conservation Act (N.T.). That section provides as follows:

"(1) All animals that -

(a) are mammals, birds, reptiles or

amphibians and are -

(i) indigenous to Australia or to

the Australian coastal sea or

the sea-bed and subsoil beneath

that sea; or

(ii) of a kind introduced into

Australia, directly or

indirectly, by Aboriginals

before the year 1788; or

(b) are migratory mammals, birds or

reptiles and periodically or

occasionally visit Australia or the

Australian coastal sea

are protected animals except while they are in

those parts, if any, of the Territory in which they

are, and during those parts, if any, of the year

during which they are, unprotected animals, pests

or prohibited entrants.

(2) Any vertebrate wildlife that is not a

pest or a prohibited entrant is a protected animal

while it is in a park, reserve, sanctuary,

wilderness zone or protected area.

(3) The Regulations may declare, whether with

or without qualification, that an animal is a

protected animal."

31. Section 27(1) provides that the Regulations may declare that an animal is an unprotected animal, a pest or a prohibited entrant, and the definitions in s.9(1) show that the words "unprotected animal", "pest" and "prohibited entrant", mean an animal declared by the Act or Regulations to be an unprotected animal, a pest or a prohibited entrant, while it is such. Section 28(2) of the Act provides:

"Subject to section 26(2), where a declaration

is made under section 27(2) or in pursuance of

section 26(3) or section 27(1), that declaration

has effect according to its tenor to make the

animal the subject of the declaration a protected

animal, an unprotected animal, a pest or a

prohibited entrant, as the case may be, throughout

the Territory or while it is in part only of the

Territory, as the case may be, and for the whole of

the year or for part only of the year, as the case

may be."

32. It may be accepted that magpie geese were not protected animals within sub-s.(1) or (3) of s.26. By reg.24 of 1978 magpie geese were declared to be unprotected animals between 1 August and 31 December 1979, a period which includes the dates on which the offences were allegedly committed. The question then is whether they answer the description of "any vertebrate wildlife" within sub.s(2), assuming that the third question, whether Melville Island, where the alleged offences occurred, was a protected area is answered in the affirmative. It was not suggested that magpie geese were pests or prohibited entrants within s.26(2).

33. The declaration made by reg.24 was effective only for the purposes of s.26(1), because on the proper construction of s.26, sub-ss.(1) and (2) provide alternative descriptions. Subsection (1) describes a class which includes creatures that may be protected animals in some places, or at some times, but not at other places or other times, whereas sub-s.(2) refers to creatures which are protected animals at any time when they are in (inter alia) a protected area. This is made clear by the fact that the provisions of s.28(2) are made subject to s.26(2). Notwithstanding reg.24, magpie geese will therefore be protected animals within s.26(2) if they are comprised in the description "any vertebrate wildlife". Clearly they are vertebrate. "Wildlife" is defined in s.9 to mean:

"(a) animals and plants that are indigenous to

Australia;

(b) animals and plants that are indigenous to the

Australian coastal sea or the sea-bed and sub

soil beneath that sea;

(c) migratory animals that periodically or

occasionally visit Australia or the Australian

coastal sea;

(d) animals and plants of a kind introduced into

Australia, directly or indirectly, by

Aboriginals before the year 1788; and

(e) such other animals and plants as are

prescribed."

The word "animal" means "any member of the animal kingdom (other than man)": s.9(1). The learned judge, relying on the express reference to "birds" in s.26(1) and the omission of that word from the definition of "wildlife", held that birds were not "animals" within the definition of "wildlife" and were therefore not "vertebrate wildlife" within s.26(2). This view was in my opinion incorrect. The definition of "animal" in s.9 makes it plain that the expression "wildlife" is intended to include all living creatures. That this is so is made even more plain by the provisions of par.(c) of the definition of "wildlife", since animals, defined narrowly to exclude birds and fish, could not "periodically or occasionally visit Australia or the Australian coastal sea". For these reasons I would hold that magpie geese were protected animals within the meaning of s.26 of the Act.

34. The final question, whether Melville Island was a protected area, depends on the complicated provisions of a number of interlocking statutes. By s.6 of the Territory Parks and Wildlife Conservation Act it is provided as follows:

"Where, immediately before the commencement of

this Ordinance, an area of land was a protected

area under the Wildlife Conservation and Control

Ordinance, that area continues to be a protected

area as though the declaration was made under this

Ordinance but the declaration may be revoked by

action taken under this Ordinance."

That section refers one back to the Wildlife Conservation and Control Ordinance (N.T.) under which, by s.22, protected areas were described as follows:

"(1) All areas of land which are reserves or

deemed to be reserves within the meaning of the

Social Welfare Ordinance 1964 (except the areas

specified in the Fourth Schedule) are protected

areas.

(2) The Administrator in Council may by

notice published in the Gazette declare an area of

land to be a protected area."

The provision of that section which is relevant for present purposes is that of sub-s.(1), which raises the question whether Melville Island was a reserve within the meaning of the Social Welfare Ordinance 1964. That depends on the effect of a saving clause in s.6(1) of the Social Welfare Ordinance which provided as follows:

"(1) Where land was, at any time prior to the

commencement of this Ordinance, proclaimed or

declared under a law in force at that time in the

Territory -

(a) to be reserved for the use and benefit of

the Aboriginal inhabitants of the

Territory;

(b) to be reserved for the use and benefit of

the Aboriginal native inhabitants of the

Territory;

(c) to be a reserve for Aboriginals; or

(d) to be reserved for the use and benefit of

wards,

that land is a reserve for the purposes of this

Ordinance unless it has ceased to be so reserved or

to be such a reserve by virtue of a later

proclamation or declaration made under a law in

force in the Territory when the later proclamation

or declaration was made."

The question then becomes whether Melville Island was a reserve for the use and benefit of wards prior to the enactment of the 1964 Ordinance.

35. Under s.103 of the Crown Lands Ordinance 1931 (N.T.), as amended, the Governor-General was empowered by proclamation (inter alia) to reserve for such purposes in relation to the Northern Territory as he thought fit any unalienated Crown lands not subject to any right of, or contract for, purchase. By proclamation made on 28 October 1963 the Governor-General did reserve certain Crown lands, including Melville Island, "for the use and benefit of wards as defined under s.6 of the Welfare Ordinance 1953-63". (The name of that Ordinance was later changed to the Social Welfare Ordinance.)

36. The inevitable, if curious, result of these provisions is that Melville Island, having been reserved for the use and benefit of wards in 1963, was a reserve for the purposes of the Social Welfare Ordinance 1964, and therefore a protected area within the Wildlife Conservation and Control Ordinance and the Territory Parks and Wildlife Conservation Act. Gallop J. held that s.6 of the Territory Parks and Wildlife Conservation Act applies only to land which has been made a protected area by declaration, or in other words that s.6 should be read as if the words "so made by declaration" appeared after the words "Wildlife Conservation and Control Ordinance". There is no doubt that the concluding words of s.6 are not happily chosen; they do create a difficulty in the construction of the section. However, the operative words of s.6, which continue the status of an existing protected area, are quite unqualified, and the concluding words do not in my opinion require them to be read down. It was clear that protected areas under the Wildlife Conservation and Control Ordinance need not have been declared as such (see s.22) and if the intention of the framers of s.6 had been to continue as protected areas only some of the lands that were protected areas under the earlier Ordinance, it would have been easy enough to say so directly. The words "as though the declaration was made under this Ordinance" must obviously be read as though the words "the declaration" mean "a declaration", and the words that follow appear intended to enable action to be taken under the Act to undo the effect of s.6, by in effect revoking what was deemed to be a declaration. However, whether or not the final words are effective for that purpose, the difficulty which they create does not introduce any ambiguity into the commencing operative words of the section. In my opinion Melville Island was continued as a protected area by s.6.

37. I accordingly conclude that Gallop J. was wrong in holding that the convictions should be quashed.

38. I would allow the application for special leave to appeal from the Federal Court of Australia (Application D1 of 1983), would allow the appeal and remit the matter to the Federal Court to proceed in accordance with this judgment. I would dismiss the application for special leave to appeal from Gallop J. (Application D2 of 1983).

MASON and BRENNAN JJ. In Thompson v. Mastertouch TV Service Pty Ltd (No 3) [1978] FCA 24; (1978) 19 ALR 547 the Full Court of the Federal Court held that the general words of s.24(1)(a) and (b) conferring jurisdiction upon the Federal Court to "hear and determine appeals" must be read subject to the "well-established and fundamental principle of the common law" that an appeal as of right does not lie ordinarily in a criminal case from a judgment of acquittal pronounced by a superior court on the merits. It therefore held that the Federal Court had no jurisdiction under s.24(1)(a) to entertain an appeal by an informant from a decision after a hearing on the merits by a judge exercising the original jurisdiction of the Court acquitting a company of a charge under s.79 of the Trade Practices Act 1974 (Cth). With reference to the common law principle, Deane J., with whom Smithers and Riley JJ. agreed, said (at p.560):

"The right of the subject which finds expression

in that principle, namely, the right to be spared

the jeopardy of an appeal from an aquittal after a

hearing on the merits of a criminal charge by a

court of competent jurisdiction, is 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 intended."

2. In upholding the respondent's objection to the competency of the Federal Court to hear the appeal in the present case, Sheppard and Morling JJ., who constituted the majority, saw the case as falling within the principle in Mastertouch. Fox J., who dissented, saw the principle in Mastertouch as concerned with acquittals at first instance only and as being inapplicable to cases in which a defendant is convicted at first instance but acquitted on appeal.

3. The decision in Mastertouch has been consistently followed in the Federal Court (see for example Burgess v. John Connell-Mott, Hay and Anderson Pty Ltd [1979] FCA 39; (1979) 25 ALR 467; Wood v. City of Melbourne Corporation [1979] FCA 41; (1979) 26 ALR 449; Gapes v. Commercial Bank of Australia Ltd [1979] FCA 62; (1979) 27 ALR 87; Duff v. The Queen [1979] FCA 83; (1979) 28 ALR 663; Australian Building Construction Employees' and Builders Labourers' Federation v. David Syme & Co Ltd [1982] FCA 43; (1982) 40 ALR 518), though not always without reservation (see Burgess v. John Connell-Mott at pp 479-480; Wood v. City of Melbourne Corporation at p 452). In Henderson v. Pioneer Homes Pty. Ltd. [1979] HCA 55; (1979) 142 CLR 294, while Stephen, Mason and Wilson JJ., along with Aickin J. who dissented, found it unnecessary to embark upon a consideration of Mastertouch, Murphy J. said (at p.300) that the decision was "in accordance with the established principle of interpretation". It is appropriate in the circumstances of the present case that this Court now consider the decision in Mastertouch and the interpretation of s.24(1)(a) and (b) there enunciated.

4. Although the principle of the common law which was invoked by the Federal Court in Mastertouch was expressed to be "well-established and fundamental" its origins were somewhat obscure. This was because the right of appeal from a decision of a court was unknown to the common law (Pollock and Maitland, The History of English Law 2nd ed. (1898) Vol. II at p 664) and is entirely a creature of statute (A-G. v. Sillem [1864] EngR 352; (1864) 10 HLC 704 (11 ER 1200); Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at p 108).

5. Prior to the introduction of the Criminal Appeal Act 1907, which granted a right of appeal to convicted persons, there was in England no right of appeal from either a conviction or an acquittal on an indictment. The methods of review which were available were reserving a case for the Court for Crown Cases Reserved, applying for a new trial when the case was tried in the Court of Queen's Bench and appealing to a court of error by a writ of error (see generally, Stephen, History of the Criminal Law of England (1883) Vol. 1 Ch 10; R v. Wilkes [1770] EngR 32; (1770) 4 Burr 2527, at p 2550 [1770] EngR 32; (98 ER 327, at pp 339-340), per Lord Mansfield). Of these methods only the first, and then only after its formalization by statute (11 & 12 Vict., c.78, the "Crown Cases Act" 1848), was subject to an absolute policy that there could be no review after an acquittal. That was because s.1 of the Crown Cases Act authorized the reservation of a question of law arising at the trial when the person charged was convicted and not otherwise. (See generally Friedland, Double Jeopardy (1969) at pp.285-287 and Stephen, Op. cit., at pp.311-312).

6. It was not until provision was made by statute towards the end of the seventeenth century for the bringing of appeals to Quarter Sessions in proceedings for summary offences that there was any occasion to consider whether an appeal lay from an acquittal (see Frankfurter & Corcoran, "Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury" (1926) 39 Harvard Law Review 917, at pp.927-928). And the question which then arose, a question which has beset the courts on many occasions since, was one of statutory construction: did the statute, expressed though it was in general terms, confer a right of an appeal from an aquittal? In general, these provisions were interpreted as not giving to a prosecutor the right to appeal from the dismissal of a charge. Thus, it has frequently been held that a prosecutor whose charge is dismissed is not thereby a "person aggrieved" or a person who claims to be or feels aggrieved by an order or judgment so as to afford a right of appeal (R v. The Justices of Middlesex [1812] EngR 505; (1812) 16 East. 310 (104 ER 1107); Payne v. The Justices of the Uxbridge Division of the County of Middlesex and the Uxbridge Urban Sanitary Authority (1881) 45 JP 327; Reg. v. The Keepers of the Peace and Justices of the County of London (1890) 25 QBD 357; Foss v. Best (1906) 2 KB 105; R v. Wright; ex parte Bradford Corporation (1907) 6 LGR 89), though such an interpretation is by no means universal. Sometimes the courts have decided that the statutory language evinced a clear legislative intention to permit an appeal by a prosecutor (R v. The Keepers of the Peace and Justices for the County of London (1945) 1 KB 528; cf. R v. Tucker (1824) 3 B & C 544 (107 ER 835)). One example is Davys v. Douglas [1859] EngR 245; (1859) 4 H & N 180 (157 ER 806) where it was decided that the statute, 20 & 21 Vict., c.43, allowed an appeal in cases of dismissal of informations or complaints.

7. The classic statement of the principle of interpretation according to which the courts have acted in these cases was that made by Palles L.C.B. in R (Kane) v. Chairman and Justices of Co. Tyrone (1905) 40 Ir LT 181, where certiorari was granted to quash an order of "conviction" by a Court of Quarter Sessions on the hearing of an appeal from an order of "dismissal without prejudice" by justices sitting in a Court of Petty Sessions. Palles L.C.B., with whom Gibson J. concurred, said (at p.182) "that, before you can appeal against an acquittal, the words must be clear, express, and free from any ambiguity." He held that the language of the particular statutory provision did not confer upon a prosecutor a right of appeal from an acquittal, basing his decision on "the broad principles of the common law" which he expressed (Ibid.) in these terms:

"... that as a rule an acquittal made by a Court of

competent jurisdiction and made within its

jurisdiction, although erroneous in point of fact,

cannot as a rule be questioned and brought before

any other Court."

This statement reflects with more precision the earlier assertion by the Attorney-General in the Duchess of Kingston's case (1776) 20 How. St.Tr. 355, at p.528 that "whenever, and by whatever means, there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops".

8. Likewise, in Reg. v. The Keepers of the Peace and Justices of the County of London, where it was held that a prosecutor whose summons against a person for wilfully obstructing a highway contrary to s.72 of the Highway Act 1835 (5 & 6 Will.4, c.50) had been dismissed was not thereby "aggrieved" and so had no right of appeal under s.105 of that Act, Lord Coleridge C.J., with whom Wills J. agreed, said (at p.360) that the "general principle of law" is that a person who is prosecuted for a breach of the law, if acquitted, "is not to be a second time vexed." The Chief Justice (Ibid.) based his decision on "broad and well-recognised principles of construction":

"One of those is, that a man acquitted is not to be

again proceeded against with respect to the same

matter; another principle is that an appeal is

never given except by statute."

9. In Benson v. Northern Ireland Road Transport Board (1942) AC 520, the House of Lords held that s.24(1) of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland) 1935 did not operate so as to confer upon a prosecutor a right of appeal from a court of summary jurisdiction dismissing a criminal charge and ordering the prosecutor to pay a sum in respect of costs. Section 24(1) provided for appeals in cases other than civil cases:

"... by any party against whom an order is made for

payment of any penal or other sum, or for any term

of imprisonment, or for the estreating of any

recognizance to a greater amount than twenty

shillings."

Viscount Simon L.C., with whom Lord Atkin, Lord Wright and Lord Porter agreed, recalled the insistence of Lord Halsbury L.C. in Cox v. Hakes (1890) 15 App.Cas. 506, at p 522, a habeas corpus case, upon the need for express legislation before the right of personal freedom can be made subject to the delay and uncertainty of appeal and concluded (at p.528) that:

"... very clear statutory language would be needed

to establish, by way of exception to the general

rule, a right of appeal from a decision dismissing

a criminal charge".

10. However, English courts have interpreted legislation so as to permit the prosecutor to appeal by case stated from the dismissal of an information (R v. Newport (Salop) Justices; ex parte Wright (1929) 2 KB 416). By this means perverse and erroneous dismissals have often been corrected, without any suggestion that the double jeopardy rule might have an application (see for example Bracegirdle v. Oxley (1947) 1 KB 349; Gibbons v. Kahl (1956) 1 QB 59; Callis v. Gunn (1964) 1 QB 495). But attempts to quash dismissals by means of certiorari have in general not succeeded - see R v. Simpson (1914) 1 KB 66, where Scrutton J. asserted (at p 75) that "there never has been a case in which an acquittal by a Court of summary jurisdiction has been quashed by certiorari". See also Reg. v. Middlesex Quarter Sessions (Chairman); ex parte Director of Public Prosecutions (1952) 2 QB 758, where certiorari to quash an acquittal at Quarter Sessions founded on a jury verdict was refused. And in Reg. v. Dorking Justices; ex parte Harrington (1983) 3 WLR 370, the Divisional Court in refusing certiorari to quash an acquittal by justices quoted the remarks of Scrutton J. in Simpson and the decision in Middlesex Justices. Robert Goff L.J. said (at p.373):

"Where a defendant has been in jeopardy and has

been acquitted, the court cannot interfere to quash

the acquittal and order a new trial, however

improperly the verdict may have been obtained. The

matter will however be different if there has been

such a mistrial as to render the proceedings a

nullity; because if they are a nullity, the

defendant will not have been lawfully liable to

suffer judgment for the offence charged against

him, and so will not have been in jeopardy."

No distinction was drawn between acquittal by jury verdict and dismissal of a charge by justices.

11. The decision in R v. Tchorzewski (1897) 8 QLJ 79 contradicts the assertion of Scrutton J. in Simpson. In that case the defendant was charged before justices with driving a vehicle at night without lights contrary to a local government by-law. On the hearing of the complaint both parties objected to one of the justices hearing the matter because, as a ratepayer in reduction of whose rates any fine imposed would be paid, he had a pecuniary interest in its outcome. The justice declined to leave the bench and after hearing the evidence the justices dismissed the summons. On an application by the complainant, the Full Court of the Supreme Court of Queensland (Griffith C.J. and Cooper J.) granted certiorari to quash the order of dismissal. Griffith C.J. said (at pp.81-82):

"It is admitted that there is no instance in which

a certiorari has been granted to quash an order of

dismissal, and that is a very strong argument

against granting the writ for that purpose; but,

although it is a strong argument, I do not think it

is a sufficient answer to the argument that where

there is a legal wrong there is some remedy. In

the present case, the complainant was obstructed in

getting the legal right to which he was entitled,

that is, a decision upon his complaint by a

competent tribunal, and he cannot get that right

until this decision by an incompetent tribunal is

got out of the way. Certiorari is the appropriate

remedy for setting aside an order made by a

tribunal that has no authority to make it, and the

pecuniary interest of one of the justices, in that

sense, makes the tribunal incompetent."

However, in Ex parte Schofield; re Austin (1953) 53 SR(NSW) 163 the Full Court of the Supreme Court of New South Wales (Street C.J., Owen and Herron JJ.) refused to grant certiorari to quash the dismissal of summonses by a magistrate, holding that certiorari does not lie to quash an order of acquittal. In so holding, the Court applied Simpson in preference to Tchorzewski.

12. Prior to Federation there seems to have been no provision for an appeal from either a conviction or an acquittal on an indictment in Australia. Soon after the passage of the English Act of 1907, each of the Australian States enacted legislation allowing for appeals by persons convicted on indictment (Criminal Code Amendment Act 1911 (W.A.) s.10; Criminal Appeal Act of 1912 (N.S.W.); The Criminal Code Amendment Act of 1913 (Q.); Criminal Appeal Act 1914 (Vic.); Criminal Appeals Act 1924 (S.A.); Criminal Code 1924 (Tas.) s.401(1)). In the cases of Western Australia and Tasmania provision was also made for appeals against acquittals in respect of verdicts by direction and on questions of law alone (Criminal Code Amendment Act 1911 (W.A.) s.10; Criminal Code 1924 (Tas.) s.401(2)). In New South Wales s.33 of the Crimes (Amendment) Act 1924 amended the Criminal Appeal Act by inserting s.5C which provided for appeals by the Attorney-General from a decision of the Supreme Court or a Court of Quarter Sessions quashing an information or indictment. Several states have subsequently enacted procedures whereby points of law may be raised by the Crown or Attorney-General for determination by the Full Court of the Supreme Court or Court of Criminal Appeal without affecting a verdict of acquittal (e.g. Crimes (Amendment) Act 1951 (N.S.W.) s.7; The Criminal Code and the Justices Act Amendment Act 1975 (Q.) s.34; Crimes (Amendment) Act 1978 (Vic) s.2; Criminal Law Consolidation Act Amendment Act 1980 (S.A.) ss.6 and 7).

13. The course of judicial decisions in Australia on statutory provisions providing for an appeal from orders made in summary proceedings has been less uniform than in England and Ireland. On the one hand it has been held, in line with English authority, that a prosecutor whose information is dismissed is not thereby "aggrieved" by a "conviction or order" within the meaning of s.112 of the Justices Act 1902 (N.S.W.) so as to entitle an application for prohibition to be made under that section to the Supreme Court of New South Wales (Ex parte Kirkpatrick (1916) 16 SR (NSW) 541, at pp 547, 553; Grayndler v. Cunich [1939] HCA 32; (1939) 62 CLR 573). On the other hand there are many instances in which the courts have held that a statute expressed in general terms has conferred a right of appeal from a conviction, relying on some indication of an intention to that effect (see Justices Act 1890 (Vic.) s.141, Rider v. Freebody (1898) 24 VLR 429; Justices Act 1958 (Vic.) s.155(1), Day v. Hunter [1964] VicRp 109; (1964) VR 845; Court of Petty Sessions Ordinance (No. 2) 1930 (A.C.T.) ss.207 and 208, Davies v. Ryan [1933] HCA 64; (1933) 50 CLR 379; Justices Procedure Act 1919-1947 (Tas.) s.152(1), Wilson v. Brownells Ltd. (1949) Tas SR 1; The Justices Acts 1886-1949 (Q.) s.209, Beer v. Toms; ex parte Beer (1952) QSR 116. Cf. Justices Act 1902 (N.S.W.) s.101, Olsen v. Paxino (1905) 22 WN (NSW) 199, Kench v. Bailey [1926] HCA 5; (1926) 37 CLR 375, at pp 378-379, Malone v. Smith (1945) 63 WN (NSW) 54). But the correctness of the principle of the interpretation stated in Tyrone and later in Benson seems always to have been accepted. The principle was accepted by Rich and Williams JJ. in Platz v. Osborne [1943] HCA 39; (1943) 68 CLR 133, at pp 141 and 147, and mentioned by Dixon, Williams and Fullagar JJ. in Keetley v. Bowie [1951] HCA 56; (1951) 83 CLR 516, at p 518.

14. The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate (R v. Weaver [1931] HCA 23; (1931) 45 CLR 321, at p 356, per Evatt J.).

15. It is well settled that the principle of interpretation does not bar the exercise by the Judicial Committee of the Privy Council of its inherent prerogative power to entertain appeals in matters by any party to the proceedings. In Attorney-General for Ceylon v. Kumarasinghege Don John Perera (1953) AC 200, Lord Goddard said (at p 203) that the Privy Council has power to entertain an appeal in any matter, whether civil or criminal, by whichever party to the proceedings the appeal is brought, unless that right is expressly renounced. Although, as was suggested by Isaacs J. in R v. Snow [1915] HCA 90; (1915) 20 CLR 315, at pp 347-349, the Privy Council would seem to have jurisdiction under the Imperial Act 7 & 8 Vict. c.69 of 1844 to hear appeals by the Crown from judgments of acquittal obtained in colonial courts at first instance, there appears to be no reported case in which such an appeal has been entertained. The absence of any record of an appeal to the Privy Council from an acquittal suggests that the Judicial Committee in granting or refusing special leave to appeal would ordinarily be guided by the common law rule that an acquittal after a hearing on the merits will not be called in question. There are, however, several cases in which the Privy Council has entertained appeals by the Crown from judgments and orders of superior courts setting aside convictions (Reg. v. Bertrand (1867) LR 1 PC 520; Reg. v. Murphy (1865) LR 2 PC 35, 535; Reg. v. Coote (1873) LR 4 PC 599; Attorney-General for Ceylon v. Kumarasinghege Don John Perera; Reg. v. Panikkapody Edirimanasingham (1961) AC 454).

16. It has been established by the course of judicial decisions that the appellate jurisdiction of this Court conferred by s.73 of the Constitution is not subject to the common law principles of interpretation, though the Court will, in deciding whether to grant or refuse special leave pursuant to s.35 of the Judiciary Act 1903 (Cth), as amended, in criminal cases regard a judgment of acquittal as a factor favouring the refusal of special leave. As Deane J. reviewed the cases in Mastertouch (at pp.553-555), there is no need for us to traverse the same ground. It is sufficient to refer to Grayndler v. Cunich, at pp 581 and 602, and R v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, where Dixon J. (with whom Rich and McTiernan JJ. agreed) described (at p.516) an application for special leave from a judgment of acquittal as "a rare thing". He went on to draw a distinction between the entry of a judgment of acquittal on appeal and a verdict of acquittal by a jury, a distinction which had been clearly recognized by this Court in Weaver (at pp.332-333, 356) where, as we have seen, Evatt J. referred to the special character of a jury verdict of not guilty. Dixon J. then observed that the Court would not "go behind" a verdict of not guilty. He continued (at pp.516-517):

"We should, however, be careful always in

exercising the power which we have, remembering

that it is not in accordance with the general

principles of English law to allow appeals from

acquittals, and that it is an exceptional

discretionary power vested in this Court."

In saying this his Honour appeared to accept the proposition that the common law principle that there should be no appeal from an acquittal extends to an appeal from a judgment of acquittal on appeal as well as an appeal from a verdict of acquittal or any other acquittal at first instance.

17. Deane J. in Mastertouch distinguished s.73 of the Constitution from s.24(1) of the Federal Court of Australia Act on the ground that the former was a constitutional provision defining the outer limits of the appellate jurisdiction of the High Court within which a legislative power of regulation and exception was conceded, and on the further ground that s.73 referred to "all judgments, decrees, orders and sentences" (emphasis supplied). In our view his Honour was correct in making this distinction.

18. In the event the applicant is unable to gain support from the exercise of the Privy Council prerogative or from the construction given to s.73 of the Constitution by this Court as a ground for interpreting s.24(1) so that it should be read as conferring jurisdiction to entertain appeals from acquittals at first instance. Moreover, the reasoning which underlies the basis of the decisions relating to s.73 involves an acceptance of the principle of interpretation applied in Tyrone and Benson.

19. The applicant submits that the decision in Cockle v. Isaksen [1957] HCA 85; (1957) 99 CLR 155, is inconsistent with the English principle of interpretation and that it was overlooked by the Federal Court in Mastertouch. In Cockle v. Isaksen the Court decided that s.113(3) of the Conciliation and Arbitration Act 1904-1956 (Cth) was valid, the validity of that subsection being the only issue raised in this Court. The case proceeded on the assumption that s.113(1) gave the Commonwealth Industrial Court jurisdiction to entertain an appeal from the dismissal of an information, notwithstanding that the subsection was expressed in quite general terms. The circumstance that the decision that sub-s.(3) was valid was based on this assumption is not an adequate basis for treating the decision as an authority inconsistent with the principle recognized by the English cases.

20. In the result Australian, as well as English and Irish, authority supports the principle of interpretation stated in Tyrone which was endorsed in Benson and applied by the Federal Court in Mastertouch. The main foundation for the principle as it has been expressed is the rule against double jeopardy, though the principle may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings.

21. It is perhaps somewhat surprising that the courts concluded so readily, without discussion of the countervailing factors, that the rule against double jeopardy extended so as to bar an appeal against an acquittal. The thrust of the double jeopardy rule is that no man shall be tried twice for the same offence (Kepner v. United States [1904] USSC 153; (1904) 195 US 100, at p 130). In his dissenting opinion in that case Holmes J. (with whom White and McKenna JJ. concurred) said (at p.134):

"... logically and rationally a man cannot be said

to be more than once in jeopardy in the same cause,

however often he may be tried. The jeopardy is one

continuing jeopardy from its beginning to the end

of the cause. Everybody agrees that the principle

in its origin was a rule forbidding a trial in a

new and independent case where a man already had

been tried once. But there is no rule that a man

may not be tried twice in the same case."

22. The powerful considerations which made it unfair and unjust that a man should be prosecuted twice for the same offence seem to lose some of their force when an appeal is sought to be equated with a second prosecution. A second prosecution for the same offence immediately raises the spectre of persecution. Although the pursuit of a Crown appeal might be carried to the point of persecution, the risk of that occurrence is more remote, if only because the accused would be protected by the courts against an appeal which was instituted mala fides or amounted to an abuse of process and, as already noted, the courts would not go behind a jury's verdict. Moreover, the Crown has a legitimate interest in securing a review of a trial, more particularly if it appears that the trial judge has made an erroneous ruling on a question of law or departed from correct procedures.

23. However, the body of authority to which we have referred is altogether too strong to justify its overthrow. Indeed, the introduction of legislative provisions in many States authorizing Crown appeals on questions of law on the footing that the decision of the Court of Criminal Appeal will leave the acquittal undisturbed makes it impossible now for us to say that the rule against double jeopardy does not extend to an appeal. And once that is accepted it is difficult, if not impossible, to challenge the foundation on which the principle of interpretation is based. Accordingly, we conclude that Mastertouch was rightly decided.

24. The question then is whether the principle extends to deny an appeal by the Crown from a judgment of acquittal by a Court of Criminal Appeal following a successful appeal by the accused against his conviction at first instance. As we have already noted, Dixon J. in Wilkes (at pp.516-517) seems to have thought that this question should be answered in the affirmative. To his Honour's view may be added the judgment of Street C.J. (with whom Owen and Herron JJ. agreed) in Reg. v. Diakakis (1952) 53 SR (NSW) 15, at pp 16 and 19, where his Honour considered that the double jeopardy rule and the principle of interpretation adopted in Benson applied when the Crown sought to appeal under s.5B of the Criminal Appeal Act of 1912 (N.S.W.) where on appeal to Quarter Sessions by the accused from a conviction by a magistrate Quarter Sessions set aside the conviction. Cf. Reg. v. Garnet-Thomas (1974) 1 NSWLR 702. And in Platz v. Osborne Rich J. (at p 141) thought that to remit a case to a magistrate for retrial following a successful appeal against a conviction was to put the defendant in jeopardy twice in respect of the same charge. On the other hand Starke J. asserted (at p.143) that "There is no 'universally recognized constitutional right' against new trials in criminal cases, whether tried summarily or upon indictment".

25. In considering the correctness of this assertion it is necessary to keep in mind the distinction between an appellate court's function in quashing an acquittal and convicting the accused on the one hand and its function in quashing an acquittal and ordering a new trial or rehearing on the other hand. According to decisions of the Supreme Court of the United States which will be discussed later the latter, but not the former, exposes the accused to double jeopardy - the new trial or rehearing, rather than the appeal, constituting the double jeopardy. It is with the former situation that we are directly concerned in the present case.

26. With reference to this situation Australian and English authority is of little assistance. This Court, on allowing an appeal from an order of a Court of Criminal Appeal quashing a conviction on indictment, has affirmed the conviction and remitted the matter to the Supreme Court (Reg. v. Darby [1982] HCA 32; (1982) 56 ALJR 688). See also Attorney-General of New South Wales v. Jackson [1906] HCA 90; (1906) 3 CLR 730; Snow; Weaver; and Samuels v. Bosch [1972] HCA 46; (1972) 127 CLR 517. However, for reasons already discussed the exercise of this Court's appellate jurisdiction is not subject to the common law rule against double jeopardy.

27. Likewise, the Privy Council decisions to which we have referred are not instructive. The same comment may be made in relation to decisions of the House of Lords. It has recognized that there is no bar to its allowing an appeal against a judgment of acquittal by a court exercising appellate jurisdiction, although in so deciding it has acted in accordance with statutory provisions expressly providing for appeals by prosecutors (see for example Criminal Appeal Act 1907 s.1(6), R v. Ball (1911) AC 47; Administration of Justice Act 1960 s.1(b), Attorney-General for Northern Ireland v. Gallagher [1961] UKHL 2; (1963) AC 349; Criminal Appeal Act 1968 s.3(1), Reg. v. Doot (1973) AC 807). These statutory provisions indicate, however, that a further appeal by a prosecutor against a judgment of acquittal given on appeal has not been regarded by the United Kingdom Parliament as unfair and unjust to an accused person.

28. The decisions relating to the availability of certiorari in relation to Quarter Sessions appeals are not decisive. The early cases, R v. Allen [1812] EngR 194; (1812) 15 East 333 (104 ER 870) and R v. Ridgway (1822) 5 B & Ald 527 (106 ER 1283) proceed on the footing that certiorari will issue to remove an order of Quarter Sessions quashing a conviction for defect of form and to restore the conviction or to send the case back to be heard on the merits. They rest on the right of the Crown to remove a case by certiorari and they contain no suggestion that a challenge to an acquittal or a further hearing on the merits following the quashing of the acquittal is barred by the double jeopardy rule. In the later case of R (McGrath) v. Chairman and Justices of Clare (1905) 2 IR 511, where certiorari again issued to quash an order of Quarter Sessions setting aside a conviction before justices on the ground that it was bad on its face, it was said of the earlier decisions that there Quarter Sessions had disposed of the appeals to it on a preliminary objection without hearing the appeals on their merits. Moreover, Palles C.B. observed (at p.514) that the order of Quarter Sessions in Clare was not an order of acquittal. This explanation of the earlier cases avoids inconsistency with later cases in which certiorari was refused on the ground that to grant it would place the accused in jeopardy for a second time, there having been a hearing on the merits.

29. One such case was R (Hastings) v. Justices of Galway (1906) 2 IR 499, where it was held that an order of Quarter Sessions setting aside a conviction by magistrates could not be brought up and quashed by certiorari so that the accused might be tried again for the offence. The decision was based on the double jeopardy rule by Lord O'Brien L.C.J. and Palles C.B. Lord O'Brien (at p.243) quoted the comment of Lord Coleridge in Reg. v. Duncan (1881) 7 QBD 198, at p 199:

"The practice of the Courts has been settled for

centuries, and is that in all cases of a criminal

kind where a prisoner or defendant is in danger of

imprisonment no new trial will be granted if the

prisoner or defendant, having stood in that danger,

has been acquitted."

The Galway case was followed in Simpson where the Divisional Court refused to grant certiorari to quash an order dismissing an information, notwithstanding that the court of summary jurisdiction had not been correctly constituted. Although the reasoning of the members of the court differed to some extent, they were in agreement that in general certiorari should not be granted to quash an acquittal. Allen and Ridgway were decided at a time before the courts elaborated the doctrine of double jeopardy in relation to appeals. The decisions turn on the proposition that the Crown's right to remove the proceeding from Quarter Sessions by certiorari was not taken away by statute and that certiorari issues to correct an error on the face of the record being a defect in form. Later, in Clare, after the double jeopardy rule had become well established, emphasis was given by the court to the circumstance that certiorari issued in order to correct what was a defect in form in a proceeding which involved no hearing on the merits and did not result in an order or judgment of acquittal.

30. It is evident from this examination of the English and Irish authorities that the distinctions which they draw are unsatisfactory and artificial. The distinctions were avoided by the Divisional Court of Queen's Bench in Reg. v. Wolverhampton County Court; ex parte Crofts (1983) 1 WLR 204, where it was held that the double jeopardy rule has no application when certiorari is sought to quash an order of acquittal by a Crown Court obtained by fraud on an appeal from a conviction by justices. Donaldson L.J., with whom Webster J. agreed, observed (at p.207):

"If the Crown Court decision is quashed, and this

will only occur when it is the beneficiary of the

Crown Court decision who has been guilty of the

fraud, the result will be not that the defendant is

twice put in peril, but that he remains convicted

as a result of the first and only occasion upon

which he was put in peril. That seems to me to be

the distinction between this case and Rex v.

Simpson."

This statement reflects a clearer understanding of the policy underlying the rule against double jeopardy and achieves a truer balance between the protection of the defendant as the weaker party in a criminal case and the interests of society in ensuring the due administration of the law. Traditionally it has been thought that unfairness and injustice may result to a defendant from the reversal of an acquittal obtained at first instance but it is difficult to see how these considerations can apply to the quashing of an order reversing a conviction which has already been obtained.

31. The approach taken by the Supreme Court of the United States to the interpretation of the double jeopardy clause of the Fifth Amendment is instructive. In the United States v. Wilson [1975] USSC 40; (1975) 420 US 332, the Supreme Court identified the mischief at which the Double Jeopardy Clause was aimed - the embarrassment, expense and anxiety created by repeated attempts to convict and the inherent possibility that an innocent person might be found guilty. The majority pointed out that these mischiefs are absent when a prosecutor seeks to appeal from a post-verdict ruling of law by a trial judge because the correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the possibility of a further prosecution (p.352). The majority observed (at p.345):

"Although review of any ruling of law discharging a

defendant obviously enhances the likelihood of

conviction and subjects him to continuing expense

and anxiety, a defendant has no legitimate claim to

benefit from an error of law when that error could

be corrected without subjecting him to a second

trial before a second trier of fact."

Upon this basis it described as "well settled" that an appellate court's order reversing a conviction is subject to further review (Ibid.; see also Forman v. United States [1960] USSC 20; (1960) 361 US 416, at p 426). The principles in Wilson have been developed in a number of later cases which need not be examined here. It is sufficient to say that they do not detract from the discussion as set out. (United States v. Jenkins [1975] USSC 38; (1974) 420 US 358; United States v. Martin Linen Supply Co. [1977] USSC 53; (1977) 430 US 564; Lee v. United States [1977] USSC 101; (1977) 432 US 23; Burks v. United States [1978] USSC 109; (1977) 437 US 1; United States v. Scott [1978] USSC 181; (1978) 437 US 82; Tibbs v. Florida [1982] USSC 114; (1982) 457 US 31).

32. The adoption by the United States Supreme Court of the distinction between ordering a new trial, which exposes the defendant to double jeopardy, and restoring the original conviction, which does not, is the outcome of the development of the American concept of double jeopardy enshrined as it is in the United States Constitution. The distinction has some attraction outside the Constitutional sphere. In essence it is directed not so much to the jurisdiction of the second appellate court, as to the order which it may make in the event that the judgment of acquittal by the intermediate court is erroneous. The difference between the two situations is that in one case there is the suggested injustice of a second trial with the attendant risk of conviction whereas in the other there is the risk only of the restoration of the conviction.

33. The fundamental question, however, as it seems to us, is whether once the defendant appeals from a conviction at first instance, thereby setting the appellate process in motion, it is legitimate for the prosecutor by recourse to the same process to have an error on the part of the first appellate court corrected. As Friedland comments, at p.293, once the case is in the appellate hierarchy there is no legitimate reason why the matter should not be determined by the higher court. The exercise, on proper occasions, of the further appellate jurisdiction is important to ensure the due administration of justice in the individual case as well as for the general administration of the criminal law (Bertrand, at p.530).

34. And it is of some significance that in Australia Courts of Criminal Appeal for over half a century have exercised the power to order a new trial on an appeal by a defendant from a verdict of conviction with the consequence that a new trial pursuant to such an order constitutes no violation of the rule against double jeopardy. This circumstance is a relevant consideration in determining whether the concept of double jeopardy as it has developed in this country extends to a new trial ordered by a second appellate court on appeal from a first appellate court when it erroneously entered a judgment of acquittal instead of ordering a new trial.

35. We agree with the Chief Justice, for the reasons he gives, that Gallop J. was wrong in holding that the convictions of the respondent should be quashed, that special leave to appeal from the judgment of the Federal Court should be granted, that that appeal should be allowed, that the matter should be remitted to the Federal Court to proceed in accordance with the reasons of the majority of this Court, and that special leave to appeal from the judgment of Gallop J. should be refused.

MURPHY J. In July 1980 the respondent was convicted by a magistrate, sitting as a Court of Summary Jurisdiction in Darwin, fined and ordered to pay costs and forfeit two boats and associated equipment, on four charges brought by the applicant and relating to events alleged to have occurred in October 1979. The respondent's appeal to the Northern Territory Supreme Court against the convictions and the sentences imposed came before Mr Justice Gallop who referred an application for directions to the Full Court. That Court directed that the appeal be heard "as a rehearing of the issues raised by the notice of appeal", and that the respondent there (Mr Davern) "shall bear the ultimate onus of proof of facts necessary to support the conviction to the criminal standard" but left it to the presiding judge to decide whether to admit further evidence and whether to hear the witnesses giving evidence. Mr Justice Gallop decided that oral evidence should be called on behalf of Mr Davern. After several days' rehearing, but before Mr Davern's case had been concluded, the parties agreed that certain legal issues should be decided, so that in the event of rulings adverse to the prosecution, the case would be shortened as the appeal would succeed without need to hear other evidence for the prosecution or the defence. It was clearly contemplated that if the rulings were favourable to the prosecution the case would proceed on the other issues.

2. These issues were decided against the prosecution; His Honour therefore allowed the appeals and quashed the convictions.

3. Mr Davern appealed to the Federal Court but the respondent objected to the competency of that appeal. A majority of the Full Court of the Federal Court upheld the objection. Now the applicant seeks leave to appeal to this Court against the Federal Court's judgment.



Double Jeopardy Rule

4. It is a golden rule, of great antiquity, that a person who has been acquitted on a criminal charge should not be tried again on the same charge. Its roots have been traced to Greek, Roman and Canon law (see Westen and Drubel, "Toward a General Theory of Double Jeopardy" in (1978) Sup. Ct. Rev. p.81 ff, and Hemmer, "Double Jeopardy Consequences of Dismissals" in (1980) 58 Wash. U. L. Q. p.117 ff ("Hemmer")). The rule is not confined to ancient times or civilizations; it is also well recognised in Anglo-Irish law where it has often been associated with habeas corpus. Both are vital to the protection of personal freedom (see Cox v. Hakes (1890) 15 AC 506 (Cox's case), Lord Halsbury at 522). Lord Dunedin, in Secretary of State for Home Affairs v. O'Brien (1923) AC 603 saw it as "a cardinal principle of the law of England, ever jealous for personal liberty, that when once a person has been held entitled to liberty by a competent Court there shall be no further question" (p.621). In Benson v. Northern Ireland Road Transport Board (1942) AC 520 (Benson's case), the Lord Chancellor Simon referred to The King v. Tyrone County Justices (1905) 40 Ir LTR 181, in which Chief Baron Palles spoke of the elementary principle that "an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court" (p.182), and stated that "the unchallenged and unchallengeable conclusion thus arrived at is really nothing more than an illustration of an extremely important and universally accepted principle of our law, and a principle which has been recognized again and again by the highest authorities both in England and in Ireland" (p.526).

5. The principle extends to every kind of acquittal, whether or not based on a jury verdict (see Benson's case). But it is confined to acquittals; it does not prevent an appeal from an order quashing or setting aside a conviction but ordering a new trial.

6. The principle applies where there is "a hearing on the merits", that is a dismissal based on a determination, correct or incorrect, of the law or facts of the case. The requirement of a hearing on the merits is satisfied even if the decision is based on a legal technicality, or when the prosecution tendered no evidence to support the charge.

7. The rule was carried over to the United States by British colonists and found its way into the United States Constitution in the Fifth Amendment.

8. The principle is widely recognized in Australia, although this Court has declined to apply it to appeals to the Court arising under s.73 of the Commonwealth of Australia Constitution Act and held that such an appeal does lie, except where the acquittal is based on a jury verdict (see The King v. Snow [1915] HCA 90; (1915) 20 CLR 315). In The King v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, Mr Justice Dixon referred to this approach by the Court but he did not, in my view, express any approval of the interpretation. I have never accepted that the Constitution gives a right of appeal to this Court against an acquittal (see Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110; Perre v. Pollitt [1976] HCA 27; (1976) 135 CLR 139; Stoneham v. Ryan's Removals Pty Ltd (1978) 143 CLR 79; Cameron v. Holt [1980] HCA 5; (1979) 142 CLR 342; Smith v. Capewell [1979] HCA 48; (1979) 142 CLR 509). In Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54, in considering the great imbalance in our legal system between the position of the government and the private person I pointed out that one of the common law's best traditions is "its abhorrence of appeals against acquittals" (p.85).

9. Even if there is a constitutional appeal to this Court from an acquittal other than one founded on a jury verdict, it is exceptional. All other appeals are statutory and the legislation creating the appeal must be read in the light of the rule. There is a presumption in favour of the finality of an acquittal (see Keetley v. Bowie [1951] HCA 56; (1951) 83 CLR 516 (Justices Dixon, Williams and Fullagar)). Legislation empowering the granting of appeals in criminal matters will not be read as allowing an appeal against an acquittal unless the language is unmistakeable. General words are insufficient; there must be language which is specifically directed to acquittals. In Thompson v. Mastertouch T.V. Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547 (Mastertouch case), the Federal Court applied this general principle to s.24 of the Federal Court of Australia Act 1976 ("the Act"). In a strongly reasoned judgment, Mr Justice Deane dealt exhaustively with the authorities, distinguished the constitutional appeals and gave full effect to the principle in the reading of the operation of s.24 of the Act. The present application seeks to challenge the correctness of Mastertouch. It would be a reversal of the sound doctrine of centuries to do so: Mastertouch should be approved.

10. However, the application also seeks to erode the principle by contending that it is restricted to appeals from acquittal at first instance.

11. There is a disturbing trend towards erosion of the value of an acquittal. In our criminal justice system the finality of an acquittal is the keystone of personal freedom (see The Queen v. Darby [1982] HCA 32; (1982) 40 ALR 594). A decision to permit the government to appeal against an acquittal presents another undermining of the finality of an acquittal and a serious undermining of personal freedom. It means "that the right of personal freedom ... is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination ... may only be arrived at by the last Court of Appeal" (Lord Halsbury, Cox's case, p.522).

12. Legal proceedings, especially criminal ones, can be an instrument of oppression by governments against their citizens; they can ruin an individual despite the fact that he or she is ultimately acquitted. Even a relatively minor charge can have this effect. It is common knowledge that every year in Australia tens of thousands of citizens plead guilty to minor offences although they dispute their guilt. They do this rather than suffer the cost and inconvenience of the criminal justice process. To add the risk that the prosecution will appeal against an accused person's acquittal adds a new dimension and a further avenue of cost and inconvenience. It is of little concern to the government, as prosecutor, if it prosecutes a defendant once, twice or three times in an effort to secure a conviction. The present case illustrates some of these issues graphically.

13. An artificial distinction should not be drawn between acquittals at first instance and at other stages. The result of a subsequent prosecution appeal is the same. It puts the person in jeopardy after an acquittal.

14. The fact that the acquittal on appeal may have occurred because of what is considered to be a legal error by the acquitting court, is not material. The same could occur whether it is at first instance or on appeal. The purpose of the rule is to protect persons who have been acquitted even by legal error. The person is not to be put in jeopardy after an acquittal, mistaken or not.

15. In the instant case there was a hearing on the merits, although in dealing with an application for costs, Mr Justice Gallop said that he had "not embarked upon a consideration of the merits" but had found that there was no prima facie case "because of the legislation itself and the difficulties of interpretation". That should be understood as meaning he had not considered the factual merits. I agree with the view of Mr Justice Sheppard and Mr Justice Morling that the course adopted by Mr Justice Gallop constituted a hearing on the merits as that expression is understood in the application of the no appeal after acquittal principle.

16. Suppose Mr Justice Gallop had heard the case out on fact and law and then decided to acquit because he disbelieved the prosecution witnesses or because he decided the particular legal issues adversely to the prosecution, or both. The evidence had been given before him and was fresh (even if it happened to coincide with what was given to the magistrate). An appeal against such an acquittal would be completely inconsistent with the principle of no appeal against acquittal. The allowance of an appeal where the acquittal was based on fact alone or on both fact and law, but not on law alone, in such case, would raise artificial distinctions, depending often on arid distinctions between fact and law. The judge was entitled to assess or re-assess the evidence. In this respect the appeal to Mr Justice Gallop was analagous to the traditional appeal to quarter sessions. The effect was that Mr Justice Gallop became the trial court; it was in substance a second trial rather than an appeal. For the purposes of the application of the principle, that is how it should be treated. So that even if the principle were to be held not applicable where an acquittal occurred on appeal, in circumstances where a higher appellate court was in the same relationship to the trial court as was the acquitting appellate court, that is not so here.

17. As I stated at the commencement of the hearing of the application for special leave, in the ordinary course I would not have participated because I have had a close association with the respondent for many years. I have done so only because, as issues of great public importance were raised, the members of this Court who initially considered the application directed that it should be heard by all seven members.

18. In my opinion it is so clear that the majority in the Federal Court were correct, that the application for special leave to appeal should be refused. If it is granted, the appeal should be dismissed.

WILSON J. In these matters I have had the advantage of reading the reasons for the judgement prepared by the Chief Justice. I agree entirely with theose reasons and do not wish to add anything. I concur in the orders proposed by his Honour.

D1 OF 1983

2. DEANE J. This application for special leave to appeal from the Federal Court raises two related and important questions of law. The first involves an attack upon the 1978 decision of a Full Court of the Federal Court of Australia in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (l978) [1978] FCA 24; 38 FLR 397 to the effect that s.24(1)(a) and (b) of the Federal Court of Australia Act 1976 (Cth) ("the Act") should be read as not extending to authorize an appeal against a judgment of acquittal pronounced at first instance in criminal proceedings by a court of competent jurisdiction after a hearing on the merits. The basis of that decision was that there is a general common law rule that a person is entitled to be 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 and that that rule is not, upon proper principles of interpretation, to be swept aside by the general terms of a statute which exhibits no underlying policy in that regard and which contains nothing which clearly and unmistakably indicates that any such effect was intended. The second question is whether the general common law principle precluding an appeal against an acquittal is applicable to preclude an appeal by the prosecution following a successful appeal by the accused from a conviction. If the principle does not extend to preclude such an appeal, there would be no proper basis for reading down the general provisions of s.24(1)(a) and (b) of the Act so as to exclude the power to entertain and determine such an appeal from the jurisdiction which those provisions confer.

3. In the course of my judgment in Mastertouch, I explained in considerable detail the reasons which led me to accept the relevant rule as a fundamental principle of the common law and to reach the conclusion that the provisions of s.24(1)(a) and (b) of the Act should be read as not authorizing an appeal from an acquittal after a hearing on the merits by a competent court. I have reconsidered that reasoning in the light of the helpful argument of counsel in the present case. Such reconsideration has, however, confirmed me in the views which I there expressed. I would therefore resolve the first question against the applicant.

4. The second question was adverted to in Mastertouch (at pp. 404-407) but left open. In the present case, the Federal Court was divided in relation to it. Sheppard and Morling JJ., in a joint judgment, were of the view that the principle in Mastertouch extends to preclude an appeal by a prosecutor to a higher court following a successful appeal by an accused against his conviction at least in a case such as the present where the acquittal in the first appellate court was on an appeal by way of rehearing. Fox J., on the other hand, considered that the principle does not apply where a convicted person himself invokes the appellate process. The careful judgments in the Federal Court canvass the various arguments and demonstrate that what is involved is essentially a choice between two competing points of view in support of each of which decisions and statements of authority can be called in aid. Ultimately, I have come to the conclusion that the preferable view is that, for the purposes of the application of the relevant principle, an acquittal on the merits includes an acquittal by the order of an appellate court of competent jurisdiction on an appeal instituted by an accused against his conviction. In reaching that conclusion, I am influenced by what I see as the rationale of the common law principle precluding appeals from acquittals and by the weight, as distinct from quantity, of authority.

5. The "universal maxim of the common law" that no person is to be brought into jeopardy more than once for the same offence (see Blackstone, Commentaries on the Laws of England, l5th ed. (l8O9), Book 4, p. 335) has been correctly described by Black J. as "one of the oldest ideas found in western civilization" with roots running deep into Greek and Roman times (Bartkus v. Illinois (l959) 359 US l2l, at pp l5l-l52 (3 Law Ed 2d 684, at p 706)). It is reflected in the patristic maxim that "not even God judges twice for the same act". In its primary application, it precludes a person being tried again for an offence of which he has already been convicted or acquitted by a competent court in a completed course of legal proceedings. In its extended application, it operates to preclude at least some appeals from verdicts of acquittal. The "underlying idea" of the rule was said by Black J. (Green v. United States (l957) 355 US l84, at pp l87-l88 (2 Law Ed l99, at p 204)) to be that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence" thereby subjecting him to embarrassment, expense, continuing anxiety and insecurity and "enhancing the possibility that even though innocent he may be found guilty".

6. Any statement of the rationale of the common law rule against double jeopardy is incomplete, however, unless it also takes account of the fact that, at least in common law countries and apart from the exceptional case of a private prosecution, both the prosecutor and the court in a criminal case are essentially emanations of the same entity. Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the state. It is the state that establishes and maintains the judicial system. It is the state that brings an accused person before that judicial system on a charge of an offence against the law of the state. It is in the state's favour that the overwhelming balance of power and resources will ordinarily lie. If, in that context, a competent court in the state's own system rules that the state's charge should be dismissed and makes an order that the person against whom the state has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge. Put another way, the citizen who is told by a competent court of the state that the state's proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the state of new proceedings against him or by reason of an appeal by the state against its own court's decision. That is not, of course, to say that a mistaken decision of law leading to an acquittal should be permitted to stand as a bad precedent; there are many examples of legislative provisions which effectively allow for an appeal on questions of law involved without subjecting the person who has been acquitted by a competent court to renewed jeopardy (see, e.g., Criminal Appeal Act l9l2 (N.S.W.), s.5A; Crimes Act l958 (Vict.), s.45OA; Criminal Code (W.A.), s.693A; Criminal Code (Q.), s.669A(2).

7. It may be arguable, in the context of the independence of the judicial arm of government in at least most common law countries, that a complete prohibition of any appeal from an acquittal pronounced by an appellate court on appeal from a conviction at first instance is inappropriate to be elevated to the status of a constitutional guarantee from which any statutory departure is proscribed. The decisions of the United States Supreme Court limiting the scope of the provisions of the Fifth Amendment may reflect such a point of view. It is not, however, suggested that any principle precluding an appeal from an acquittal enjoys the status of a constitutional guarantee in this country. All that is involved here is the definition of the common law principle which Commonwealth and State parliaments will, in the absence of unambiguous provision to the contrary, be presumed, as a matter of statutory interpretation, to have respected and observed. While it may, as a matter of policy, be easier to attempt to justify legislation allowing an appeal from an acquittal in the case of an acquittal by an appellate court on an appeal by the accused from a conviction than in the case of an acquittal on a trial at first instance, there is no basis to be found in the rationale of that common law principle for confining it to the latter situation.

8. The relevant authorities are extensively reviewed in the judgments in the Federal Court and in other judgments in this Court. I refrain from recanvassing them. For my part, I derive most assistance on the question under consideration from the direct guidance given by Palles C.B. in Rex (Hastings) v. Justices of Galway (l9O6) 2 IR 499 and by Dixon J. (as he then was) in Rex v. Wilkes (l948) 77 CLR 5ll.

9. The Galway Justices Case involved a purported appeal by way of certiorari by the prosecution from an acquittal obtained by the accused on a successful appeal from a conviction in a magistrate's court. The case came before the Irish King's Bench Division after it had absorbed the Court of Exchequer and the bench of four judges included Palles CB whose judgment in Rex (Kane) v. Chairman and Justices of Co. Tyrone (l9O5) 4O Ir LT l8l, at p l82 has been treated as a classic statement of the common law principle precluding an appeal from an acquittal after a hearing on the merits (see, e.g., Benson v. Northern Ireland Road Transport Board (l942) AC 52O, at pp 526-527). In the Galway Justices Case, it was held by a unanimous court that no appeal lay from an acquittal which the accused had obtained on appeal to Quarter Sessions from his conviction before a magistrates' court. Palles C.B. made clear his rejection of an argument advanced on behalf of the prosecution in that case to the effect that "an ordinary reversal on appeal of a conviction by magistrates would not amount to an acquittal" for the purposes of "the essential principle of English law" precluding an appeal from an acquittal after a hearing on the merits (at pp.5O8 and 5O5). It is that very argument, rejected more than seventy-five years ago by one of the great common lawyers of his time, which the present applicant seeks to raise in this Court.

10. Dixon J's remarks in Wilkes have been quoted in other judgments. It is, however, appropriate to make three specific comments in relation to them. First, his Honour was at pains to stress that his comments were directed to a proposed appeal from a "judgment of acquittal ... of the Supreme Court as a court of criminal appeal" which was "contrary to the verdict of the jury and not in accordance with the verdict of the jury" (at p.5l6). Second, as I pointed out in Mastertouch (at pp. 406-407), his Honour's reference to Lloyd v. Wallach (l9l5) 2O CLR 299 and Secretary of State for Home Affairs v. O'Brien (l923) AC 6O3, which were cases involving a discharge from custody obtained from an appellate court pursuant to a writ of habeas corpus, underlines the deliberate character of his inclusion of an acquittal obtained from an appellate court in the scope of the general principle precluding an appeal from a judgment of acquittal after a hearing on the merits. Third, his Honour's comments constituted part of the basis of his conclusion that special leave should be refused and, in view of the fact that McTiernan J. expressed his agreement with Dixon J's reasons, constituted a basis of the Court's decision to that effect. His Honour's view that the common law rule against an appeal from an acquittal extends to a judgment of acquittal pronounced by an appellate court on an appeal from a conviction accords with and reflects the rationale of that general principle. That view, as has been seen, also accords with the considered statement of principle by Palles C.B. in the Galway Justices Case. It is supported by other statements of authority. It should be followed in the present application.

11. Special leave to appeal should be refused. If, contrary to my view, special leave to appeal is granted, the appeal should be dismissed for the reason that the majority of the Federal Court was correct in holding that the Federal Court possessed no jurisdiction to entertain an appeal from the verdict of acquittal in the respondent's favour.

D2 of l983

12. This is an application for special leave to appeal to this Court direct from a judgment of the Supreme Court of the Northern Territory (Gallop J.) upholding an appeal by the respondent from conviction before a magistrate. The application was made in case this Court were to hold, in matter No. D1 of 1983, that the Federal Court of Australia was correct in deciding that no appeal lay to that Court from the judgment of acquittal pronounced by the Supreme Court. In my view, the application should be refused regardless of what conclusion is reached by the majority of the Court on that question. Quite apart from the fact that the application is for leave to appeal from a judgment of acquittal (see Wilkes, at p.5l6), the questions which it is sought to raise on a direct appeal from the judgment of the Supreme Court are of no general importance whatsoever.

DAWSON J. In this matter I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree with those reasons and his conclusions and there is nothing I can usefully add.

ORDER

D1 OF 1983

Application for special leave to appeal granted.

Appeal allowed.

No order as to costs.

Order that the matter be remitted to the Federal Court to proceed in accordance with the reasons for judgment of the majority of this Court.

D2 of 1983

Application for special leave to appeal refused.

No order as to costs.