Section 107 of the Crimes (Appeal and Review) Act 2001 (NSW) does not apply retrospectively to proceedings commenced before its enactment, even where the acquittal occurred after commencement. The finality of a jury acquittal is not an essential characteristic of trial by jury within s 80 of the Constitution, and s 68(2) of the Judiciary Act 1903 (Cth) picks up State provisions permitting Crown appeals from acquittals. Under s 39 of the Crimes Act 1914 (Cth), the prosecution must prove the accused knew the proceedings were federal judicial proceedings; the federal character of the proceedings cannot be treated as a matter of absolute liability or as merely 'definitional'.
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