No appeal lies to the Full Court from a single judge's determination granting or refusing a stay of criminal proceedings on indictment or presentment in Victoria, except as provided in Part VI of the Crimes Act 1958 (Vic).
Later decisions that cite Smith v R
Decisions cited by Smith v R
SMITH, FERGUSON, FORTI, GRIMSHAW AND COBURN v THE QUEEN [1994] HCA 60; (1994) 181 CLR 338,
(1994) 69 ALJR 24, (1994) 125 ALR 385
F.C. 94/054
Number of pages - 14
Criminal Procedure (Vict)
HIGH COURT OF AUSTRALIA
MASON CJ(1), DEANE(2), DAWSON(1), GAUDRON(1) AND McHUGH(1) JJ
CATCHWORDS
Criminal Procedure (Vict) - Supreme Court - Stay of prosecution Wether appeal from order to Full Court - Supreme Court Act 1986 (Vict), ss. 10(2), 14(3) - Constitution Act 1975 (Vict), s. 85(3).
HEARING
1994, BRISBANE, June 28, 29; CANBERRA, November 22ORDER
Appeals allowedand in lieu thereof order that the appeals to that Court be dismissed.
Set aside the judgment of the Full Court of the Supreme Court of Victoria
DECISION
MASON CJ, DAWSON, GAUDRON AND McHUGH JJ These are appeals against a judgment of the Full Court of the Supreme Court of Victoria setting aside a stay of criminal proceedings against the appellants and ordering that their trial proceed.
2. The five appellants were presented for trial upon charges of murder and
various related charges arising out of the death of Graeme
Russell Jensen.
Jensen died as the result of a gunshot wound on 11 October 1988. On that day,
the five appellants, who were members
of the armed robbery squad of the
Victorian police force, attempted, together with three other members of that
squad, to intercept
Jensen in the car park of a suburban shopping centre.
Jensen drove off and several shots were fired at him by two of the policemen,
neither of whom is an appellant. The last shot struck Jensen in the back of
the head, killing him instantly.
3. The appellants, together with the other policemen involved, were presented
for trial following an inquest into Jensen's death.
There were no committal
proceedings. After arraignment, an application was made on behalf of each of
the appellants to Vincent
J for an order permanently staying the proceedings
against them. The ground of each application was that the case which the
prosecution
intended to present could not succeed and that it would be an
abuse of process for the proceedings to continue.
4. Vincent J granted a permanent stay against prosecution for murder or
manslaughter against each of the five appellants, having
concluded that the
proceedings were an abuse of process because they were bound to fail. He
said:
"In the case of each of the accused whose application for a stay
has been granted, I consider that the interests of justice require
that the stay be made permanent. Each of them has, after a period
of five years, been brought before this Court on a count of murder,
the most serious charge known to the law. That course was adopted
after careful consideration and on the basis of a case that, in
relation to each of them, is fundamentally flawed."
5. The prosecution appealed against the order made by Vincent J to the Full
Court. A preliminary objection was taken by the appellants
to the competency
of the appeal, but the Full Court, being of the opinion that the question was
concluded by the decision of that
Court in Boehm v. Director of Public
Prosecutions ((1) [1990] VicRp 43; (1990) VR 494), overruled the objection. The Full Court
went on to allow
the appeal.
6. Special leave to appeal against the Full Court's decision was granted upon
a number of grounds, but we have heard argument at
this stage only upon the
jurisdiction of the Full Court to entertain the appeal from Vincent J. The
parties have consented to have
that aspect of the matter heard separately upon
the basis that, if it is determined in the appellants' favour, it will dispose
of
the appeals presently before this Court.
7. Boehm v. Director of Public Prosecutions was a case in which the trial
judge had refused a stay of criminal proceedings in the
County Court. An
application was then made to a single judge of the Supreme Court for a
declaration that it was an abuse of process
to try the accused and for an
order that the trial be stayed. An application was also made for judicial
review of the decision of
the trial judge. Both applications were refused.
The accused purported to appeal to the Full Court. The Full Court held that
s.14(3) of the Supreme Court Act 1986 (Vict.) precluded an appeal to it from
the decision of the single judge, but went on to say that if he had granted
the stay the Court
would have had jurisdiction to entertain an appeal ((2)
ibid. at 502). It is the latter proposition which the Full Court accepted
in
this case and it is that proposition which the appellants contest.
8. It is convenient at this point to set out s.14(3) of the Supreme Court Act
1986, but it will be necessary to refer to various
other provisions which
preceded it in order to understand the arguments which are put.
Section 14(3)
appears in a section headed
"Restriction on appeals" and provides:
"Except as provided in Part VI of the Crimes Act 1958, an appealSave for appeals by the Director of Public Prosecutions against sentence, Pt VI of the Crimes Act relevantly provides only for appeals to the Full Court by persons convicted on indictment or presentment ((3) See Crimes Act, ss.567, 567A).
does not lie from a determination of the Court constituted by a
Judge made on or in relation to the trial or proposed trial of a
person on indictment or presentment."
9. The view taken in Boehm v. Director of Public Prosecutions was that the
wrongful refusal of a single judge to stay a trial upon
indictment or
presentment was a determination "made in or in relation to the trial or
proposed trial of a person" so that s.14(3)
would, apart from the exception
created for appeals under Pt VI of the Crimes Act, preclude any appeal from
that determination.
However, the Court pointed out that, since the wrongful
refusal to grant a stay might
ultimately form a ground of appeal against
conviction, an appeal to the Full Court was provided for by Pt VI of the
Crimes Act. On the other hand, the Court expressed the
view that, as no
appeal lay under Pt VI of the Crimes Act against a determination by a single
judge to stay a trial, there being
no conviction, s.14(3) did not preclude an
appeal against
such a determination. This view was based upon a construction
of s.14(3)
which the Court expressed as follows ((4) Boehm v. Director
of
Public Prosecutions (1990) VR at 499):
"in s.14(3) the reference to a determination made on or in relationThe reasoning which underlies that construction is not readily apparent, but is to some extent based upon the history of the legislation relating to appeals in criminal matters in Victoria.
to a trial or proposed trial refers only to a determination of that
description from which an appeal lies under Part VI of the Crimes
Act. It follows that if no appeal from a determination lies under
Pt VI, s.14(3) does not operate to exclude any appeal from the
determination given by s.10(2)."
10. Section 42 of the Supreme Court Act 1958 (Vict.) provided:
"Any single Judge sitting in Court may, subject to appeal in civilThe words "subject to appeal in civil or mixed matters" were held to deny an appeal from a single judge in criminal matters ((6) See Re Thompson (1893) 19 VLR 286; Re Marshall (1901) 27 VLR 205; Re Medley (1902) 28 VLR 475; R. v. Watt; Ex parte Slade [1912] VicLawRp 43; (1912) VLR 225; Williamson v. Director of Penal Services [1959] VicRp 34; (1959) VR 205; Tait v. The Queen [1963] VicRp 74; (1963) VR 547 at 549-550; McEwan v. Waldron (No.1) [1976] VicRp 49; (1976) VR 495). There was, of course, a right of appeal in criminal matters under Pt VI of the Crimes Act but that right was confined to persons convicted on indictment or presentment and did not extend to the Crown ((7) In 1970 s.567A was inserted to provide for Crown appeals against sentence). There was no right of appeal even from a conviction by a single judge - for example, for contempt in the face of the court. There was, of course, an appeal by special leave to this Court in those circumstances (8) See, e.g., Keeley v. Mr Justice Brooking [1979] HCA 28; (1979) 143 CLR 162.).
or mixed matters to the Full Court, hear and determine all motions
causes actions matters and proceedings not required under any Act
or Rules of Court to be heard and determined by the Full Court."
((5) The same provision was to be found in s.11 of the Judicature
Act 1883 (Vict.), and s.37 of the Supreme Court Act 1890 (Vict.))
11. In 1984 the legislature sought to remedy the lack of any right to appeal
from a decision of a single judge in criminal matters.
Section 42 of the
Supreme Court Act 1958 was amended ((9) See Supreme Court (Amendment) Act 1984
(Vict.), s.4) to read:
"(1) Any single judge sitting in Court may hear and determine
all motions, causes actions matters and proceedings not required
under any Act or Rules of Court to be heard and determined by the
Full Court.
(2) Unless otherwise expressly provided by this or any other
Act an appeal shall lie from any determination of a single judge
sitting in Court to the Full Court."
12. In Reg. v. Kean and Mills ((10) [1985] VicRp 21; (1985) VR 255) the Full Court held that
s.42 in its amended form should not be construed as
granting a right of appeal
from a ruling
(in that case a refusal to quash a presentment) made by a judge
in the course of a criminal
trial. The Court observed that Pt VI
of the
Crimes Act prescribed a procedure for all appeals from criminal trials upon
indictment
or presentment and said ((11) ibid. at 258):
"If Parliament had intended to depart from the well known and wellThe accused in that case, the Court said, would have a right to appeal to the Full Court if they were convicted on the presentment which the trial judge refused to quash. The Court added ((12) ibid. at 257):
understood procedure for appeals in criminal cases, most of the
provisions of which are of long standing, very clear words would
not only have been expected but would also have been necessary to
achieve the result."
"It is, however, unnecessary to decide finally the full scope of
the right of appeal granted by the new section: it is sufficient
for present purposes to decide that the section does not grant a
right of appeal in cases where such a right is already given by Pt.
VI of the Crimes Act."
13. In 1986 the Supreme Court Act 1958 was replaced by the Supreme Court Act
1986 (Vict.). Section 10 of the new Act was in terms indistinguishable from
those of s.42 of the old Act, but s.14(3) was added.
14. The Full Court in Boehm v. Director of Public Prosecutions expressed the
view that, if s.14(3) of the Supreme Court Act were
given its ordinary and
natural meaning, existing rights of appeal from the decision of a single
judge in criminal matters,
which
were introduced in 1984, would be abolished
((13) Boehm v. Director of Public Prosecutions (1990) VR at 497.). No doubt
that
is
so, but it is clear that s.14(3) of the Act was intended to restrict
rights of appeal which might otherwise exist under s.10(2)
which,
as we have
said, is in similar terms to those of s.42(2) of the previous Act. No doubt
it is also true to say, as the Full
Court
did ((14) ibid. at 499), that
s.14(3) was intended to place in statutory form the law established in Reg. v.
Kean and Mills.
But
that case dealt only with the ruling of a single judge
which, if a conviction ensued, might ultimately be tested on appeal to
the
Full Court under Pt VI of the Crimes Act. The Court did not advert to the
situation where the ruling of a trial judge was adverse
to the Crown. But it
can hardly be assumed
that, had it done so, it would have concluded that the
Crown had a right of appeal against
any ruling made against it at or before
trial - a right not shared by an accused - merely because it had no right of
appeal under
Pt VI of the Crimes Act. It would appear that s.14(3) was
intended to avoid the fragmentation of criminal trials by appeals brought
from
rulings before
or during the course of a trial, whilst allowing appeals where
there was a conviction by a single judge such
as occurred in Keeley
v. Mr
Justice Brooking ((15) [1979] HCA 28; (1979) 143 CLR 162). The observation that s.14(3) was
intended
to enact the decision
in Reg. v. Kean and Mills does not shed a
great
deal of light on the full scope of that sub-section.
15. The only possible way to reach the result reached by the Full Court is to
read the words "Except as provided in Part VI of the
Crimes Act ..." at the
beginning of s.14(3) as saying "Where an appeal is provided directly or
indirectly by Part VI of the Crimes
Act ...". However, the Court did not
adopt that approach and it is understandable that it did not do so. To do so
would have amounted
to rewriting the sub-section and would have exceeded the
proper bounds of statutory interpretation ((16) cf. Stow v. Mineral Holdings
(Aust.) Pty. Ltd. [1979] HCA 30; (1977) 51 ALJR 672 at 675; [1979] HCA 30; 14 ALR 397 at 401; Re Bolton; Ex
parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518).
What the Court
did instead was to
rely on those authorities which allow wide or general words to be
read down so
as to avoid radical
or substantial
change to existing law in the absence of a
clear contrary intention ((17) Union of
South Africa (Minister of Railways
and
Harbours)
v. Simmer and Jack Proprietary Mines (1918) AC 591 at 596; Mixnam's
Properties Ltd.
v. Chertsey Urban District Council
(1965) AC
735 at 751).
They said ((18) Boehm v. Director of Public Prosecutions (1990) VR at 499):
"We are satisfied that Parliament did not intend the words 'inThe Court purported to read down the words "a determination ... in relation to the trial or proposed trial of a person" and to apply them to a determination to refuse a stay but not to a determination to grant a stay for the reason that in the former case the refusal might ultimately constitute a ground of appeal under Pt VI of the Crimes Act whereas in the latter case there could be no such appeal.
relation to' to have their widest possible meaning and therefore it
is necessary to ascertain what limited meaning they are intended to
have".
16. But in truth the Court did not read down the words "in relation to"; it
merely gave them a selective application, treating a
determination refusing a
stay as "a determination ... made in or in relation to the trial or proposed
trial of a person" but treating
a determination granting a stay as not falling
within that description. In construing s.14(3) in that way, the Court was
just as
much rewriting the sub-section as it would have done had it attempted
to alter its opening words. It was equally impermissible as
an exercise in
statutory interpretation.
17. It follows, in our view, that s.14(3) must be given its ordinary meaning
and that the Full Court was wrong in Boehm v. Director
of Public Prosecutions
in saying ((19) ibid. at 502) that "(i)f the judge of this court grants a
stay, as no appeal against that
lies under Pt VI of the Crimes Act, an appeal
against the determination lies under s.10(2)."
18. In this Court the Crown advanced for the first time submissions based
upon ss.85(3) and (5) of the Constitution Act 1975 (Vict.). Section 85 deals
with the powers and jurisdiction of the Supreme Court of Victoria. Originally
sub-s.(2) provided
that the Court should have the powers and jurisdiction of
the courts at Westminster. Sub-section (3) provided:
"The Court and the Judges of the Court shall in addition have and
may exercise such jurisdiction (whether original or appellate) and
such powers and authorities as are now prescribed by any Act as
belonging to or exercisable by the Supreme Court of Victoria or the
Judges thereof."
19. The Supreme Court Act 1986, in addition to introducing s.14(3), amended
((20) Supreme Court Act 1986, s.132) the Constitution Act 1975 by repealing
s.85(2) and substituting for s.85(3) the following provision:
"(3) The Court has and may exercise such jurisdiction (whether
original or appellate) and such powers and authorities as it had
immediately before the commencement of the Supreme Court Act 1986."
20. The argument based upon s.85(3) is that, by virtue of that sub-section,
the appellate jurisdiction of the Supreme Court remained
unrestricted by
s.14(3) of the Supreme Court Act 1986. That argument is based upon the
assumption that, following upon the decision
in Reg. v. Kean and Mills, the
Full Court had, under
s.42(2) of the Supreme Court Act 1958, power to
entertain appeals from a single
judge in criminal matters in any case where
there was no ultimate appeal under Pt VI of the Crimes Act. There is no need
to examine
the correctness of that assumption. In our view the argument fails
in its basic proposition, namely,
that if there is conflict between
s.14(3) of
the Supreme Court Act 1986 and s.132 of the same Act (which substituted the
new s.85(3) of the Constitution Act), s.132 (and hence s.85(3)) should
prevail.
21. In our view, an opposite conclusion is dictated by the principle that
where there is a conflict between general and specific
provisions, the
specific provision prevails (generalia specialibus non derogant). That
principle is based upon the presumed intention
of Parliament and has, we
think, a particular application where the conflict arises from different
sections in the same Act ((21)
See Perpetual Executors and Trustees
Association of Australia Ltd. v. Federal Commissioner of Taxation [1948] HCA 24; (1948) 77
CLR 1 at 29.).
But even if, because s.132 merely amends the Constitution Act
1975, the conflict is regarded as arising between two separate Acts, the
principle is just as applicable and there is no reason
why regard may not be
had to the common origin of the conflict, namely, the Supreme Court Act 1986.
Nor has any reason been advanced
why the status of the amendment introduced by
s.132 as an amendment of the Constitution Act 1975 should lead to any
different result. It is not suggested that the Supreme Court Act 1986 did not
satisfy the requirements
of the Constitution Act 1975 for the amendment of its
provisions ((22) Constitution Act, s.18). It is but common sense that
Parliament having before it two apparently conflicting sections at the same
time cannot
have intended the general provision to have deprived the specific
provision of effect ((23) See Refrigerated Express Lines (A/Asia)
Pty. Ltd. v.
Australian Meat and Live-Stock Corporation [1980] FCA 38; (1980) 29 ALR 333 at 347 per Deane
J). It follows, in our view, that to
the extent that there is any apparent
conflict between
s.14(3) of the Supreme Court Act 1986, which deals
specifically with restrictions
on appeals, and s.85(3) of the Constitution Act
1975, which deals generally with jurisdiction, the former must prevail.
22. A further argument was based upon the non-compliance of the Supreme Court
Act 1986 with the requirements of s.85(5) of the Constitution Act 1975. That
sub-section was a new provision and was added by s.4 of the Constitution
(Jurisdiction of Supreme Court) Act 1991 (Vict.). The section provides:
"A provision of an Act, other than a provision which directlyThe submission was that, although it was not introduced until 1991, s.85(5) applies to all Victorian legislation whether passed before or after 1991, including the Supreme Court Act 1986. It was submitted that this has the result that s.14(3) of that Act is of no effect because it purports to repeal, alter or vary s.85(3) and does not comply with s.85(5). It was argued that so to construe s.85(5) was not to give it retrospective effect. That argument was put in an attempt to avoid the common law rule that a statute ought not be given a retrospective operation affecting rights or obligations unless the language of the statute expressly or by necessary implication requires such a construction ((24) See Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267; Rodway v. The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518.). But it is unnecessary to consider the question of retrospectivity. For the reasons given above, as a matter of construction any conflict between s.14(3) of the Supreme Court Act 1986 and s.85(3) of the Constitution Act 1975 on the face of those provisions is to be resolved in favour of the former and, that being so, s.14(3) does not purport to repeal, alter or vary s.85(3), and s.85(5) has no application.
repeals or directly amends any part of this section, is not to be
taken to repeal, alter or vary this section unless -
(a) the Act expressly refers to this section in, or in relation to,
that provision and expressly, and not merely by implication, states
an intention to repeal, alter or vary this section; and
(b) the member of the Parliament who introduces the Bill for the
Act or, if the provision is inserted in the Act by another Act, the
Bill for that other Act, or a person acting on his or her behalf,
makes a statement to the Council or the Assembly, as the case
requires, of the reasons for repealing, altering or varying this
section; and
(c) the statement is so made -
(i) during the member's second reading speech; or
(ii) after not less than 24 hours' notice is given of the
intention to make the statement but before the third reading of the
Bill; or
(iii) with the leave of the Council or the Assembly, as the case
requires, at any time before the third reading of the Bill."
23. For these reasons these appeals should be allowed.
DEANE J The background facts and the issues involved in these appeals are set out in the judgment of Mason CJ, Dawson, Gaudron and McHugh JJ. It is unnecessary that I repeat them. Were it not for s.132(e) of the Supreme Court Act 1986 (Vict.), I would agree with their Honours that the effect of s.14(3) of that Act was that the Full Court of the Supreme Court of Victoria lacked jurisdiction to entertain the appeals to it from the orders of Vincent J granting permanent stays of the criminal proceedings against the appellants. Unlike Mason CJ, Dawson, Gaudron and McHugh JJ, however, I consider that, to the extent that there is inconsistency between s.14(3) and s.132(e) of the Supreme Court Act, the latter provision (i.e. s.132(e)) must prevail.
2. The Colony of Victoria attained the status of a self-governing Colony with
responsible government pursuant to the statute known
as the Constitution Act
1855 (Vict.) a. The Bill for that statute was passed by the Legislative
Council of the Colony in 1854 but reserved "for the
Signification of Her
Majesty's Pleasure". By the Victoria Constitution Act 1855 (Imp.) ((25) 18
and 19 Vict. c.55.) ("the 1855 Imperial Act"), the Imperial Parliament
authorized Her Majesty in Council
to assent to the Bill ("the reserved Bill")
in the amended form set out in Schedule 1 to that Act. Section V of the 1855
Imperial
Act provided that the reserved Bill, as so amended, took effect in
Victoria upon its being proclaimed by the Governor thereof. Upon
that
proclamation ((26) On 23 November 1855), the amended reserved Bill ("the 1855
Constitution") operated as an Act of the Colonial Legislature. Its operation
as such was, however, by virtue of the direct provision of the 1855
Imperial
Act.
3. Section 1 of the 1855 Constitution vested legislative power for the Colony
in the Sovereign acting with the advice and consent of a new Legislative
Assembly and a reconstituted
Legislative Council. Section 60 provided that
the Legislature of Victoria, as so constituted, should have full power and
authority to repeal, alter or vary all or
any of the provisions of the 1855
Constitution and to substitute other provisions in lieu thereof subject to the
conditions that certain designated bills ((27) i.e. any Bill by
which an
alteration in the constitution of the Legislative Council or Legislative
Assembly or in the salary or other emoluments of
certain Government officials
might be made.) be passed with the concurrence of an absolute majority of each
of the two Houses of
the Legislature and be reserved for the signification of
Her Majesty's pleasure. Section IV of the 1855 Imperial Act provided:
"It shall be lawful for the Legislature of Victoria to make Laws
altering or repealing all or any of the Provisions of the said
reserved Bill, in the same Manner as any other Laws for the good
Government of the said Colony, subject, however, to the Conditions
imposed by the said reserved Bill on the Alteration of the
Provisions thereof in certain Particulars until and unless the said
Conditions shall be repealed or altered by the Authority of the
said Legislature."
4. The Constitution Act 1975 (Vict.) ("the 1975 Constitution"), which was
passed by the requisite absolute majority of both Houses of the Victorian
Parliament and (having been reserved) received
the Royal Assent, replaced the
1855 Constitution. Unlike the 1855 Constitution, the 1975 Constitution, in Pt
III, accorded independent constitutional status and direct protection to the
Supreme Court of Victoria (referred to as "the Court").
Section 85(1) of the
1975 Constitution, which is in Pt III, reads:
"Subject to this Act the Court shall have jurisdiction in or inSection 18(1) of the 1975 Constitution provides that, subject to s.18(2), the Parliament of Victoria "may by any Act repeal alter or vary all or any of the provisions of this Act and substitute others in lieu thereof". Up until its amendment by the Constitution (Jurisdiction of Supreme Court) Act (Vict.) in 1991, s.18(2) relevantly provided:
relation to Victoria its dependencies and the areas adjacent
thereto in all cases whatsoever and shall be the superior Court of
Victoria with unlimited jurisdiction."
"It shall not be lawful to present to the Governor for HerSection 18(2)(b) of the 1975 Constitution was amended in 1991 ((28) Constitution (Jurisdiction of Supreme Court) Act 1991 (Vict.), s.5(1)), by the insertion of ", except section 85," after "Part III" in that paragraph. The same 1991 Act inserted in the 1975 Constitution ((29) ibid. s.5(2)) a new s.18(2A) providing that "(a) provision of a Bill by which section 85 may be repealed, altered or varied is void" unless "passed with the concurrence of an absolute majority" of each House and a new s.85(5), (6), (7) and (8) imposing further procedural requirements to be observed in relation to any indirect repeal, alteration or variation of s.85 ((30) ibid. s.4). Those 1991 amendments can, however, be disregarded since, in my view, they had no effect upon the jurisdiction of the Full Court in the present cases ((31) An argument advanced on behalf of the respondents that s.85(5) had a retrospective effect is clearly unsustainable). Accordingly, references to s.18(2) in this judgment are to the form in which it existed at the time of the enactment of the Supreme Court Act in 1986.
Majesty's assent any Bill -
...
(b) by which this section, ... Part III., ... or any provision
substituted for any provisions therein contained may be repealed
altered or varied -
unless the second and third readings of such Bill shall have been
passed with the concurrence of an absolute majority of the whole
number of the members of the Council and of the Assembly
respectively."
5. Were it not for the provisions of the Colonial Laws Validity Act 1865
(Imp.) ((32) 28 and 29 Vict. c.63) and the decisions in
Attorney-General
(N.S.W.) v. Trethowan ((33) [1931] HCA 3; (1931) 44 CLR 394; (1932) AC 526), it might have
been arguable that
s.18(2)'s restriction
on the exercise of the powers of the
Victorian Parliament to amend Pt III of the 1975 Constitution was either
invalid or ineffective by reason of the inability of the Victorian Parliament
to impose restrictions on the exercise by
a subsequent Parliament of the
legislative powers conferred upon it by the 1855 Imperial Act. There would
have been some obvious
problems about such an argument ((34) See, e.g.,
Attorney-General (N.S.W.) v. Trethowan (1931) 44 CLR at 416-417, 429),
including
the fact that s.IV of the 1855 Imperial Act (see above) had
expressly contemplated both the repeal of the 1855 Constitution and the
alteration of its entrenchment provisions. It is, however, unnecessary to
pursue those problems since Trethowan's Case establishes
((35) See ibid. at
417-420, 423-424, 429-433; (1932) AC at 539-541) that the 1855 the 1855
Imperial Act, while remaining as a link
in the historical chain supporting the
legislative powers of the Victorian Parliament under the 1975 Constitution
((36) cf. Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 at 251), was relevantly
overridden by s.5 of the Colonial Laws Validity
Act which
reads:
"Every Colonial Legislature shall have, and be deemed at all TimesIn that regard, it should be mentioned that I consider that s.18(2) is, for the purposes both of the proviso to s.5 of the Colonial Laws Validity Act and of s.6 of the Australia Act 1986 (Cth) ((37) Act No.142 of 1985; see also the Australia Act 1986 (U.K.), s.6), a law "respecting the ... powers or procedure" of the Victorian Parliament which prescribes the "manner and form" to be observed in the enactment of the bills to which it applies. The consequence of that is that neither of those statutes undermined the effectiveness of s.18(2) to impose its special procedural requirements in relation to amendment of either its own provision or the provisions of s.85(3) ((38) See Attorney-General (N.S.W.) v. Trethowan (1931) 44 CLR at 418, 432-433; (1932) AC at 539-540; Victoria v. The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 163-164). In the result, s.18(2) was, at the time of the enactment of the Supreme Court Act in 1986, valid and effective to confer upon the provisions of Pt III of the 1975 Constitution, including s.85(3), the special status of constitutionally entrenched or controlled provisions ((39) See, generally, McCawley v. The King [1920] HCA 11; (1920) 28 CLR 106 at 123-124, (1920) AC 691 at 712; Attorney-General (N.S.W.) v. Trethowan [1931] HCA 3; (1931) 44 CLR 394).
to have had, full Power within its Jurisdiction to establish Courts
of Judicature, and to abolish and reconstitute the same, and to
alter the Constitution thereof, and to make Provision for the
Administration of Justice therein; and every Representative
Legislature shall, in respect to the Colony under its Jurisdiction,
have, and be deemed at all Times to have had, full Power to make
Laws respecting the Constitution, Powers, and Procedure of such
Legislature; provided that such Laws shall have been passed in such
Manner and Form as may from Time to Time be required by any Act of
Parliament, Letters Patent, Order in Council, or Colonial Law for
the Time being in force in the said Colony."
6. It is in the above context that one must determine the relationship
between s.14(3) and s.132(e) of the Supreme Court Act. The
purpose of that
Act was, as expressed in its first section, "to amend and consolidate the law
relating to the Supreme Court"
and
"to amend the law of Victoria insofar as it
relates to the procedure of the Supreme Court". It contains a variety of
provisions
defining both the appellate and the original jurisdiction of the
Supreme Court. Among those provisions are s.10 and s.14(3) which
read:
"10. (1) The Court constituted by a Judge may hear and determineAs I indicated at the commencement of this judgment, I consider that the effect of s.14(3) would, if it stood alone, be to deprive the Full Court of any jurisdiction which it would otherwise have possessed to entertain the appeals to it in the present cases. Section 14(3) of the Supreme Court Act must, however, be read with s.132(e) of the same Act. In terms, s.132(e) amended Pt III of the 1975 Constitution by substituting a new s.85(3). The original s.85(3) had read:
all matters, whether civil or criminal, not required by or under
this or any other Act or the Rules to be heard and determined by
the Full Court.
(2) Unless otherwise expressly provided by this or any other Act,
an appeal lies to the Full Court from any determination of the
Court constituted by a Judge.
14. ...
(3) Except as provided in Part VI of the Crimes Act 1958, an appeal
does not lie from a determination of the Court constituted by a
Judge made on or in relation to the trial or proposed trial of a
person on indictment or presentment."
"The Court and the Judges of the Court shall in addition have andThe new s.85(3) reads:
may exercise such jurisdiction (whether original or appellate) and
such powers and authorities as are now prescribed by any Act as
belonging to or exercisable by the Supreme Court of Victoria or the
Judges thereof."
"The Court has and may exercise such jurisdiction (whether originalIt is common ground that s.132(e) was enacted in accordance with the procedural requirements of s.18(2) of the 1975 Constitution in its then form.
or appellate) and such powers and authorities as it had immediately
before the commencement of the Supreme Court Act 1986."
7. It is arguable that the new s.85(3) was directed to preserving the
appellate jurisdiction of the Supreme Court only in so far as appeals from
other courts or tribunals
to that court are concerned. On that approach, the
new s.85(3) of the 1975 Constitution would have nothing to say to s.14(3) of
the Supreme Court Act's operation with respect to internal appeals from a
single Judge of the Supreme Court to the Full Court.
However, in the context
of what was intended to be a "plain English" enactmentstatute ((40) See second
reading speech, Victoria,
Legislative Assembly, Parliamentary Debates
(Hansard), 23 October 1986 at 1506.), that approach would seem to be an unduly
narrow
and technical one which is not supported by the ordinary meaning of the
language used, by the distinction drawn, in both the original
and the new
s.85(3), between "original" and "appellate" jurisdictions or by the
distinction drawn, in the original s.85(3), between powers and authorities
belonging to or exercisable by "the Supreme Court of Victoria" and those
belonging to or exercisable
by "the Judges thereof".On balance On balance, it
appears to me that the express reference in s.85(3) to "appellate"
jurisdiction must be construed as encompassing the appellate jurisdiction of
the Full Court in relation to appeals
from a single Judge of the Supreme Court
as well as appeals from other courts or tribunals. That being so, there is
inconsistency
between the words of s.85(3) and any provision of the Supreme
Court Act which would deprive the Full Court of jurisdiction which it
possessed "immediately before
the commencement of the Supreme Court Act 1986"
to entertain such appeals. It follows that such inconsistency exists between
the
terms of the new s.85(3) of the 1975 Constitution and those of s.14(3) of
the Supreme Court Act at least to the extent that, immediately before the
commencement of that Act, the Full
Court possessed jurisdiction to entertain
an appeal from the Supreme Court constituted by a single Judge in cases such
as the present.
To the extent that such inconsistency
exists, it necessarily
reflects inconsistency between two different provisions of the Supreme
Court
Act, namely, s.14(3) and s.132(e) (which substituted the new s.85(3) in the
1975 Constitution).
8. As has been seen, s.132(e)'s validity depends upon the fact that it was
enacted in accordance with the then applicable special
requirements of s.18(2)
of the 1975 Constitution. The new s.85(3), which s.132(e) inserted in that
Constitution, was intended by the Parliament to enjoy the special status of an
entrenched or controlled constitutional provision, that is to say,
the status
of a "special" provision in respect of which limitations are imposed upon the
power of the Victorian Parliament "to express
and carry out its purpose in the
ordinary way" ((41) See McCawley v. The King (1920) 28 CLR at 124; (1920) AC
at 712; Bribery Commissioner
v. Ranasinghe [1964] UKPC 1; (1965) AC 172 at 197.). In that
context, inconsistency between s.132(e) and an ordinary provision of the
Supreme Court
Act cannot be resolved by a simple application of the ordinary
rules of statutory construction for determining inconsistency between
co-ordinate provisions of the same statute without regard to s.132(e)'s status
as a special constituent provision enacted in conformity
with the special
constitutional requirements of manner and form applicable to it by reason of
its operation as such. Rather, the
prima facie presumption must be that it
was the legislative intent that any inconsistency between s.132(e) and any
ordinary provision
of the same Act should be resolved in favour of s.132(e).
There is nothing in the content of s.132(e), s.14(3) or any other provision
of
the Supreme Court Act which rebuts that prima facie presumption in so far as
any inconsistency between s.132(e) and s.14(3) is
concerned. To the contrary,
consideration of the overall content of that Act seems to me to confirm that
it was the legislative
intent that s.132(e) would, by inserting s.85(3) in the
1975 Constitution, ensure that the various provisions of the Supreme Court Act
amending, reorganizing and consolidating the law relating to the Supreme
Court
did not abolish any appellate or original jurisdiction
which either the Full
Court or the court constituted by a Judge would
otherwise possess. Moreover,
the proceedings in the Victorian
Parliament to which reference may be made
pursuant to s.35(b)(ii) of the Interpretation of Legislation Act 1984 (Vict.),
support the inference of such a legislative intent at least in so far as the
appellate jurisdiction of the Full Court is
concerned ((42) See the discussion
of the relevant parliamentary proceedings in Boehm v. Director of Public
Prosecutions [1990] VicRp 43; (1990) VR
494 at 497-498.).
9. It follows that the effect of s.132(e) of the Supreme Court Act was to
override and nullify s.14(3) to the extent that s.14(3)
would otherwise
deprive the Full Court of any jurisdiction which it possessed, immediately
before the commencement of that Act, to
entertain the appeals from a single
Judge in the present cases. Immediately before that commencement, s.42 of the
Supreme Court Act
1958 (Vict.) (which had been introduced in 1984) provided:
"(1) Any single judge sitting in Court may hear and determine allAt least prima facie, that section conferred jurisdiction upon the Full Court to hear and determine an appeal from a single Judge granting a permanent stay in a case such as the present cases.
motions, causes actions matters and proceedings not required under
any Act or Rules of Court to be heard and determined by the Full
Court.
(2) Unless otherwise expressly provided by this or any other Act
an appeal shall lie from any determination of a single judge
sitting in Court to the Full Court."
10. Shortly after s.42 in that form became part of the Supreme Court Act
1958, the Full Court of the Supreme Court of Victoria,
in Reg. v. Kean and
Mills ((43) [1985] VicRp 21; (1985) VR 255), held that s.42, while undoubtedly giving a right
of appeal to the Full Court "where
none existed" before, did not
give a right
of appeal in cases where a right of appeal to the Full Court sitting as a
Court of Criminal
Appeal was "already given
by Pt VI of the Crimes Act (1958
(Vict.)) and that it should probably not be construed as granting a right
of
appeal in any case where a right of appeal is
already given by some other
statutory provision" ((44) ibid. at 257). In that case,
the Full Court held
that an accused person,
who had applied for an order quashing a presentment,
had no immediate right of appeal
under s.42 from a decision of a single Judge
of the Supreme Court rejecting the application. The whole basis of the
decision was,
as the judgment makes plain, that the accused
would, in due
course if convicted, be entitled to argue that the presentment should
have
been quashed on an appeal from his conviction
under Pt VI of the Crimes Act.
Regardless of whether the reasoning and decision
of the Full Court in Reg. v.
Kean and Mills limiting the scope of s.42 of the Supreme Court Act 1958 in
that way should be accepted,
it is apparent that that reasoning had no
application to an appeal by the Crown from a decision of
a single Judge
granting a permanent
stay of criminal proceedings since no appeal from such a
decision could ever have been brought
either immediately or subsequently
(i.e.
after verdict) by the Crown under Pt VI or any other statutory provision.
Indeed, the reasoning of the Full Court in Reg. v.
Kean and Mills with its
emphasis upon the need
to avoid "duplicating rights of appeal where rights
already exist" ((45) ibid. at
259) would arguably would support, rather than
deny, the existence of the jurisdiction of the Full Court in the present cases
immediately
before the commencement of the Supreme Court Act 1986. Certainly,
that was clearly the view of the Full Court in the subsequent case
of Boehm v.
Director of Public Prosecutions ((46)
(1990) VR at 497-502).
11. Nor, in my view, was there any acceptable basis for cutting down the
plain words of s.42 of the Supreme Court Act 1958 so as
to exclude an appeal
by the Crown from an order granting a permanent stay of criminal proceedings.
It is true that such an
appeal
can, in some respects, be loosely compared to
an appeal by the Crown against an acquittal. There are however important
distinctions
between the two kinds of appeal, and the common law's abhorrence
of a Crown appeal against acquittal or sentence does not extend
to an appeal
by the Crown against a permanent stay of criminal proceedings which has been
granted on the application of an accused
((47) See the comments of Mason CJ in
Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23 at 32-33 and the cases there
cited. Examples
of cases in which a permanent stay of criminal proceedings
ordered
by a trial judge has been overturned on appeal
include Kolalich
v.
Director of Public Prosecutions (N.S.W.) [1991] HCA 47; (1991) 173 CLR 222 and Williams v.
Spautz [1992] HCA
34; (1992) 174 CLR 509 (where the High Court reversed
the Court of Appeal
decision).). Nor is an appeal by the Crown from an order
granting a stay of a
prosecution truly comparable to
the institution of new and technically
different proceedings after a stay has
been granted and upheld on appeal of
proceedings in
respect of substantially the same conduct ((48) cf. Walton v.
Gardiner [1992]
HCA 12; (1993) 177 CLR 378).
12. Accordingly, I consider that the Full Court was correct in concluding
that it had jurisdiction to hear and determine the appeals
to it in the
present cases.