Griffiths v The Queen

137 C.L.R.]
GRIFFITHS
THE QUEEN
OF AUSTRALIA.
[HIGH COURT OF AUSTRAUA.]
AND
APPELLANT;
RESPONDENT.
293
ON APPEAL FROM THE SUPREME COURT OF
NEW SOUTH WALES.
Criminal Law (NS. W.)-Sentence-Crown-Appeal-Plea of guilty-Plea accepted
by judge-Accused remanded for sentence in twelve months on good behaviour
bond- Whether convicted- Whether sentenced-Bond-Power to grant-
Competence of appeal-Powers of court on appeal- Whether court of error-
Justices Act, 1902 (NS. W.), s. 51A-Crimes Act, 1900 (amended by Crimes Act,
1974) (NS. W.), ss. 556A, 558-Criminal Appeal Act, 1912 (NS. W.), ss. 2,50.
Section 50 of the Criminal Appeal Act, 1912 (N.S.W.) empowers the Attorney-
General to appeal to the Court of Criminal Appeal against any sentence
pronounced by (inter alia) the District Court. "Sentence" is defined in s. 2 to
include "any order made by the court of trial on conviction with reference to the
person convicted, or his property ... "
An accused person pleaded guilty to certain offences before the District
Court. His plea was accepted by the judge, who did not formally convict him
but remanded him for sentence in twelve months on the condition, which was
accepted, that he should enter into a good behaviour bond for that period. The
Attorney-General appealed on the ground that the sentence was inadequate, and
the Court of Criminal Appeal imposed a sentence of imprisonment.
Held, that the accused had not been "sentenced" by the judge within the
meaning of s. 50 of the Criminal Appeal Act. Accordingly, the Attorney-General
had no right of appeal to the Court of Appeal under s. 50, and the Court had no
jurisdiction to entertain the appeal.
R. v. Spratling, [1911] 1 K.B. 77, considered.
Per Barwick C.J., Stephen, Jacobs and Aickin JJ. The accused had been
"convicted" within the definition of "sentence" in s. 2.
Powers of criminal courts to grant bonds to persons found guilty of offences or
pleading guilty considered.
Observations by Barwick C.J., Stephen, Jacobs and Murphy JJ. upon the
powers of the Court of Criminal Appeal on appeals by the Crown against sentence.
Whittaker v. The King (1928), 41 C.L.R. 230, considered.
Decision of the Supreme Court of New South Wales (Court of Criminal
Appeal) reversed.
H. C. OF A.
1976-1977.
'-r-'
SYDNEY,
1976,
Nov. 23,24.
1977,
Aug. 17.
Barwick C.J.,
Stephen,
Jacobs,
Murphy and
Aickin JJ.
Addenda: lnsert reference Reg. v Griffiths, [1975] 1 N.S.W.L.R. 229.

294 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
'-r-'
GRIFFITHS
V.
THE QUEEN.
ApPLICATION for special leave to appeal from the Supreme Court of
New South Wales.
Kevin Idris Griffiths was charged before a stipendiary
magistrate at Kogarah in New South Wales with offences of
breaking and entering. He pleaded guilty, and was committed to
the sittings of the District Court at Sydney to be dealt with as
provided by s. 51A of the Justices Act, 1902 (N.S.W.). On 20th
September 1974 Griffiths came before Judge Goran and main-
tained his plea of guilty. The judge accepted the plea, though he
did not expressly convict him. He remanded him for S"entence to
19th September 1975 and permitted him to go at large on the
condition, which was fulfilled, that he entered into a bond to be of
good behaviour until that date. The Attorney-General appealed
to the Court of Criminal Appeal on the ground that the sentence
was inadequate. The Court (Street C.J., Lee and Slattery JJ.)
imposed a sentence of imprisonment for six years. Griffiths
applied for special leave to appeal to the High Court. Further
facts are set out in the judgments hereunder.
E. H. St. John Q.C. and B. H . K. Donovan, for the applicant.
V. R. Wallace Q.C. and J. Hogan, for the respondent.
Cur. adv. vult.
1977, Aug. 17. The following written judgments were delivered:-
BARWICK C.J. The applicant for special leave was charged
before a stipendiary magistrate at Kogarah in the State of New
South Wales with having committed between 4th March 1973 and
29th July 1974 three separate acts in contravention ofthe Crimes
Act, 1900 (N.S.W.), as amended ("the Crimes Act"): two of
breaking, entering and stealing and one of being accessory after
the act of breaking, entering and stealing. He pleaded guilty to
each charge and was committed to the sittings of the District
Court at Sydney to be dealt with as provided by s. 51A of the
Justices Act, 1902 (N.S.W.), as amended ("the Justices Act"). He
was not given bail.
Section 51A (1) of the Justices Act is in the following terms:
"51A. (1) A person charged before one, or more than one,
Justice with an indictable offence not punishable with penal
servitude for life may, at any stage of the pr.oceedings, plead
guilty to the charge and thereupon the following provisions
of this section have effect:-
(a) The Justice or Justices may accept or reject the plea.
The rejection of a plea of guilty at any stage of the
proceedings does not prevent the accused from
pleading guilty under this section at a later stage of the

137 C.L.R] OF AUSTRALIA. 295
proceedings and the Justice or Justices have power to
accept or reject the plea at that later stage;
(b) Where the Justice or Justices reject the plea the
proceedings before the Justice or Justices shall be
continued as if the plea had not been made;
(c) Where the Justice or Justices accept the plea, the
Justice or Justices shall thereupon commit the accused
to such sittings of the Supreme Court or such Court of
Quarter Sessions as the Justice or Justices may direct
to be dealt with as hereinafter in this section
provided;
(d) The Judge of the Supreme Court or the Chainnan of
Quarter Sessions, as the case may be, before whom the
accused is brought in accordance with this section-
(i) shall, if it appears to him from the infonnation or
evidence given to or before him that the facts in
respect of which the accused was charged before
the Justice or Justices do not support the charge
to which the accused pleaded guilty or if the
accused or counsel for the Crown requests that an
order be made under this subparagraph, and may
if for any other reason the Judge or Chainnan, as
the case may be, sees fit so to do, order that the
proceedings before the Justice or Justices at which
the accused pleaded guilty be continued at a time
and place to be specified in the order;
(ii) unless an order is made under subparagraph (i) of
this paragraph, has the same powers of senten-
cing or otherwise dealing with the accused, and of
finally disposing of the charge and of all inciden-
tal matters as he would have had ifthe accused on
arraignment at any sittings of the Court had
pleaded guilty to the offence charged on an
indictment filed by the Attorney-General."
By amendment, the District Court in its criminal jurisdiction has
been substituted for the Court of Quarter Sessions.
The applicant was brought before the District Court, Sydney,
in its criminal jurisdiction (Judge Goran) on 20th September
1974. He adhered to his plea of guilty to each of the
charges. The learned judge heard evidence of a very long and
persistent record of criminal behaviour on the part of the
applicant, the evidence of the applicant himself and that of his
wife.
Having considered the material before him, his Honour,
addressing the applicant, amongst other things, said this:
"I accept your evidence, I accept the fact that you have had
a change of heart, and I accept the evidence of your wife. I
was once told by an officer of the Salvation Anny who helped
judges and magistrates in court ... that if there ever is an
age when a man who has seen a lot of gaol is going to
H. C. OF A.
1976-1977.
'--y-'
GRIFFITHS
v.
THE QUEEN.
Barwick C.J.

296 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
Ly-'
GRIFFITHS
V.
THE QUEEN.
Barwick C.J.
change, it is about the age of forty-that is give or take a year
or two either way-it is about that age, and he impressed me,
and I tried it out as a theory and I found from time to time it
worked.
You are at the crossroads; you have either to be declared
or sent to gaol for a long time, or else you have to be given
your chance now, and I prefer, of course, to give you a
chance, and I am going to do it. I am going to do it in this
way, a way which is familiar, as I say, to many people in my
court.
I won't deal with you today, I will deal with you in twelve
months time. During that twelve months you are going to
be on a trial period to see what you can do to keep out of
crime, and you are going to be under the supervision of the
Probation and Parole, and I am going to ask them to give me
a report about you each three months to see how you are
going, and I am going to ask them to help you. That means
of course that you will be at large during that time. If you
can satisfy me-I won't give you any promises-but if you
can satisfy me at the end of that time that I should not send
you to gaol, that you have made good, then I won't sent you
to gaol at all."
Ultimately, his Honour said:
"The order I will make is that I will remand you for
sentence to 19th September next year to appear here, and I
will suffer you to go at large providing you enter into a bond
today; we will fix the amount, yourself in $200, to appear on
that day for sentence. You are to be of good behaviour in the
meantime, that is one condition. The other condition is that
you will place yourself under the supervision of the Probation
and Parole Service and obey such reasonable directions as an
officer of that service may give you from time to time, and I
have called for reports every three months. The period of
remand may be broken at the instance of either yourself or
the parole officer." .
The applicant, on that day, did enter into a recognizance in the
sum of $200 conditioned on his being of good behaviour during
the period until 19th September 1975 and to appear at the Court
at Sydney within that period if called upon so to do to receive
sentence and that he placed himself under the supervision of the
Probation and Parole Service obeying all the reasonable
directions of the officers of that Service.
The recognizance recited that the applicant had pleaded guilty
before the stipendiary magistrate to the three charges and that
thereafter at a sitting of the District Court at Sydney he was
ordered to enter into the recognizance.
Some discussion took place during the hearing of this
application as to the form of the recognizance. It was observed,
quite correctly, that in truth the applicant had not been ordered to

137 C.L.R.] OF AUSTRALIA. 297
enter into the recognizance but that he had been set at large
contingently on his entering into a recognizance in the specified
tenns. However, nothing, in my opinion, turns on the erroneous
inclusion in the recognizance of the recital that the applicant was
ordered to enter into it.
Having entered into the recognizance, the applicant was set at
large and up till the time at which he was returned into custody,
as I shall hereafter mention, he observed the conditions of the
recognizance. After a period of three months, a parole officer
reported to the District Court judge as follows:
"Since being released on a recognizance on 20th September
1974 Griffiths has continued regular contact with this Service.
He has not missed any reporting appointments. Griffiths
has maintained regular employment with the one employer
for the whole of the period.
A number of home visits have been made and a very stable
happy home environment has been observed. Griffiths has
been most co-operative with this Service and it is felt that his
perfonnance thus far has been above average."
However, the Attorney-General for the State of New South
Wales appealed to the Court of Criminal Appeal,
" ... against a certain sentence pronounced by His Honour
Judge Goran, a Judge of the District Court of New South
Wales, in the District Court (Criminal Jurisdiction) at Sydney
on the twentieth day of September in the year one thousand
nine hundred and seventy-four when one KEVIN lORIS
GRIFFITHS appeared for sentence on charges of breaking and
entering a shop and stealing therein, breaking and entering a
store and stealing therein, and being an accessory after the
fact to breaking and entering a shop and stealing therein, ... "
The notice of appeal contained the assertion:
". . . and for the said offences sentence was deferred upon
him entering into a recognizance himself in the sum of $200
to be of good behaviour and to appear to receive sentence on
the nineteenth day of September in the year one thousand
nine hundred and seventy-five, or earlier if called upon to do
so in respect of any breach within the said period ... "
and reference was then made to the other conditions of the
recognizance. The stated ground of the Attorney-General's
appeal was " ... that the said sentence was inadequate".
The Court of· Criminal Appeal overruled submissions on behalf
of the applicant, the respondent to the Attorney-General's appeal,
(i) that the applicant had not been convicted, (ii) that, in any
case, he had not been sentenced and (iii) that, consequently, on
either ground, the Attorney-General had no right of appeal. The
Court held that the applicant had been sentenced and that the
H. C. OF A
1976-1977.
'-y-J
GRIFFITHS
v.
THE QUEEN.
Barwick C.J.

298 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
'-y-.I
GRIFFITHS
V.
THE QUEEN.
Barwick c.J.
Court had jurisdiction to entertain the Attorney-General's
appeal. The Court said:
"The deferring of sentence pursuant to s. 558" [i.e., of the
Crimes Act, a section to which I shall later refer] "is clearly
within the appellate jurisdiction of this Court and there
seems to be no reason either in principle or in policy to deny
the appellate authority of this Court where a course
achieving and intended to achieve substantially the same
result, is adopted in consequence either of conviction after
trial or conviction on a plea of guilty."
The Court further said:
"It would be regrettable to recognise that a course could be
followed immune from appellate authority whereby a
convicted person could find himself for a lengthy period, in
this instance, for example, twelve months, uncertain as to
what his punishment is going to be. Not only would he be
uncertain, but, if the argument for the respondent were well
founded, there would be no remedy by way of appeal to this
court. There is accordingly every justification both in point
of textual construction and in point of policy for recognising
that what took place here amounts to a sentence within the
terms of s. 5n and that it is open to review by this court upon
appeal by the Attorney-General, equally as it is open to
review upon an appeal by the criminal concerned."
Referring to the course taken by the trial judge, the Court said:
"In our view this is not a permissible sentencing procedure.
It cannot be supported as a mere exercise of the undoubted
power of adjournment. Such a power is ancillary and is
exercisable, inter alia, if the judge wishes to deliberate or to
obtain further information such as a psychiatric report. But
the power of adjournment is not properly exercised if the
adjournment is ordered as an integral part of the sentencing
process in the way in which it is involved in the practice
under consideration."
The Court of Criminal Appeal then felt itself at liberty itself to
sentence the applicant. It imposed a total sentence of some six
years' imprisonment with a non-parole period to expire three
years from the date on which the applicant was taken into
custody. In pursuance of this sentence the applicant was placed
in gaol to serve the sentence imposed on him.
The applicant now seeks the special leave of this Court to
appeal against the orders of the Court of Criminal Appeal.
Notice in that regard was filed some twenty-one months after
the date of the decision of that Court. This delay, however,
has, in my opinion, been satisfactorily explained and I would
certainly grant any necessary extension of time to enable the
Court to consider the applicant's application for special leave.

137 C.L.H.] OF AUSTRAUA. 299
The applicant has been in gaol for more than two years,
serving the sentence imposed upon him. We were informed that
the non-parole period fixed by the Court of Criminal Appeal has
not yet expired. As I have reached the conclusion, for reasons
which I am about to express, that the Court of Criminal Appeal
was in error in entertaining and in allowing the Crown's appeal
and that the learned trial judge was not in error in taking the
course which he did, the applicant is now in a very sorry state
indeed. From the parole officer's report which I have set out
and which was before the Court of Criminal Appeal, it seems that
the applicant had decided to abandon a life of crime and was
making an apparently successful effort to rehabilitate
himself. From that promising situation he was taken as a
result of the decision of the Court of Criminal Appeal and
plunged into association with those whose company he could not
avoid in serving his gaol sentence. His task of self-
rehabilitation will have been made more difficult. He could not
be blamed if he felt disheartened.
The applicant, in support of the application for special leave,
poses four submissions. He first says he was not convicted of
any of the three offences; that therefore a sentence could not
have been imposed on him and that, consequently, there could be
no right of appeal in the Attorney-General.
Section 5n of the Criminal Appeal Act, 1912 (N.S.W.), as
amended ("the Criminal Appeal Act") is in the following terms:
"The Attorney-General may appeal to the Court of Crimin-
al Appeal against any sentence pronounced by the Supreme
Court or any Court of quarter sessions ... "
(now, by reason of amendment, the District Court in its Criminal
Jurisdiction).
It is manifest that the only right of appeal of the Attorney-
General must be derived from the Criminal Appeal Act: the
Court of Criminal Appeal has no other source of relevant
jurisdiction. It is also manifest that it is only against a sentence
that the Attorney-General may appeal.
According to s. 2 of the Criminal Appeal Act:
"'Sentenc~' includes any order made by tJ;le court oftrial on
conviction with reference to the person convicted, or his
property, and any recommendation or order for deportation
in the case of a person convicted; and the power of the
Court of Criminal Appeal to pass any sentence includes a
power to make any such order or recommendation."
The applicant's second submission is that, in any case, even if
there were a conviction, the judge did not sentence him. There
H. C. OF A.
1976-1977.
'-y--'
GRIFFITHS
v.
THE QUEEN.
Barwick c.J.

300 HIGH COURT [1976-1977.
H. C. OF A. was therefore no sentence against which the Attorney-General
1976-1977. could appeal.
GR~HS The third submission is that there was no irregularity in what
T Q
u. the trial judge did in the order which he made and that, in any
HE UEEN.
-- case, there was no warrant for the Court of Criminal Appeal to
Barwick C.J. interfere with the operation of his order.
The fourth and last submission is that s. 5n of the Criminal
Appeal Act does not give to the Court of Criminal Appeal upon
the appeal of the Attorney-General the ability to substitute its
own view of what is the proper sentence to be imposed merely
because it may not agree with the sentence which the trial judge
has imposed. In this respect the applicant challenges some of
the remarks made in Whittaker v. The King (1) and submits that
the Court of Criminal Appeal is in truth an appellate court which
derives its ability to interfere with what has been done by a trial
judge, even upon appeal by the Attorney-General, from the fact
that there has been error on the part of, or departure from
principle by, the trial judge in the making of the order which he
in fact made.
By an amendment of the Crimes Act in 1974 (No. 50 of 1974),
the District Court in its Criminal Jurisdiction acquired the same
powers as a magistrate alone formerly exercised under s. 556A of
the Crimes Act. That section is in the following terms:
"556A. (1) Where any person is charged before any court
with an offence punishable by such court, and the court
thinks that the charge is proved, but is of opinion that,
having regard to the character, antecedents, age, health, or
mental condition of the person charged, or to the trivial
nature of the offence, or to the extenuating circumstances
under which the offence was committed, or to any other
matter which the court thinks it proper to consider, it is
inexpedient to inflict any punishment, or any other than a
nominal punishment, or that it is expedient to release the
offender on probation, the court may, without proceeding to
conviction, make an order either-
(a) dismissing the charge; or
(b) discharging the offender conditionally on his entering
into a recognizance, with or without sureties, to be of
good behaviour and to appear for conviction and
sentence when called on at any time during such
period, not exceeding three years, as may be specified
in the order.
(lA) A recognizance mentioned in subsection (1) shall be
conditioned upon and subject to such terms and conditions as
the court shall order.
(2) Where an order is made under this section the order
shall, for the purpose of revesting or restoring stolen
(1) (1928) 41 C.L.R 230.

137 C.L.R.] OF AUSTRAUA. 301
property, and of enabling the court to make orders as to the
restitution or delivery of property to the owner, and as to the
payment of money upon or in connection with such
restitution or delivery, and for the purpose of the exercise of
any power conferred by section 437 (1) or section 554 (3), have
the like effect as a conviction.
(3) Where under subsection (1) a charge is dismissed or an
offender is conditionally discharged, the person charged shall
have the same rights as to appeal on the ground that he was
not guilty of the offence charged as he would have had if
convicted of the offence."
By the same amendment the terms of s. 558 were changed. Sub-
section (1) of that section now provides:
"558. (1) A court before which a person comes to be
sentenced for any offence may if it thinks fit defer passing
sentence upon the person and order his release upon his
entering into a recognizance, with or without sureties, in such
amount as the Court directs, to be of good behaviour for such
period as the Court thinks proper and to come up for sentence
if called upon."
This amendment was operative on 2nd August 1974 and thus at
the date on which the trial judge made the orders to which I have
referred: but he did not purport to utilize the authority which
the section gave him.
I mention these sections at this point because of two aspects of
the applicant's submissions upon which I must now touch. It
was said that because the powers given by s. 556A, which
included the ability not to proceed to conviction of the proven
offence, were available to the District Court judge, there could be
no conviction even upon a verdict of guilty by a jury, unless the
judge himself convicted the accused. It was also said that s. 558
was confirmatory of the relevant existing law.
It is apparent that, in the mechanical amendment of s. 556A so
as to extend the powers formerly exercisable only by a magistrate
to be exercisable by "any court", insufficient attention has been
paid to the very different situation which obtains in the course of
a hearing before a magistrate and the course of a trial, whether
before a District Court or before the Central Criminal Court.
The magistrate, having found guilt, may choQse to resort to
s. 556A, in which case he does not proceed to convict. But if he
decides to convict, as a rule he does so expressly by appropriate
words.
But the traditional position where there is a trial with a jury is
that the return by the jury of a verdict of guilty both establishes
guilt and amounts itself to a conviction. That accords with long-
standing practice in the courts of New South Wales where
H. C. OF A.
1976-1977.
'-r--'
GRIFFITHS
V.
THE QUEEN.
Barwick C.J.

302 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
"-y-J
GRIFFITHS
v.
THE QUEEN.
Barwick GJ.
accused are tried with a jury, where no specific step is taken to
convict, or direct the entry of a conviction after verdict. There is
the possibility, though extremely rare, of a trial judge refusing to
accept the jury's verdict at least on its first return. But, usually,
that verdict is acted upon and no question of its non-acceptance
arises. Thus, having received the verdict of the jury, the trial
judge is in a position without taking any further step to sentence
the accused.
However, the position where an accused has pleaded guilty is
not so easily resolved. In this instance, quite clearly the trial
judge has the ability to refuse to accept the plea. Consequently,
it can scarcely be said that the making of such a plea is itself a
conviction. As a rule, the trial judge's acceptance of such a plea
is implicit in so far as he indicates, having heard the plea of
guilty, that he will act upon it as, for example, by calling for the
record from the gaol recorder or by some other act. Such acts
indicate that he is proceeding on the footing that the accused is
convicted.
Although it has not been the practice hitherto to do so, it seems
to me that it would be prudent in the case where a plea of guilty is
accepted, and no question of utilizing s. 556A is in contemplation,
that the trial judge should expressly indicate that the accused is
convicted: and to do so before proceeding to make any order in
relation to that conviction.
This recital of the usual procedure at a trial by the Central
Criminal Court or by the District Court in its criminal juris-
diction immediately highlights the difficulty of such courts
using the powers given by s. 556A. But I am of opinion that
the provisions of that section may be accommodated. to that
procedure by the following practice. It seems to me that a trial
judge, who wishes to consider the exercise of the powers given by
s. 556A where there is a verdict of the jury, should first direct that
the verdict be recorded but that no conviction thereon be recorded
until further order. The prisoner may then be remanded so that
on the day to which he is remanded, the question of recording or
not recording a conviction can be decided and a further order or a
formal sentence pronounced, as the case may be. If, at that time,
the judge decides to use the power given by s. 556A he should
direct that no conviction upon the jury's verdict be recorded and
then proceed to make his order under the section. This, of
course, may seem anomalous in that it may well be said that,
immediately on the return of the verdict, the conviction had
occurred. Also the trial judge will not have decided at the time
the verdict is returned what course he will take. But it seems to

137 C.L.R.] OF AUSTRALIA. 303
me that such a practice as I have outlined would satisfy the
language of s. 556A as now amended for it can be said that the
court has not proceeded to conviction. After all, it is for the
court, and not for the jury, to convict the accused. Further the
suggested practice really does no substantial violence to
traditional concepts notwithstanding the current view of the
consequences of the verdict.
Where the plea is one of guilty which the judge accepts but
wishes to consider the exercise of his powers under s. 556A, he
can immediately indicate that he accepts the plea of guilty as
proving the offence but that he remands the prisoner to consider
what course he will take. On the prisoner's return, if the judge
has decided to use s. 556A, he should indicate that no conviction
is to be recorded and proceed to make the appropriate order. But
if he decides not to act under the section, he should say that the
prisoner is convicted and proceed to make an order either
disposing of the consequences of the conviction or deferring the
imposition of a sentence.
I have made these few remarks, though they may not strictly be
necessary for the disposal of this application, because the matter
has been fully argued by the applicant and by the Crown and
because the amendment to s. 556A could give rise to uncertainty
for the future. A degree of formality in carrying out the practice
I have outlined would assist to remove any ambiguity from the
proceedings consequent upon verdict or upon a plea of guilty. I
shall reserve what I wish to say about s. 558 until later.
Meantime, I return to the procedure under s. 51A of the Justices
Act. It is clear from the express provisions of that section that a
Supreme Court judge or a District Court judge is not bound to act
upon the plea of guilty which the person committed to the court
by the justice has made to the charges preferred before the
justice. Further, he is not bound to accept the plea of guilty
which may be affirmed by that person when he appears before
the court, be it the Central Criminal Court or the District
Court. The terms of the section sufficiently establish that
position. Thus, it would seem that before the judge can sentence
a person committed to the court under s. 51A he must expressly or
impliedly accept the plea of guilty. Before doing so, he may in
an appropriate case take evidence as to the facts of the matter
and, indeed, if the accused is willing in an appropriate case to
hear his account of the matter. Though, as I will indicate, I do
not think it is indispensable, I think it would be advisable for the
judge who has decided to accept the plea of guilty to do so
formally and, if he proposes to proceed to convict, to indicate by
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
THE QUEEN.
Barwick C.J.

304 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
THE QUEEN.
Barwick C.J.
appropriate words that the accused is convicted. But he may
wish to keep open the possibility of utilizing s. 556A. In that
event, he should not convict the accused until he has decided not
to give the accused the benefit of that section. Again, if the
judge desires to keep open his powers under that section during a
remand, he should indicate by express words that the question of
proceeding to conviction is deferred. Though nothing of that
kina occurred in this case, it is submitted on behalf of the
applicant that the judge kept open for himself the power to
exercise s. 556A and that therefore he must not be t&ken to have
proceeded to conviction before making the order which I have
recited.
It is to my mind quite clear, however, that the judge in this case
did not for a moment contemplate resort to the powers given him
by s. 556A. It is apparent from the report he made to the Court
of Criminal Appeal that he regarded the order which he did
make as only properly to be made as a substitute for a gaol
sentence: in other words, that the only alternative he felt open
to him in 'this case was a gaol sentence. I would have no doubt
that he did not intend to reserve for himself the power to resort to
s.556A.
I am also clear that the judge did accept the plea of guilty in the
sense that it not only established guilt but warranted the entry of
a conviction. In my opinion, the judge did convict the
applicant. Consequently, the first submission ought not to be
accepted. The applicant, in my opinion, was convicted and,
indeed, the order which the judge made was made on the basis
that it was an order on conviction.
I now proceed further to discuss what it was that the trial judge
did. I have so far said he accepted the plea of guilty: he treated
it as warranting the entry of conviction: he did not contemplate
or reserve to himself the use of the powers given him by s. 556A
as amended and he convicted the applicant. But did he sentence
him?
It is apparent that he did not order the applicant to enter in to a
recognizance. It may be accepted that an order that the prisoner
enter into a recognizance may amount to a sentence as defined
where that order definitively disposes of the consequences of the
conviction: cf. the use of s. 20 of the Crimes Act 1914 (Cth) and
see Devine v. The Queen (2).
A discussion took place during the argument of this application
as to the use of what I might call a "preventive bond" as under
the Statute of 1360 and as to the use of a compulsory bond
(2) (1967) 119 C.L.R. 506.

137 C.L.R.] OF AUSTRALIA. 305
instead of a gaol sentence. I do not regard it as necessary to deal
with all the matters which have been discussed in these
connexions. Suffice it to say that the trial judge did not purport
to compel the entry into a recognizance as a means of "preventive
justice" or as itself a sentence, in the sense of a definitive disposal
of the consequence of the proven offence. What he did, it seems
to me, was to decide that he would remand the applicant for
sentence. It cannot be doubted that that is a power available to
the trial judge and, for that matter, regularly exercised. The
judge can remand the prisoner in custody until brought before the
court again to be dealt with at the end of the period of
remand. But, also, it cannot be doubted that, instead of
remanding the prisoner in custody, he may set him at large
during the period of the remand. The prisoner may be set at
large immediately and unconditionally or only upon his entry
into a recognizance. It matters not whether the latter course is
described as a grant of bail. The power to condition the setting
at large during a period of remand upon entry into a recognizance
of a stipulated kind is, in my opinion, beyond question.
The trial judge in this case decided, for the reasons he
expressed in the passage from his remarks which I have quoted,
to set the applicant at large during the period which would elapse
before he was called up for sentence, i.e. the period of the remand,
rather than to leave him in custody during that period. He
decided that he would only set him at large on the acceptance by
the applicant of the conditions which he, the judge, expressed and
which he required to be included as conditions of a recognizance
in a money sum. Although he did not expressly seek the
applicant's consent so to be dealt with, as well he might have
done and which in my opinion it would be good practice to do, it
is clear to my mind that the entry into the recognizance by the
applicant indicated his consent to the course pursued.
I am quite unable to agree with the Court of Criminal Appeal in
thinking that the power to remand pending sentence is limited to
such period as is necessary to enable the judge to be better
informed as to the physical or mental condition of the ac-
cused. Of course, that is usually the purpose of the remand for
sentence, the period of the remand being at least in part
determined by the time expected to be taken to obtain the desired
information. But it is erroneous to conclude that therefore the
power itself is limited to such occasions and to such periods. I
can find no decided case which suggests that the power to
remand for sentence is so limited. Further, the presence of s. 558
in the amended Crimes Act, like s. 19 of the Powers of Criminal
Courts Act 1973 (U.K.), indicates that neither such a power
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306 HIGH COURT [1976-1977.
H. C. OF A.
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GRIFFITHS
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Barwick C.J.
nor its exercise is inconsistent with the due administration of
criminal justice.
But, even if such a restriction as the Court of Criminal Appeal
sought to enforce on the power to remand pending sentence were
thought to exist, I would be prepared to accept the view that to
remand the accused for such a period as would enable the jury to
have observations made of his behaviour and of his capacity
to be rehabilitated is well within even such a restricted
power. Again the terms of s. 1 of the Powers of Criminal Courts
Act (U.K.) may be regarded as confirmatory of the acceptability
of such a use of the power.
During the course of argument, I indicated from time to time to
counsel for the applicant that we would not propose to enter into
the question of what was the proper sentence if a gaol sentence
had to be imposed upon the applicant if we found that the
Attorney-General's appeal was competent. But, it seems to me, I
can properly say that, in my opinion, the interests of the commun-
ity are not by any means necessarily disserved by a judge taking
the course which the trial judge took in this case. It is a course
which must be reserved for proper cases, cases in which the guilty
person will accept the delay in the determination of the sentence
and submit to the compulsion towards reformation which that
delay and the terms of a recognizance may involve: and in
which there is a real expectation founded upon solid ground and
not on mere sentimentality that such reform is likely to occur. It
is a course which one would expect to be taken only by those who
have had experience in this field and who have heard and
evaluated the convicted person.
I am unable to accept the view expressed by the Court of
Criminal Appeal in their solicitude for the prisoner that it was
unfair to leave him uncertain as to his fate. It is enough to
dispose of that suggestion to say that the applicant under the
terms of the bond into which he voluntarily entered could have
ascertained at any time what his fate would be by terminating
the period of remand. Indeed, he could have preferred to be dealt
with and know: his fate immediately by refusing to enter into the
recognizance: but, evidently motivated by a desire to reform
which his subsequent conduct appears to have confirmed, he
chose to accept the opportunity made available to him by the trial
judge.
I am a little uncertain as to what the Court of Criminal Appeal
really decided in this case. I have quoted the salient parts of the
judgment. It is possible to read what the Court said as an
intimation that the trial judge lacks the power to remand for
Corrigendum: "jury" should be changed to read "judge".

137 C.L.R.] OF AUSTRALIA. 307
sentence except for the purpose of obtaining reports from
qualified people as to the physical or mental characteristics of the
accused. I have indicated the unacceptable nature of that con-
clusion. Or it may be that their Honours conceded the power to
remand for sentence even for twelve months but thought that it
was bad practice so to do. If that was the decision I would not
support such a criticism.
The Court did not give a direct reason for concluding that the
applicant had been sentenced, a conclusion that was basic to the
Court's power to entertain the appeal. Rather, the Court sup-
ported its jurisdiction to hear the Attorney-General's appeal by
first pointing out that an appeal would be equally available to the
prisoner and to the Attorney-General against an order deferring
sentence under s. 558; because of the assumption thus made
and for which no reason is afforded, the Court concluded
seemingly by analogy that an appeal would lie, again at the
instance of a convicted person and of the Attorney-General,
against such an order as was made in this case, i.e. a remand for
sentence, the convicted person being meantime set at large if he
entered into a recognizance containing stipulated conditions.
But, in my opinion, s. 558 in terms denies that an order made
under it is relevantly a sentence: just as, strangely enough, the
Attorney-General's notice of appeal in the passages I have quoted
seems in terms to deny that the trial judge sentenced the
applicant. So, in exercising the power given by s. 558, a judge
does not sentence the accused. Clearly, having deferred sentence
on the convicted person the judge cannot force on the convicted
person the burden of the recognizance. That person may refuse
to enter into it. But, if he enters into it there can be no injustice
in holding that he cannot appeal against the order to which in
substance he has consented. Nor can the Attorney-General
appeal under s. 5n against the remand for there is in truth no
sentence against which to appeal.
Having regard to what, in my opinion, the trial judge did in
this case, so far from sentencing the applicant, he merely
remanded him for sentence. I have great difficulty in believing
that an order for remand is a sentence. Indeed, I think quite
patently it is not. Even if one is tempted to be dominated in this
respect by the text of the definition ignoring completely the
circumstance that, in any case, the definition is subject to context,
it seems to me that what the words "sentence pronounced" call
for is a definitive decision by the judge on the punishment or
absence of it which is to be the consequence of the convic-
tion. As I have already indicated, an order that the accused
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308 HIGH COURT [1976-1977.
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GRIFFITHS
V.
THE QUEEN.
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enter into a bond to be of good behaviour may be a means of
finally determining what should be done upon a conviction of the
prisoner. But clearly a remand for sentence is not.
A further matter was raised by the applicant which perhaps
need not be disposed of in order to resolve this appeal. But the
matter has been fully argued and it is a matter which affects the
general administration of the criminal law in Australia. I
propose to express my conclusion as to the submission.
It has been said that this Court in Whittaker v. The King (3)
decided that the Supreme Court sitting as a court of criminal
appeal on an appeal by the Attorney-General was not restrained
as appellate courts usually are to the remedy of error in what has
been done in the court below, but that that court has complete
and, as it is said, unfettered discretion to substitute what it thinks
is the proper sentence for that which the trial judge has imposed
without considering whether in truth the trial judge has erred in
a matter of principle or whether he has acted unreasonably or in
disregard of relevant evidence or whether in some other way he
has exceeded or misused the discretion which is committed to him
in the sentencing of convicted persons.
In my opinion, this Court decided no such thing in Whittaker v.
The King. It is quite true that what was said by the Chief
Justice and Powers J. in their joint judgment could support that
view, but clearly nothing in what was said by Isaacs J. or
Higgins J. would do so. The other two Justices, Gavan Duffy J.
and Starke J., in refusing special leave, said that the Court of
Criminal Appeal "in imposing the sentence complained of, did
not proceed in opposition to any principle of law but in accord-
ance with its own considered view of the facts" (4). This might be
thought an ambiguous statement but it means, in my opinion,
when related to the circumstances which obtained in that case,
that their Honours were not disagreeing with what the Court of
Criminal Appeal had said. The principle upon which the Court
acted was, in their opinion, the correct principle.
Having referred to the principles laid down in R. v. King (5) the
Chief Justice of New South Wales in R. v. Whittaker (6) posed for
himself the question whether the trial judge had proceeded upon
a wrong principle. On examination of what the trial judge had
done, he concluded that he had erred in principle. James J. and
Campbell J. concurred in this judgment. Having decided that
error was present in what the trial judge had done, the Court then
(3) (1928) 41 C.L.R. 230.
(4) (1928) 41 C.L.R., at p. 253.
(5) (1925) 25 S.R. (N.S.W.) 218.
(6) (1928) 28 S.R. (N.S.W.) 411, at
p.418.

137 C.L.R.] OF AUSTRAUA. 309
was in a position to impose such sentence as it thought
proper. Thus, in my opinion, the joint judgment of Gavan Duffy
and Starke JJ., in supporting the judgment of the Supreme Court,
denies the view of the function of the Court of Criminal Appeal
which has been suggested.
The authority of the Court of Criminal Appeal to hear and
determine an appeal by the Attorney-General against the
sentence imposed at the trial is, as I have said, derived
exclusively from s. 5n of the Criminal Appeal Act. The author-
ity was thus given to an appellate court whose powers, derived
from other sections of that Act, were exclusively appellate. Sec-
tions 6 and 8 of the Act quite clearly limit the court to an
appellate function. It would indeed be strange to construe s. 5n
as giving to the court more than a truly appellate func-
tion. What it is claimed that Whittaker v. The King (7) decided
would give to the court a function more akin to original
jurisdiction exercisable without reference to what has already
been done and in the exercise of which the court was not
constrained by those principles of appellate courts which concede
to the presiding judge a discretion the exercise of which is not to
be disturbed except for error.
In my opinion, s. 5n does not bear such a construction. It does
no more, in my opinion, than give to the Court of Criminal
Appeal authority to hear and determine an appeal by the
Attorney-General against the sentence erroneously imposed by a
trial judge. Its reference to discretion, in my opinion, does no
more than ensure that where a proper occasion arises for the
allowance of an appeal, the court itself may substitute the
sentence which it considers appropriate for that imposed by the
trial judge. Thus, no question of remitting the matter to the trial
judge for sentence in conformity with the reasons for judgment of
the Court of Criminal Appeal arises. In other words, the court is
not limited to acting as a court of cassation.
In the instant case, had the Court of Criminal Appeal not
been in error in setting aside the orders of the trial judge, it could
have imposed the sentence which it properly though ap-
propriate. The matter not having been argued, I do not say
anything as to the propriety of the sentence in fact imposed by
the Court. However, as in my opinion the Court of Criminal
Appeal was in error in holding that the trial judge was in error in
the course he took, the Court was not entitled to impose a
sentence of its own choice.
(7) (1928) 41 C.L.R. 230.
H. C. OF A.
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v.
THE QUEEN.
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310 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
V.
THE QUEEN.
Barwick C.J.
It seems to me that the misapprehension as to the effect of this
Court's decision in Whittaker v. The King had led to much more
frequent arpeals by the Attorney-General than might properly
have been expected. Inadequacy of sentence, an expression not
found in the Criminal Appeal Act but which is the form in which
the ground of the Attorney-General's appeal is expressed, is not
satisfied by a mere disagreement by the Court of Appeal with the
sentence actually imposed. It means, in my opinion, such an
inadequacy in the sentence as is indicative of error or departure
from principle. No doubt, consistency in the sentences imposed
by the judges of the District Court is a desirable feature of
criminal administration. Gross departure from what might in
experience be regarded as the norm may be held to be error in
point of principle. Thus, in an appropriate case, the Court of
Criminal Appeal may exercise its influence towards such
consistency of sentence. But that consistency is not to be sought
or secured, in my opinion, by the Court of Criminal Appeal
substituting in any case which the Attorney-General cares to
bring before it, its own view of the appropriate sentence
irrespective of the presence or absence of error on the part of the
trial judge. I ought at this point to say that I agree with the
reasons for judgment of Isaacs J. in Whittaker v. The King (8)
and accept the citations which he makes in support of his
views. I would call attention to what his Honour says and add
that, in my opinion, the views of those whose daily, or almost
daily, task is the sentencing of prisoners must command
respect. They are in reality in a better position to assess the
proper sentence than, in my opinion, is a court of appeal, error or
breach of principle being absent.
On my view of the proper meaning of s. 50 in the context of the
Criminal Appeal Act, an appeal by the Attorney-General should
be a rarity, brought only to establish some matter of principle
and to afford an opportunity for the Court of Criminal Appeal to
perform its proper function in this respect, namely, to lay down
principles for the governance and guidance of courts having the
duty of sentencing convicted persons. The present appeal,
though mistaken, is understandable as apparently it was thought
that the course taken by the trial judge was erroneous in point of
principle or practice.
In my opinion, the orders and sentence of the Court of Criminal
Appeal should be set aside and the applicant immediately
brought before Judge Goran for sentence, when no doubt the
judge will have regard to what has already occurred.
(8) (1928) 41 C.L.R., at pp. 24&-249.

137 C.L.R.] OF AUSTRALIA. 311
STEPHEN J. This application for special leave to appeal
concerns the orders made by the New South Wales Court of
Criminal Appeal upon the hearing by it of an appeal by the
Attorney-General against what was said to be in the inadequacy
of the sentence imposed upon the applicant by Judge Goran in
the District Court.
The applicant had been committed to the District Court for
sentence after having pleaded guilty before a stipendiary
magistrate. Before Judge Goran he maintained his pleas of
guilty and his Honour, after hearing evidence relevant to
sentence, remanded him to appear for sentence in twelve months'
time, allowing him to go at large in the meantime upon entry into
a bond to then appear for sentence. The bond was to be
conditioned upon good behaviour and upon his subjection to
Probation and Parole Service supervision. The applicant duly
entered into a conditioned recognizance.
For the Attorney-General to be able to appeal to the Court of
Criminal Appeal there must exist a "sentence pronounced" by the
Supreme Court or District Court (Criminal Appeal Act, 1912
(N.S.W.), s. 5n), and "sentence" is defined in that Act to
include: "any order made by the court of trial on conviction
with reference to the person convicted, or his property ... "
(s. 2). Thus there must either have been a "sentence" within the
ordinary meaning of that word or within its extended meaning,
which would include an order with reference to the person
convicted or his property, if preceded by that person's conviction.
I have had the benefit of reading the reasons for judgment
prepared by my brother Jacobs and my brother Aickin, in which
are examined in detail the circumstances in which and the time
at which "conviction" of an accused person may take place and
the meaning to be accorded to the word "sentence" when not
extended by special definition. Their researches have lightened
my task; as a result of them I am able to conclude that when
Judge Goran dealt with the applicant as he did the applicant was
then a person "convicted" for the purposes of the definition of
"sentence" in s. 2 of the Criminal Appeal Act but was not one in
respect of whom any "sentence", in the ordinary meaning of that
word, had been pronounced.
The only question which remains is whether what Judge Goran
did involved the pronouncing of a sentence in accordance with
the extended meaning given to it by s.2 of the Act. Was it an
order "with reference to the person convicted or his proper-
ty"? The applicant submits that what occurred was no more
than an adjournment of the trial for a year. In so far as his
H. C. OF A.
1976-1977.
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312 HIGH COURT [1976-1977.
H. C. OF A. Honour merely remanded the applicant for sentence he made no
19~77. such order as that of which the definition speaks. As Jacobs J.
GRIFFITHS points out, it will not satisfy the definition that the order should
T Q
u. in some way concern the accused; the phrase "with reference to
HE UEEN. h . d" " . h h
-- t e person conVlcte must mean WIt reference to t e person of
Stephen J. the convicted party". This the subsequent, and otherwise otiose,
phrase "or his property" demonstrates.
Judge Goran also suffered the applicant to go at large, provided
he entered into a bond. To order release upon recognizance was
clearly not an order with reference to the applicant's property.
Nor did it impose any restraint upon the person of the appli-
cant; on the contrary it terminated the restraint which had
previously existed during custody pending appearance for
sentence. It is no doubt an order which refers to the person of
the applicant but, in its context as an extension of the meaning of
"sentence", the relevant phrase of the definition should, in my
view, be understood as concerned only with orders which
adversely affect an accused. This the order for release did not
do.
It follows that there was, in my view, no pronouncement of a
"sentence", either as that word is defined in s. 2 of the Criminal
Appeal Act or in accordance with the ordinary meaning of that
word. There could thus be no appeal by the Attorney-General
under s. 5n of that Act from Judge Goran's order. The Court of
Criminal Appeal accordingly lacked jurisdiction. I would grant
special leave, allow the appeal and set aside the order of the
Court of Criminal Appeal. As to the course that should now
follow, I agree with what is said in the reasons for judgment of
Jacobs J. I also agree with all that is said by Jacobs J.
concerning the course which was taken by Judge Goran and
concerning the appropriateness of intervention by the Court of
Criminal Appeal had it possessed jurisdiction to so intervene.
JACOBS J. The first submission on behalf of the applicant is
that there has been no conviction. This submission is put in two
ways. It is submitted that there was no conviction because all
that had happened was that the applicant had pleaded guilty and
such a plea is not in itself a conviction; that the judge must
announce that he convicts. It is also said that it remained open
to Judge Goran to apply the provisions of s. 556A of the Crimes
Act 1900, as this section was amended in 1974, and that if there
had already been a conviction this would not have been open and
that therefore there could not have been a conviction.
The proceedings were before Judge Goran by virtue of s. 51A of
the Justices Act, 1902. Sub-section (7) provides:

137 C.L.R.] OF AUSTRALIA. 313
"A person sentenced or otherwise dealt with under sub-
paragraph (ii) of paragraph (d) of subsection one of this
section for an offence to which he pleaded guilty pursuant to
that subsection shall, for the purposes of any Act passed
either before or after the commencement of section two of the
Justices (Amendment) Act, 1958, be deemed to be convicted
on indictment of the offence."
This provision determines when there is a conviction in
proceedings to which it applies but before I consider the position
under s. 51A (7) it is necessary to consider the question of when
in the ordinary case a conviction takes place in a criminal trial.
For the purpose of certain statutes it may be correct to say that
there is no conviction until judgment (Burgess v. Boetefeur (9))
but that cannot be accepted as a correct generalization. Judg-
ment was often deferred after conviction; for instance a plea of
clergy was by Hale's time always taken after conviction and
before allocutus and judgment: Hale, Pleas of the Crown (1800
ed.), vol. 2, pp. 378-379. Moreover, the record up to and in-
cluding the conviction could be removed by certiorari into the
Queen's Bench. See Hale P.C., vol. 2, Ch. LVI and
Ch. LVIII. Section 441 of the Crimes Act, 1900 recognizes
that there may have been a conviction but that judgment thereon
may have been deferred.
I therefore take it that a conviction precedes judgment. It
seems to me that the verdict of a jury is a conviction when it has
been recorded and that a confession of guilt after arraignment is
also a conviction when it has been recorded. There remains a
conviction so long as the verdict or the confession remains on the
record. The record in this sense is the formal record, the
authentic memorial, of proceedings. See the examples in
Chitty's Criminal Law, 2nd ed. (1826), vol. IV, pp. 376a et
seq. It is not an entry in a record book which is merely a minute
or memorandum. I agree with what was said on this matter in
Reg. v. Tonks and Goss (10). The content of the formal record is
under the control of the judge before judgment in the sense that
the judge can within certain limits determine what should
properly appear in the formal record when it is drawn up:" ... a
judge of record is as it were a living record, and controuls the
entry of the clerk". Hale P.C., vol. 2, p. 647, and see further at
pp. 648-649, and at p. 650 " ... the court hath a superintendence,
as well over the record as over the clerks". Of civil process Coke
states (Co. Litt. 260a):
" ... during the terme wherein any judiciall act is done, the
record remaineth in the brest of the judges of the court, and
(9) (1844) 7 Man. & G. 481 [135 E.R.193].
H. C. OF A.
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Jacobs J.

314 HIGH COURT [1976-1977.
H. C. OF A. in their remembrance, and therefore the roll is alterable
1976-1977. during that terme, as the judges shall direct; but when that
L,-' terme is past, then the record is in the roll, and admitteth no
GRIFFITHS al . ., h "
v. teratlOn, averment, or prOOle to t e contrarie.
THE QUEEN. The same principle applied to criminal process. By the exercise
Jacobs J. of this power, which can be called a power of amendment, the
judge could allow a plea of guilty to be withdrawn at any stage up
to judgment or at least until the record was "in the roll" which in
the case of sessions would be at the end ofthe sessions. Justices
in sessions could likewise alter their records including their
judgments during the continuance of the sessions: St. Andrew's
Holborn (Inhabitants) v. St. Clement Danes (Inhabitants) (11):
"Holt C.J. [said] that during the sessions, the order was
in the breast of the Court; and though it was drawn up, yet
it was so far in the breast and power of the Court, that by
the second order it ceased to be a record. The Court at the Old
Bailey have altered and set aside their judgments ten times
the same sessions; where judgment de pain fort & dure
has been given, the Court have after let him in to plead,
and after upon his trial he has been convicted, and has had
another judgment against him to be hanged. So it is of
judgments here; which during the same term are in the
breast of the Judges; ... the sessions as well as the term
is but one day in law."
See also R. v. Price (12).
If a prisoner were in the hands of the jury a verdict of the jury
might be withdrawn before it was recorded but could not be
withdrawn after it had been recorded: Hale, P.C., vol. 2, pp. 299-
300. By "recorded" is here meant, in the strict sense, incor-
porated into the roll, the authentic memorial. However, that did
not prevent the jury withdrawing its verdict even after it had
been taken and recorded in the looser sense of the word. See
Reg. v. Clouter and Heath (13), a case referred to with approval in
S. v. Recorder of Manchester (14). However, the verdict of a jury
if they will not withdraw it must be recorded and of course
judgment when given must accord with the recorded ver-
dict. Hale, Pleas of the Crown, vol. 2, pp. 309-310. Hawkins
P.C., 8th ed. (1824), vol. 2, p. 623.
I turn now to some of the cases which have been referred
to. Burgess v. Boetefeur (15) was a civil action, a claim for a
penalty payable by overseers to an informant in a certain event
on the conviction on information of the keeper of a disorderly
(10) [1963] V.R. 121.
(11) (1704.) 2 Salk. 606 [91 E.R. 514].
(12) (1805) 6 East 323, at pp. 327-328
[102 E.R. 1310, at pp. 1312-
1313].
(13) (1859) 8 Cox C.C. 237.
(14) [1971] A.C. 481.
!I5) (1844) 7 Man. & G. 481 [135 E.R.
193].

137 C.L.R.] OF AUSTRALIA. 315
house. Three such keepers of a disorderly house pleaded guilty
but judgment was respited from October 1842 to June 1843 when
the keepers were brought up and fined. In the meantime the
overseers had changed. The plaintiffs sued the newly appointed
overseers. The question was whether the right to the penalty
accrued at the time of the pleas of guilty or at the time of the
judgment. So much reliance has been placed on the words of
Tindal C.J. (16) that I would quote the passage in full:
"The first question then is, who were the overseers of the
said parish at the time the conviction took place. The
information was laid in the year 1842, when the parties
prosecuted pleaded guilty. The defendants contend that the
conviction took place at that time. The plaintiff, on the other
hand, says that there was no conviction then, nor till the
parties were subsequently brought up and received the
sentence of the court. The word 'conviction' is undoubtedly
verbum aequivocum. It is sometimes used as meaning the
verdict of a jury, and at other times, in its more strictly legal
sense, for the sentence of the court. In the passages cited
from Blackstone's Commentaries, the term seems to be used
in both senses. The question is, in which sense is it used in
the statute now under consideration. And I cannot but think
that the case of Sutton v. Bishop (17) is decisive of the
point. The court there said, 'Though there is a distinction in
criminal cases between the conviction and attainder, yet
there is no such distinction in civil cases between verdict and
judgment, so as that any effect can follow from a naked
verdict. In a civil action no penalty takes place till judgment
be given on the verdict. The penalty is demanded as a debt,
and is not due till judgment is given. Any other construction
would open the door to frauds. An offender would prosecute
another to verdict, and therefore secure his own indemnity,
and then proceed no further.' Why does not the same
reasoning apply to this case? If a verdict of a jury or a
confession by the party were sufficient to satisfy the statute a
door would be equally open to fraud."
It is clear that he was deciding the question on the construction
of the particular statute bearing in mind that the statute was
providing for a penalty recoverable by civil action. It must also
be borne in mind that a conviction was not certain and final until
judgment because the conviction might have been quashed on a
motion in arrest of judgment. See Russell on Crimes and
Misdemeanours, 2nd ed. (1826), vol. 2, p. 594, and in a civil action
for a statutory penalty this could be regarded as an important
guide to the construction of the statute.
H. C. OF A.
1976-1977.
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GRIFFITHS
V.
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Jacob. J.
(16) (1844) 7 Man. & G., at p. 504 [135
E.R., at pp. 202-203].
(17) (1769) 4 Burr. 2283.

316 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
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Jacobs J.
In Jephson v. Barker (18) Stephen J. distinguished Burgess
v. Boetefeur. The facts sufficiently appear from his shortly
expressed reasons. He said that:
"in this case" [Le. the case before him] "there had been a
judgment-that was to say, there had been an order of the
Court that the prisoner should enter into his recognizances to
come up for judgment if called upon. In Burgess v. Boetefeur
the judgment was respited, and the prisoner was subsequent-
ly brought up for judgment. The judgement which had been
delivered in the present case was a final judgment except in
certain events."
In R. v. Rabjohns (19) the question was whether there had been
a conviction, which involved forfeiture of a licence, when the
defendant had pleaded guilty and had been bound over to come
up for sentence when called upon. The Court of Criminal Appeal
held that a conviction was complete when a person was bound
over to come up for judgment when called on. It purported to
approve what Stephen J. had said in Jephson v. Barker but it is
necessary to quote the words used (20):
"In the present case the language of the statute itself seems
to settle this question, as it uses the words 'convicted by the
verdict of a jury or upon his own confession,' but apart from
this the judgment of Stephen J. in Jephson v. Barker (18)
disposes of any possible difficulty, as he there says that a
binding over by the Court is the judgment of the Court for the
purpose of completing a conviction."
Though Stephen J. in Jephson v. Barker (21) had used the words
"final judgment" the paraphrase is somewhat different. But the
decision is important as showing that judgment in the strict
sense was not necessary in order that there should be a
conviction. If it had been determined that judgment in the strict
sense was necessary, then this would not accord with the
analysis of a binding over to come up for sentence which had
been made two years earlier in R. v. Spratling (22) and to which 1
refer later.
In Reg. v. Blaby (23) it was held that a previous conviction was
sufficiently proved by the production of a certificate which
showed that the prisoner had been convicted and had been
released upon a recognizance to come up for judgment when
called upon and that judgment on the conviction was not
necessary. The Court, in the course of its reasons, used language
from which it has at times been sought to be argued that a mere
(18) (1886) 3 T.L.R. 40.
(19) [1913] 3 K.B. 171.
(20) [1913] 3 K.B., at p. 174.
(21) (1886) 3 T.L.R., at p. 41.
(22) [1911]1 K.B. 77.
(23) [1894] 2 Q.B. 170.

137 C.L.R.] OF AUSTRALIA. 317
verdict or a mere plea of guilty without more amounted to a
conviction. That, I think, is to misunderstand the decision. A
certificate of conviction was produced as the facts recited in the
report show. The conviction was therefore certainly on the
record. The case decides no more than that judgment was not
necessary before there was a conviction. It was misunderstood
in R. v. Sheridan (24) but that case is of little authority since S. v.
Recorder of Manchester (25).
In Reg. v. Cole Lord Parker C.J. said (26):
" ... whilst no doubt a confession of guilt is the highest
conviction, nowhere is it stated either in Hale or Hawkins
when the conviction occurred. It is clear that it does not
occur at the time of the recording because otherwise it would
be impossible for a judge to allow a plea to be changed, as is
perfectly possible up to sentence, and indeed in one of the
cases a verdict of a jury itself was set aside before
sentence. In the judgment of the court it only ranks as a
conviction when the defendant is sentenced."
I respectfully differ from the analysis so made. It is not
necessary to conclude that sentence is necessary before there is a
conviction in order to explain the wide powers of a court to allow
pleas to be amended or withdrawn and the record to be
amended. In fact in that case the trial judges in the successive
trials refused to accept pleas of guilty and directed pleas of not
guilty to be entered; so it would appear that there was no formal
recording of a plea of guilty at any stage.
I would add that I do not regard the approach which I have
made as being inconsistent with Reg. v. Tonks and Goss (27) or
Reg. v. Jerome and McMahon (28), although I do not find the
same difficulty with Reg. v. Blaby (29) as did the Court in Reg. v.
Tonks and Goss. I would further add that the question whether
there can be a plea of autrefois convict unless there has been
judgment on the earlier conviction, which was the substantive
question in Reg. v. Cole (30), is a somewhat different question
which was left open in S. v. Recorder of Manchester (31).
I therefore take the position to be that amendments could be
made until the record was finally prepared and this would not
usually be until the judgment of the court is complete, but that
nevertheless, where there is no question of amendment, there is a
conviction when it has been recorded. At the present time the
record has not that formality which it previously had and
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
THE QUEEN.
Jacobs .J.
(24) [1937] 1 KB. 223.
(25) [1971] A.C. 481.
(26) [1965] 2 Q.B. 388, at p. 394.
(27) [1963] V.R. 121.
(28) [1964] Qd. R. 595.
(29) [1894] 2 Q.B. 170.
(30) [1965] 2 Q.B. 388.
(31) [1971] A.C. 481.

318 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
V.
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Jacobs J.
therefore the exercise of the power of amendment may be much
less formal. It can be inferred for instance from leave to alter a
plea, or from a change of plea inferred from the circumstances to
have been applied for and allowed (Reg. v. Hazeltine
(32». Nevertheless, so long as a conviction by verdict or
confession is on the record it stands as a conviction under the
general principles of criminal law unless any special meaning is
given to the word in the context of a particular statute.
Though in my opinion there is a conviction in the ordinary case
when after arraignment a confession of guilt is recorded, the
question remains whether there is a conviction on adhering under
s. 51A to a plea of guilty. The answer must depend on the correct
construction of s. 51A (7). If a man is not "sentenced" is he
"otherwise dealt with" within the meaning of this sub-section
when he is placed on a recognizance to be of good behaviour for
one year and to come up for sentence at the end of that year? I
am satisfied that he is. The making of such an order presup-
poses that the only outstanding question is that of determining
what sentence should be awarded. At the end of the year no
further question will arise on the question of guilt or inno-
cence. This is not to say that the court is functus officio on
everything except sentence. It could at the end of the year
reopen the matter and allow the defendant to withdraw his
adherence to the plea of guilty. That, however, would be an
amendment of the record and would at that stage be within the
judge's discretion. The words "otherwise dealt with" mean
"dealt with otherwise than by sentence at a time when the plea of
guilty before the magistrate remains on the record of the Court's
proceedings". An order of the kind made by Judge Goran
satisfies these words.
It is not easy to apply s. 556A to the procedure laid down by
s. 51A of the Justices Act, 1902, but that circumstance does not
change the meaning of s. 51A nor make s. 556A inapplicable
simply because the plea of guilty before the magistrate must be
allowed to remain on the record so that s. 51A can continue to
apply to the proceedings. There is a logical difficulty in the
concept but this difficulty must give way to the legislative
intention. If s. 556A were applied then, despite the plea of guilty
which is the source of jurisdiction, there would be no conviction
except for the purposes expressly provided in s. 556A. However,
until s. 556A is applied, there is no conceptual difficulty. There
is a conviction even though on the application of s. 556A there
would for most purposes cease to be a conviction. This is hardly
(32) [1967] 2 Q.B. 857.

137 C.L.R] OF AUSTRALIA. 319
if at all different from the exercise of the power of amendment
which the judge has until his final disposition of the matter of
judgment.
I conclude therefore that there was a conviction within both the
usual meaning of the word and within the particular application
of that meaning prescribed in s. 51A (7).
The further submissions on behalf of the applicant are that
even if there was a conviction on 20th September 1974 there was
no "sentence" within either the ordinary meaning of that word or
the definition of that word in s. 2 of the Criminal Appeal Act,
1912, to include any order on conviction with reference to the
person convicted or his property. Therefore it is submitted that
there was no right in the Attorney-General to appeal under s. 50
of the Act. It is first submitted that the order made by Judge
Goran was no more than an adjournment of the trial for a period
of a year and was essentially different from the so-called
"common law bond" where a convicted person is bound over to be
of good behaviour for a certain period and to come up for sentence
if called upon during that period in the event of any breach of the
condition for good behaviour.
But is it essentially different? To answer that question
requires an examination of the essential nature of a "common
law bond". It is necessary to commence with an examination of
the recognizance for good behaviour. At the outset a distinction
must be made between a requirement of a recognizance for good
behaviour which is a judgment open to the court on conviction for
a misdemeanour and such a requirement when it is required by a
justice under the statute 34 Edw. III c. 1. The distinction is
drawn in Burn's Justice of the Peace. I quote from the 23rd ed.
(1820), vol. V, p. 302, but the same passage appears in later
editions, e.g. 28th ed. (1837), vol. 5, p. 913; 30th ed. (1869), vol. 5,
p.762.
" ... there is a great difference between what the justices in
sessions may do, after a conviction by a jury, for an offence
committed, and what a single justice out of the sessions may
do, before an offence is committed, and to prevent the same
from being committed; or what a single justice may do,
upon a summary conviction before him, for an offence, as
directed by some special act of parliament. The truth is,
binding to the good behaviour was a discretionary judgment
at the common law, given by a court of record for an offence
at the suit of the king, after a common law conviction by
verdict of twelve men."
The recognizance for good behaviour was a usual part of the
judgment in the case of misdemeanours. Hawkins Pleas of the
Crown, 8th ed. (1824), vol. 1, Ch. 28, s. 4 (footnote). Where the
H. C. OF A.
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Jacobs J.

320 HIGH COURT [1976-1977.
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1976-1977.
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GRIFFITHS
V.
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Jacob. J.
sentence was "discretionary and variable according to different
.-:ircumstances" there could be a "lien to the good behaviour
for a certain time". Hawkins, Pleas of the Crown, 8th ed. (1824),
vol. 2, Ch. 48, s. 19.
Now under s. 432 (2) of the Crimes Act, 1900 the court may, in
the sentence for any misdemeanour, require the offender to enter
into a recognizance, with or without sureties, for keeping the
peace and being of good behaviour for a term not exceeding three
years. The offender would be imprisoned until sureties were
found. An order for recognizances for good behaviour is in all
these cases part of the judgment of the court. That judgment is a
final judgment.
There could be no such judgment in respect of a felony unless a
statute so provided: R. v. Trueman (33). (A number of the great
Criminal Law Consolidation Acts of 1861 in England contained
such a provision, but it does not appear that this course was
followed in New South Wales. Section 432 is limited to
misdemeanours.) If judgment were given it had to be that which
the law provided for the felony. Judgment in felony brought
attainder and forfeiture and there is no reason to think that the
criminal courts could avoid these consequences by a perpetual
deferment of judgment. The practice was to defer giving
judgment whilst a royal pardon was sought. (There is a vestige
of this old procedure preserved in s. 460 of the Crimes Act,
19QO.) Such a pardon could be made conditional on the
convicted person giving security for good behaviour for a certain
period. See the form in Chitty's Criminal Law, 2nd ed. (1826),
vol. IV, pp. 455-456. Such a recognizance was not part of the
judgment of the court but was of that second kind of surety for
good behaviour to which I now turn.
The recognizance or surety for good behaviour can be required
by any justice in respect of "all them that be not of good
Fame": 34 Edw. III c. 1. A conviction is not necessary. A
recognizance to be of good behaviour may be required where the
requirement does not form part of the judgment of the court upon
an offender. It may be in association with bail-surety to appear
at the nominated court and in the meantime to be of good
behaviour or it may be a recognizance required from a person of
evil fame to be of good behaviour for a certain period. This may
take either of two forms-to appear at a later sessions and in the
meantime to be of good behaviour or to be of good behaviour for a
certain period of time without any requirement to appear at the
later sessions. These last two forms are fully explained in Willes
(33) [1913] 3 K.B. 164, at pp. 166-167.

137 C.L.R.] OF AUSTRALIA. 321
v. Bridger (34). In this second class of case the recognizance for H. C. OF A.
good behaviour, whether or not it be in association with bail in 19~77.
respect of an offence or alleged offence and, if not, then whether GRIFFITHS
or not it nevertheless require appearance before a court at the end v.
of the period, is a recognizance under the so-called powers of THE QUEEN.
preventive justice. Jacobs J.
"The statute of 34 E. 3 cap. 1. gave them power to
apprehend malefactors, and to committ them to custody, or to
bind them to their good behaviour, which was not intended
perpetual, but in nature of bail, viz. to appear at such a day at
their sessions, and in the mean time to be of good
behaviour." Hale, Pleas of the Crown, vol. 2, p. 136.
Willes v. Bridger established that where the recognizance was
not in fact bail, then there was no need to require the recogniz-
ance until a later sessions, but that it could be required for a
period of time.
This is the power which is exercised in the case of a "common
law" bond. I am satisfied that the analysis made by the English
Court of Criminal Appeal in R. v. Spratling (35) is historically
and legally correct.
"We think that, apart from any statutory provisions, the
Court of quarter sessions had power to bind over the
appellant to appear for sentence when called upon. It was
not, and could not be, denied that that Court had power to
sentence him at the time he was convicted. We think it
equally clear that it had power to postpone sentence till a
future day. It also had power to release him on bail on his
own recognizances. To bind him over to appear for sentence
when called upon is only to postpone sentence, and in the
meanwhile release the prisoner on bail. This power has
constantly been acted upon, and we see no reason to doubt
that it exists, and that the jurisdiction to pass sentence still
remains in the Court. We must not, however, be taken to
decide that the Court can postpone sentence sine die against
the will of the prisoner."
The power to grant a common law bond sprang from the power
of justices to do two things which in their nature are quite
separate. First, justices holding a commission whether of the
peace holding their sessions (provided they were of the quorum)
or of assize, or of oyer et terminer or of gaol delivery and a justice
at nisi prius from the Queen's Bench all had p~wer to respite or
defer judgment on a conviction. I have referred to this power
earlier. I add here some further examples. The judge could
even in case of capital offences defer judgment where he was not
satisfied with the verdict or the evidence was uncertain or the
(34) (1819) 2 B. & Ald. 278 [106 E.R.
368]. 
(35) [1911] 1 K.B. 77, at p. 81.

322 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
V.
THE QUEEN.
Jacobs J.
indictment insufficient or doubtful whether within clergy. Hale,
Pleas of the Crown, vol. 2, p. 412. Secondly, the judge had the
powers of a justice under 34 Edw. III c. 1.
At some time these two courses were combined. I am not sure
that I have been able to discover when this was first reported
done. The first reported case which has some resemblance and
which I can find is Keen v. The Queen (36). It was a case of a
misdemeanour and the record showed that the defendant pleaded
guilty and that it was "considered and adjudged" that the
defendant enter into recognizances upon condition that he appear
and receive the judgment of the Court at the next Quarter
Sessions and keep the peace etc. The record stated further
respites of judgment and eventually appearance at a sessions
where he was fined, imprisoned and ordered to enter into a
recognizance to keep the peace for a certain time after the
sentence of imprisonment. It was argued that the first order was
the judgment of the Quarter Sessions, especially as it used the
language of a judgment, and that there could only be one
judgment. There was no doubt that this was so, but the replies
of the judges in course of argument are worth noting (37):
"[Patteson J. He entered into recognisances as the price of
having judgment respited. Lord Denman C.J. It is a
conditional order: 'Unless you enter into recognisances,
judgment will be passed upon you.' ErIe J. What is ex-
pressed, is an arrangement, and nothing more. Coleridge J.
Recognizances are always entered into voluntarily: the
party of whom they are required declares himself 'con-
tent'. If he had not been content in this case, judgment
would have been given against him at once.]"
And the case was decided in accordance with these views. But
that case does not establi3h that good behaviour during the
required period relieved the convicted person of the liability in
law for any physical or pecuniary penalty in respect of his
crime. It is authority to the contrary. Then there is Jephson v.
Barker (38), again a case of a misdemeanour.
There is no reference to the practice in any edition of Russell on
Crimes until the 7th ed. (1909), vol. 1, p. 227.
"At common law the Courts have power, except in capital
cases, instead of inflicting immediate punishment, to release
an offender on his entering into a recognizance, with or with-
out sureties, to come up for judgment when called on, and in
the meantime to keep the peace or be of good behaviour."
(36) (1847) 10 Q.B. 928 [116 E.R. 352].
(37) (1847) 10 Q.B., at pp. 930·931 [116
E.R., at p. 353].
(38) (1886) 3 T.L.R. 40.

137 C.L.R.] OF AUSTRALIA. 323
There is no reference to authority, but there is a reference back to
p. 218 where the editors were dealing with the recognizance to be
of good behaviour as a judgment available to the court in respect
of a misdemeanour. It seems to me that everything which can be
found bears out the correctness of the analysis in R. v. Spratling
(39).
It is understandable that complying with the terms of the good
behaviour bond now should be regarded as discharging the
possibility of a judgment of imprisonment or penal servitude on
the conviction: R. v. Smith (40); R. v. McGarry (41). However
at least in case of felony a common law bond to come up for
sentence if called upon to do so within the time limited in the
event of a breach of the bond is not strictly a bar to the court
calling the convicted man up in other events. There may be a
difference in the case of a misdemeanour since a recognizance for
good behaviour was a sentence which could have been imposed in
the first place. If there is a difference, much would depend on
how the judgment was framed. Perhaps this is the explanation
of Stephen J.'s reference in Jephson v. Barker (42) to the bond as
a final judgment. I therefore conclude that, though a common
law bond is now in justice recognized as a practical bar,
nevertheless, if judgment is only deferred, the legal power to give
judgment at least in the case of a felony is not lost and that such
a "common law bond" is distinct from the recognizance which
may be required as part of the final judgment of the court in the
case of a misdemeanour.
In the light of this analysis it is not easy to distinguish the
order made by Judge Goran from a "common law bond" in any
essential respect. It was certainly a deferment of sentence. It
was clearly a recognizance for good behaviour during the period
of deferment. It differed from the ordinary form in that it
required appearance before the Court to receive judgment on a
day certain or when earlier called on in the meantime, instead of
requiring appearance if and when called on at any time during a
stated period. This, of itself, is not a sufficiently distinguishing
feature. A recognizance to keep the peace or for good behaviour
could, and in earlier times regularly did, require the person to
attend at a later sessions. However, Judge, Goran did not
promise that at the end of the twelve months the applicant would
not be sent to prison. Since a common law bond does not in law
prevent a judgment for penal servitude even if its conditions are
kept, this also is not a distinguishing feature. Moreover, if this
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
THE QUEEN.
Jacob. J.
(39) [1911]1 K.B. 77.
(40) (1925) 18 Cr. App. R. 170. 
(41) (1945) 30 Cr. App. R. 187.
(42) (1886) 3 T.L.R., at p. 41.

324 HIGH COURT [1976-1977.
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applicant had kept the conditions of the recognizance it would
hardly have been just to have kept him hoping and trying for a
year and then to have sent him to prison. Be that as it may, it
does not constitute a legal difference between the two forms of
recognizance.
Section 558 of the Crimes Act, 1900, which was enacted in 1974,
specifically empowers a Court to defer sentence and order the
release of an offender upon his entering into a recognizance to be
of good behaviour for a period and to come up for sentence if
called upon. This provision applies to felonies as 'well as to
misdemeanours. It does not in terms provide that the offender
may only be called up for sentence for breach of a condition of the
recognizance. This may possibly be inferred from the provision
in sub-so (6) that:
"A person may be called up for sentence and sentenced on
the breach by him of any of the terms or conditions of a
recognizance entered into by him under this section if the
breach· occurs during the period of the recognizance fixed
under subsection (1), notwithstanding that the period has
expired."
If so, then, at least in the case of felony, the amending section
alters the law, if not the practice, as it previously stood. I do not
find it necessary to decide this question.
But the question remains whether a good behaviour bond
combined with a deferment of judgment or sentence whatever its
form, though it is not a sentence properly so called, is an order
made with reference to the convicted person or his property
within the definition in s. 2 of the Criminal Appeal Act, 1912. A
good behaviour bond in itself is not such an order. The words
"with reference to the convicted person" do not in their context
mean "concerning the convicted person". Coupled as they are
with the words "or his property" they mean "with reference to the
person of him convicted". Otherwise the words "or his property"
would be unnecessary. An order with reference to the property
of A is an order with reference to A in the sense of an order
concerning A but is not an order with reference to A in the sense
of an order with reference to the person of A.
The applicant was in custody at the time Judge Goran made
his order. He was released from that custody on entering into
the recognizance. But this did not make the order for a
recognizance an order with reference to the person of the
applicant because it imposed no restraint upon his person. An
order for a recognizance as part of a judgment on a conviction for
a misdemeanour is different, because in such a case the order

137 C.L.R.] OF AUSTRALIA. 325
provides that the defendant be imprisoned until he finds
surety. Such an order is an order with reference to the person of
such a defendant in that it conditionally imposes a restraint on
his person. But an order for release on recognizance without
more is not such an order. The restraint on the person of such a
defendant does not flow from the order of the trial judge but from
the defendant being in custody pending the determination of the
matter charged.
For these reasons I am of the opinion that neither a so-called
"common law" bond nor the order made by Judge Goran in this
case is a sentence properly so called nor one within the meaning
of that word in the Criminal Appeal Act, 1912. The position
would be different if the power were exercised under s. 440B or
s. 558 (4) of the Crimes Act, 1900 to impose a fine even though
sentence be deferred. This would be an order in respect of the
property of the convicted person. Thereby the legislature has
allowed more than one judgment to be given in respect of the one
conviction or, to express it differently, has allowed judgment to be
given by instalments. Thus there may be two orders on
conviction with respect to a person or his property. No doubt
there are then two opportunities of appeal to the Court of
Criminal Appeal.
It follows therefore that the Supreme Court, sitting as the Court
of Criminal Appeal, had no jurisdiction under the statute creating
the last mentioned Court to hear and determine the appeal by the
Attorney-General under s. 50. I would therefore grant special
leave, allow the appeal and set aside the order of the Court of
Criminal Appeal.
Since in my view this Court must perforce intervene in the
proceedings because of the important question involved, and
must set aside the sentence as invalid, it is necessary to indicate
the course which should now follow. The conditions of the bond
became impossible of performance when the applicant was taken
into custody to serve the sentence imposed upon him by the Court
of Criminal Appeal. The applicant must be brought before
Judge Goran at the earliest opportunity. It seems to me that the
only course now open is so to deal with the applicant that he will
be discharged forthwith. The imposition of a substantial
sentence of penal servitude at this stage would be inconsistent
with fundamental principles of criminal justice. In so stating, I
should not be taken to approve the course taken by Judge Goran
in this particular case. The applicant's crimes warranted a
substantial sentence of penal servitude. If it was intended that
he would be sentenced to penal servitude, then there was no
H. C. OF A.
1976-1977.
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Jacobs J.

326 HIGH COURT [1976-1977.
H. C. OF A. justification for delay. If, on the other hand, it was con-
1976-1977. templated that there might not be a prison sentence, then for the
'-y-J
GRIFFITHS trial judge to take such a view was wrong. This was not a case
T Q
u. for a bond. The best test whether or not this view is correct is to
HE UEEN.
-- ask oneself whether, no matter which judge the matter had come
Jacobs J. before, the likelihood or probability was that the applicant might
have been spared a prison sentence. By applying that test, at
first instance or on review, disparity of sentencing standards
between individual judges is likely to be reduced to some extent
at least. Disparity of sentencing standards is a very serious
deficiency in a system of criminal justice. This is coming more
and more to be recognized. See for instance, most recently, the
Report of the Twentieth Century Fund Task Force on Criminal
Sentencing entitled "Fair and Certain Punishment" (1976), whose
distinguished members were drawn from the judiciary, the law
schools, and law enforcement agencies in the United States. The
report finds that in the United States there is a profound
imbalance between the severity of punishment and the certainty
of punishment and that this is perhaps the major flaw in the
criminal justice system. See p. 3 of the Report. It makes clear
that the main concern is not that wide disparity in sentences is
relatively unfair between different offenders but that it is also
unfair in the absolute sense that the sentences which fall towards
either end of the scale are simply and plainly wrong when they
are measured against fairness and effectiveness. See p. 4. It is
also observed that there is data to suggest that, in the
jurisdictions where the sentencing structure is more indeter-
minate and the greatest discretion is left to the individual judge,
judicially imposed sentences tend to be longer. See p. 13. The
position is aggravated in the United States by the lack in many
States of an equivalent of the 'Court of Criminal Appeal with its
wide powers of review. It is the task of a court of criminal
appeal to minimize disparities of sentencing standards yet still
recognize that perfect uniformity cannot be attained and that a
fair margin of discretion must be left to the sentencing judge.
If the Court of Criminal Appeal had had jurisdiction it would
have been properly exercising its discretion in interfering in the
present case. Under s.5n the Court has a wide discretion
whether or not to interfere even though it may reach the
conclusion that another sentence should have been passed. In
this respect s. 5n gives a wider discretion than s. 6 (3) where the
Court is bound to interfere once it reaches the conclusion that the
sentence was not both warranted in law and one that should

137 C.L.R.] OF AUSTRALIA. 327
have been passed. The trial judge is given a wide discretion
from the circumstance that a Court on appeal will not lightly
conclude that another sentence should have been passed. The
incorrectness of the sentence must be manifest. See House v.
The King (43). But if it does so conclude it must interfere in the
case of a defendant's appeal; it may in its discretion interfere in
the case of an appeal under s. 5D. Any different interpretation of
Whittaker v. The King (44) is in my opinion wrong.
The deterrent to an increased volume of serious crime is not so
much heavier sentences as the impression on the minds of those
who are persisting in a course of crime that detection is likely and
punishment will be certain. The first of these factors is not
within the control of the courts; the second is. Consistency
and certainty of sentence must be the aim. I entirely agree with
the statement at p. 6 of the Report to which I have already
referred that where equal treatment (i.e. consistency in senten-
cing) is not the rule a potential offender is encouraged to play the
odds, believing that he will be among those who escape serious
sanction. Certainty of punishment is more important than
increasingly heavy punishment. According to the Task Force
Report at p. 7 this view is now widely shared by liberals and
conservatives alike and is emerging in the United States as the
key element in proposals for sentencing reforms. Though the
circumstances when a release on a bond is appropriate are no
doubt many and varied, the release on bond of a man who had a
substantial record of previous convictions for similar offences,
who had not desisted from his criminal courses over a substantial,
period of time, who was convicted of offences involving many
thousands of dollars worth of property, much of which had not
been recovered, who had committed one of the offences while on
bail and whose accomplices had received substantial prison
sentences was out of the question.
It may be that Judge Goran deferred sentence only in order to
determine whether he would make a declaration under the
Habitual Criminals Act, 1957. If so, there are two objections to
the course adopted. First, he did not make this clear. Secondly,
it would be wrong to determine whether or not to declare a man a
habitual criminal by reference to his future rather than his past
conduct.
It is necessary to make these matters clear in case my
conclusion in these proceedings should be mistaken for an
indorsement of the procedure adopted in this case.
H. C. OF A.
1976-1977.
'-y--'
GRIFFITHS
V.
THE QUEEN.
Jacobs J.
(43) (1936) 55 C.L.R. 499, at p. 505. (44) (1928) 41 C.L.R. 230.

328 HIGH COURT [1976-1977.
H. C. OF A.
1976·1977.
'-y-J
GRIFFITHS
v.
THE QUEEN.
MURPHY J. Mr. Griffiths' application for special leave to
appeal should be granted, the appeal allowed, and the orders and
sentences of the Court of Criminal Appeal set aside.
Mr. Griffiths pleaded guilty before a stipendiary magistrate to
three charges of breaches of the Crimes Act, 1900 (two of
breaking, entering and stealing and one of being accessory after
breaking, entering and stealing). In accordance with s. 51A (1)
of the Justices Act, he was committed to the District Court at
Sydney where, on 20th September 1974, he again pleaded guilty
to the three charges before Judge Goran. Evidence was given of
his record of convictions and he and his wife gave evidence that
he had had a change of heart and wished to reform. The Judge
said he accepted this evidence and that there were two courses he
could take: to declare Mr. Griffiths an habitual criminal and
send him to gaol for a long time, or to give him a chance to
reform.
His Honour decided on the second course and remanded Mr.
Griffiths for sentence for one year, allowing him to go free
provided he entered into a recognizance of $200 to appear on 19th
September 1975 for sentence. A condition of the recognizance
was his good behaviour and his supervision by a parole officer
who would give reports to the judge every three months. The
remand could be broken at either Mr. Griffiths' instance or the
parole officer's. The Judge said that, if at the end of that year
Mr. Griffiths could satisfy him that he should not be sent to gaol
and that he had made good, he would not sent him to gaol at
all. Mr. Griffiths entered into the recognizance and went free.
The Judge took a course which was lawful (R. v. Spratling
(44a» and which, from his experience and that of his colleagues
in the District Court, had often succeeded in the permanent
reform of persons who would otherwise spend much of the rest of
their lives in prison at a great loss to themselves and families and
at great expense to the community. His attempt to explore an
alternative to imprisonment was in accordance with the general
disillusionment with imprisonment as a means of either
deterrence or rehabilitation (see Report of the Fifth United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders (1975); O'Leary, Gottfredson and Gelman "Con-
temporary Sentencing Proposals" Criminal Law Bulletin, vol. 11
(1975), p. 555) and was designed to safeguard the community by
effecting Mr. Griffiths' rehabilitation. A prison sentence would
not have achieved this and, as the Judge realized, would probably
(44a) [1911] 1 K.B. 77.

137 C.L.R.] OF AUSTRALIA. 329
have confirmed him in a life of crime. The Court of Criminal
Appeal accepted that Judge Goran did not always follow this
course but selected with considerable care the cases in which he
felt it might be justified.
The parole officer reported after three months that Mr. Griffiths
had been most co-operative, had not missed any reporting
appointments, had maintained regular employment with one
employer for the three months, appeared to have a very stable
happy home environment, and that his performance had been
above average.
On 24th October 1974, the Attorney-General gave notice to
appeal to the Court of Criminal Appeal against the Judge's
decision on the ground that the sentence was inadequate. On
7th February 1975, the Court of Criminal Appeal (constituted by
Street C.J. and Lee and Slattery JJ.) rejected submissions for Mr.
Griffiths that the Attorney-General had no right of appeal. The
court heard the appeal, and imposed a sentence of six years
imprisonment with a non-parole period of three years. Mr.
Griffiths was then imprisoned. His counsel explained that the
lengthy delay in applying to this Court for special leave arose
from his inability to get any form of legal aid, despite various
applications, until the matter came to the Australian Legal Aid
Office.
Section 5D of the Criminal Appeal Act, 1912, as amended,
provides that:
"The Attorney-General may appeal against any sentence
pronounced by the Supreme Court or the District Court and
the Court of Criminal Appeal may in its discretion vary the
sentence and impose such sentence as the said Court may
seem proper."
Section 2 of the Criminal Appeal Act states that:
"In this Act, unless the context or subject matter otherwise
requires or indicates-
'Sentence' includes any order made by the court of trial on
conviction with reference to the person convicted, or his
property and any recommendation or order for deportation in
the case of a person convicted; and the power of the Court
of Criminal Appeal to pass any sentence includes a power to
make any such order or recommendation."
The subject matter of s. 5D is the Attorney-General's appeal
known as a Crown appeal. This is an extraordinary remedy,
intended to be invoked only rarely (or criminal justice would
become even more uncertain than it is) and then only for reasons
of great public importance. The context and subject matter
indicate that the word "sentence" is not used with the extended
H. C. OF A.
1976-1977.
'-y--'
GRIFFITHS
V.
THE QUEEN.
Murphy J.

330 HIGH COURT [1976·1977.
H. C. OF A.
1976-1977.
L,--'
GRIFFITHS
v.
THE QUEEN.
Murphy J.
meanings in s. 2. This view is fortified by the use of the word
"pronounced". The SJwrter Oxford English Dictionary, vol. II,
3rd ed., p. 1598, defines "pronounce" as "To utter, declare,
or deliver (a sentence or statement) formally or solemnly; to
proclaim authoritatively or officially. .. To state definitely; or
declare as one's opinion or judgment ... "
The phrase "sentence pronounced" refers to a formal and
definite sentence in its ordinary meaning. Assuming that a
remand for sentence is included in the definition of "sentence" in
s. 2, the context and subject matter of s. 5n indI""cate that
"sentence pronounced" does not include a remand for
sentence. 1 do not base my conclusion on any opinion that what
Judge Goran did was not an "order ... with reference to the
person convicted, or his property" (see s. 2).
As Mr. Griffiths was only remanded for sentence and the judge
had not yet pronounced sentence, the Court of Criminal Appeal
had no jurisdiction to hear the appeal. As there was no lawful
basis for its sentences and orders directing Mr. Griffiths'
imprisonment, the sentences and orders were void.
Even if it had jurisdiction and Judge Goran were mistaken in
what he did (I do not think he was) and should have imposed the
gaol sentence, 1 do not agree with the Court of Criminal Appeal's
decision. It is inhumane to send a man to gaol for six years
when he had been released a few months earlier for the purpose
of reforming him and was observing the conditions of his release
and trying to reform. This drastic reversal offends ordinary
standards of fairness and brings disrepute to the system of
criminal justice.
The massive failure and enormous cost oftraditional sentencing
approaches has aroused worldwide concern and this has been
reflected in numerous conferences, inquiries and learned ar-
ticles. Uniformity in sentencing has some virtue in avoiding
apparent injustice of unequal treatment. But, as the operation of
criminal justice is characterized by gross inconsistencies and
inequalities, the disadvantages of maintaining uniformity as a
primary objective should be realized. Emphasis on and adherence
more or less to a scale of penalties for various offences (the tariff
system) exerts pressure on the primary judges to impose more
severe sentences than they would sometimes wish and in practice
inhibits desirable experimentation and exploration of alternative
courses contemplated by the legislature.
Under s. 5n, the function of the Court of Criminal Appeal is not
simply to do what should have been done by the primary judge. It
may in its discretion vary the sentence; or decline to vary the

137 C.L.R] OF AUSTRALIA. 331
sentence, even if it were ofthe opinion that the sentence should not
have been imposed. Its discretion not to vary may be and should
be used to minimize the increasing of primary sentences, and to
discourage frequent Crown appeals, so that the appeals may be
invoked only rarely as the extraordinary remedy that was intended,
and that it was until recent years.
As there is no lawful order for Mr. Griffiths' imprisonment, he
should be released immediately. Arrangements should be made
for his attendance as soon as possible before Judge Goran so that
the sentencing process may be completed lawfully. Although the
basis contemplated by Judge Goran for his release has been
undermined by imprisonment, the only just course is to release him.
AICKIN J. This is an application for special leave to appeal from
a decision of the Court of Criminal Appeal of New South
Wales. The applicant was charged before a magistrate with two
counts of breaking, entering and stealing and a further count of
being an accessory after the fact to breaking, entering and
stealing. The charges came before a stipendiary magistrate and
the applicant there pleaded guilty to the charges. The magistrate
accepted the plea and committed the applicant to the District Court
pursuant to s. 51A of the Justices Act, 1902 (N.S.W.), as amended,
and refused bail.
This process is referred to as a "committal for sentence" and the
appropriate order was made by the magistrate on 14th August
1974. The applicant was then called up for sentence before Judge
Goran in the District Court on 20th Septem ber 1974 and there, when
asked by the Judge whether he maintained his pleas of guilty, he
answered yes. He also asked the Judge to take into account in
sentencing a further charge of breaking, entering and stealing.
The Judge heard evidence from police witnesses as to prior
convictions and as to the general antecedents of the applicant
and of the circumstances of the offences in question. The prisoner
himself gave evidence as to the circumstances ofthe events giving
rise to the charges and also as to his criminal record and the
personal position of himself and his wife. He also heard evidence
from the applicant's wife as to the position ofthe children and as to
the applicant's general attitude.
At the conclusion of that evidence Judge Goran said that he
accepted the evidence of the applicant and of his wife as to his
having had a change of heart. He said:
"You are at the cross-roads; you have either to be declared
[scil. as an habitual criminal] or sent to gaol for a long time, or
else you have got to be given your chance now, and I prefer, of
H. C. OF A.
1976-1977.
'--,-J
GRIFFITHS
V.
THE QUEEN.
Murphy J.

332 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
'-y--'
GRIFFITHS
v.
THE QUEEN.
Aickin J.
course, to given your chance now, and I am going to do it. I am
going to do it in this way, a way which is familiar, as I say, to
many people in my Court.
I won't deal with you today, I will deal with you in twelve
months time. During that twelve months you are going to be
on a trial period to see what you can do to keep out of crime and
you are going to be under the supervision ofthe Probation and
Parole, and I am going to ask them to give me a report about you
each three months to see how you are going, and I am going to
ask them to help you. That means of course that you will be at
large during that time. Ifyou can satisfy me- I won't give you
any promises-but if you can satisfy me at the end ofthat time
that I should not send you to gaol, that you have made good,
then I won't send you to gaol at all."
The Judge then said:
"The order I will make is that I will remand you for sentence
to 19th September next year to appear here, and I will suffer you
to go at large providing you enter into a bond today; we will
fix the amount, yourself in $200, to appear on that day for
sentence. You are to be of good behaviour in the meantime,
that is one condition. The other condition is that you will
place yourself under the supervision of the Probation and
Parole Service and obey such reasonable directions as an
officer of that Service may give you from time to time, and I
have called for reports every three months. The period of
remand may be broken at the instance of either yourself or the
parole officer."
A recognizance entitled "Recognizance to be of Good Behaviour
and to Appear and Receive Sentence on 19th September 1975"
was entered into by the applicant containing the conditions
referred to. It also contained the more usual condition
customary in "common law bonds" that the offender was to be of
good behaviour during the period to 19th September 1975 and to
appear to receive sentence in respect of the said offence at any
time within the twelve months if called upon to do so. These
words are part of the printed form and no significance has
apparently been attached to the fact that the recognizance was
not in the form as ordered by Judge Goran in that it did not
require him to appear for sentence in any event at the expiration
of the twelve months. However the fact that the recognizance,
except in its heading, was not in accordance with the order
cannot alter or determine the nature and significance of the order
itself.
On 24th October 1974 the Attorney-General of the State of New
South Wales gave notice of appeal to the Court of Criminal
Appeal "against a certain sentence pronounced by His Honour
Judge Goran" when Kevin Idris Griffiths appeared for sentence
on charges of breaking and entering, stealing and being an

137 C.L.R.] OF AUSTRALIA. 333
accessory after the fact to breaking, entering and stealing. The
notice of appeal goes on to say "for the said offences sentence
was deferred upon him entering into a recognizance" in the terms
above referred to and the ground for such appeal was "that the
sentence is inadequate". That notice itself draws attention to
the central issue, namely, whether there was in fact a "sentence"
pronounced at all.
Under the Criminal Appeal Act, 1912 (N.S.W.), as amended,
s. 5n provides that:
"The Attorney-General may appeal to the Court of Criminal
Appeal against any sentence pronounced by the Supreme Court
or any court of quarter sessions ... "
The reference to "Quarter Sessions" is now to be read as referring to
the District Court (see District Court Act, 1973 (N.S. W.)). Section 2
of the Act provides that the word "sentence" includes "any order
made by the court of trial on conviction with reference to the person
convicted, or his property, ... "
The appeal came before the Court of Criminal Appeal which on
7th February 1975 allowed the appeal and ordered that on one
charge of breaking, entering and stealing the applicant should be
sentenced to imprisonment for a period ofthree years, having taken
into account the additional offence referred to. On the charge of
being an accessory the Court imposed a sentence of one year to be
served concurrently with the sentence ofthree years. On the other
offences of breaking, entering and stealing, the Court imposed a
sentence of three years to be served cumulatively on the other three
year sentence, making an aggregate period of six years. A non-
parole period of three years after the date upon which the
respondent is taken into custody was fixed.
It is from that decision that the applicant now seeks leave to
appeal. The basis of the decision of the Court of Criminal Appeal
was first that, by reason of the applicant having formally pleaded
guilty before a magistrate and adhered to that plea before the
District Court, there was "technically speaking, a conviction there
and then" in connexion with the offences. The Court then referred
to the provision in s. 558 of the Crimes Act, 1900 (N.S.W.) (as
inserted in 1974) which enables a court "if it thinks fit [to] defer
passing sentence upon the person and [to] order his release upon his
entering into a recognizance, with or without sureties, in such
amount as the Court directs, to be of good behaviour for such period
as the Court thinks proper and to come up for sentence if called
upon." In its joint judgment the Court said that:
"The deferring of sentence pursuant to s. 558 is clearly within
the appellate jurisdiction of this Court and there seems to be no
reason either in principle or in policy to deny the appellate
H. C. OF A.
1976-1977.
'--r-'
GRIFFITHS
V.
THE QUEEN.
Aickin J.

334 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
~
GRIFFITHS
V.
THE QUEEN.
Aickin J.
authority of this Court where a course achieving and intended
to achieve substantially the same result, is adopted in
consequence either of conviction after trial or conviction on a
plea of guilty."
No reason was assigned for the conclusion that such a decision "is
clearly within the appellate jurisdiction" of the Supreme
Court. The Court then concluded that the course adopted by Judge
Goran was "not a permissible sentencing procedure. It cannot be
supported as a mere exercise of the undoubted power of ad-
journment. ... But the power of adjournment is not properly
exercised if the adjournment is ordered as an integral part of the
sentencing process in the way in which it is involved in the practice
under consideration." They then reviewed the nature of the
charges and the applicant's history and imposed the sentence to
which I have referred. Implicit in the decision are two
propositions, first that there had been a conviction of the applicant
and, second that there had been a sentence imposed, conditions
which are necessary to enable the Attorney-General to appeal under
s. 5n of the Criminal Appeals Act, 1912. Both those propositions
were challenged by counsel for the applicant.
The term "conviction" has been said both in England and in
Australia to be equivocal-see the judgment of Davidson J. in Re
Stubbs (45) where some of the English authorities are referred to
and the decision of the Full Court of the Supreme Court of Victoria
in Reg. v. Tonks and Goss (46) where most of the authorities are
discussed. Generally speaking a verdict of guilty brought in by a
jury constitutes a conviction and some dicta suggest that a plea of
guilty is equally a conviction. The latter proposition however
cannot be sustained.
It is well established that a prisoner may at any time up to
sentence be permitted to change his plea of guilty into a plea of not
guilty. In R. v. Plummer (47) it was said that there could not be any
doubt that the power in the court to allow an accused to withdraw
his plea of guilty could be exercised at any time before, though not
after, judgment. Moreover, it is clear that the court is not obliged
to accept a plea of guilty.
The Full Court in Reg. v. Tonks and Goss said (48):
"The review of the authorities which we have made satisfies
us that a plea of guilty does not of its own force constitute a
conviction. In our opinion it amounts to no more than a
solemn confession of the ingredients of the crime alleged. A
conviction is a determination of guilt, and a determination of
(45) (1947) 47 S.R. (N.S.W.) 329, at
p.335.
(46) [1963] V.R. 121.
(47) [1902] 2 K.B. 339.
(48) [1963] V.R., at pp. 127·128.

137 C.L.R.] OF AUSTRALIA. 335
guilt must be the act of the court or the arm ofthe court charged
with deciding the guilt of the accused. It may be that even a
determination of guilt will not in all cases amount to a
'conviction', for the latter term may be used in a particular
context as meaning not merely conviction by verdict where no
judgment is given, but conviction by judgment ... ; but there
must at least be a determination of guilt before there can be a
conviction. There can accordingly be no conviction on a count
to which an accused pleads guilty until by some act on the part
of the court it has indicated a determination of the question of
guilt. And if there can be no conviction till then, neither can
there be a successful plea of autrefois convict."
I respectfully agree with those views and need not go over the
analysis of the earlier decisions which led that Court to the
conclusion which I have quoted. The same view as to the con-
sequence of a plea of guilty was taken by Gibbs J. when sitting
in the Supreme Court of Queensland in Reg. v. Jerome and
McMahon (49) where he quoted the above passage and agreed
with it. He found that the Court had done nothing upon the
plea of guilty to indicate a determination of the question of guilt
and said (50):
"The Court might do that by imposing a punishment; by
discharging a prisoner on his own recognisances ; by releas-
ing him upon parole; or even perhaps by adjourning the
proceedings to enable information relevant only to the question
of sentence to be obtained. Nothing of that kind occurred in
the present case. The pleas of guilty, it is true, were said to be
accepted, but they were never acted upon in such a way that the
court finally determined the guilt of the accused persons."
Since those decisions the same topic has been considered by the
House of Lords in S. v. Recorder of Manchester (51) where it was
held that the rule that the trial judge has power to permit a plea
of guilty to be changed to not guilty applied not only in respect of
indictable offences but also in respect of summary proceedings
before magistrates. The meaning and significance of the term
"conviction" was considered by Lord Reid (52), Lord McDermott
(53), Lord Morris (54) and Lord Upjohn (55), and their obser-
vations were to the same general effect as the above authorities.
It was argued for the applicant that, before there is a
conviction, the trial judge must use some express words to
indicate that situation, such as "I convict the accused". I can
see no reason why a conviction may not occur by indirect words
or by conduct. If a trial judge does some act consistent only with
H. C. OF A
1976-1977.
'-y-'
GRIFFITHS
V.
THE QUEEN.
Aickin J.
(49) [1964] Qld. R. 595.
(50) [1964] Qd. R., at p. 604.
(51) [1971] AC. 481.
(52) [1971] AC., at p. 489.
(53) [1971] AC., at pp. 493, 494-495.
(54) [1971] AC., at p. 502.
(55) [1971] A.C., at p. 506.

336 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
L,,-'
GRIFFITHS
v.
THE QUEEN.
Aickin J.
there being a conviction, I do not consider that he must utter
some formula to make that action effective. If a trial judge
imposes a sentence without having uttered some such formula, it
would be plain that the accused had been convicted because the
pronouncing of the sentence would be inconsistent with any other
view. This is entirely consistent with the proposition that
conviction is necessarily a further step after a plea of guilty,
though it does not appear that any further step is necessary after
a finding of guilt by a jury.
In the present case the applicant adhered to his plea of guilty
and it is plain that Judge Goran accepted that plea. The Judge
then went on to hear evidence appropriate to assisting in the
determination of the sentence to be imposed, both police evidence
as to the nature of the particular crimes admitted and as to his
past record and on behalf of the accused in mitigation of
sentence. Having heard that evidence what he did was first to
remand the accused for sentence. That in my opinion is an
unequivocal indication that he had found the accused guilty, i.e.
convicted him of the offences, because the step of remanding for
sentence could not be taken by any court without there having
been a conviction. It may be that during the period of the
remand for sentence an accused person might change his mind
and ask to change his plea and there would seem to be no doubt
that he could be allowed to do so. That however is not
inconsistent with his having already been convicted because, as
was said in Reg. v. Phillips and Lawrence (56), per Hart J., the
change of plea operates to set aside the conviction.
The history of the meaning of the word "conviction" was dealt
with by Windeyer J. in Cobiac v. Liddy (57). He there pointed
out that conviction and sentence, which is judgment, are distinct
things. He said that (58):
"A person found guilty and bound over to come up for
judgment when called upon has been 'convicted': R. v.
Rabjohns (59) ; but a person merely bound over to be of good
behaviour has not: R. v. County of London Quarter
Sessions Appeals Committee; Ex parte Metropolitan Police
Commissioner (60)."
A number of possible courses of action are available to a judge
when an accused has been convicted. In New South Wales they
are, apart from the course adopted by Judge Goran, as follows:
(a) To sentence the accused to a term of imprisonment;
(56) (1967) Qd, R. 237, at pp. 288-289.
(57) (1969) 119 C.L.R. 257, at pp. 271-
273.
(58) (1969) 119 C.L.R., at p. 272.
(59) (1913) 3 K.B. 171.
(60) (1948)1 K.B. 670.

137 C.L.R.] OF AUSTRALIA. 337
(b) To remand for sentence, which means remand in
custody unless bail is specifically granted. This provides
(inter alia) an opportunity for the judge to obtain additional
information such as psychiatric reports and to reflect on the
matter. No statutory limit is placed on that period, and
indeed no statutory limit is placed upon the matters which
the judge may take into account;
(c) To proceed under s. 556A of the Crimes Act 1900 which
was introduced in 1929. It then applied only to courts of
summary jurisdiction but by an amendment made in 1974 it
was made applicable to all courts. The section provides:
"(1) Where any person is charged before any court with
an offence punishable by such court, and the court thinks
that the charge is proved, but is of opinion that, having
regard to the character, antecedents, age, health, or mental
condition of the person charged, or to the trivial nature of
the offence, or to the extenuating circumstances under
which the offence was committed, or to any other matter
which the court thinks it proper to consider, it is inexpedient
to inflict any punishment, or any other than a nominal
punishment, or that it is expedient to release the offender
on probation, the court may, without proceeding to
conviction, make an order either-
(a) dismissing the charge; or
(b) discharging the offender conditionally on his entering
into a recognizance, with or without sureties, to be of
good behaviour and to appear for conviction and
sentence when called on at any time during such
period, not exceeding three years, as may be specified
in the order."
It was argued that on its proper construction s. 556A did not
apply at all to the District Court when dealing with an
accused "committed for sentence" by a magistrate because
the accused was not "charged before" the District Court. It
is not necessary in the present case to decide that point;
(d) To proceed under s. 558 of the Crimes Act, 1900 which
was introduced in 1974, which provides in sub-so (1) as
follows:
"A Court before which a person comes to be sentenced for
any offence may if it thinks fit defer passing sentence upon
the person and order his release upon his entering into a
recognizance, with or without sureties, in such amount as
the Court directs, to be of good behaviour for such period as
the Court thinks proper and to come up for sentence if
called upon."
Where an offence is punishable by imprisonment or fine or
both, deferral of sentence under this section does not prevent
H. C. OF A.
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338 HIGH COURT [1976-1977.
H. C. OF A.
1976·1977.
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GRIFFITHS
v.
THE QUEEN.
Aickin J.
the imposition of a fine. On breach of any of the terms or
conditions of his recognizance the person concerned may be
called up and sentenced;
(e) To bind over offender on his own recognizance, with or
without sureties, to be of good behaviour for a stated period
and to come up if called ~pon for sentence in the event of a
breach of any condition of the recognizance. This course
was called in argument the requirement of a "common law
bond". It differs in minor respects only from the use of the
power given by s. 558.
The amendment to s. 556A and the introduction of s.558 came
into operation only a few days prior to the hearing before Judge
Goran. It is clear that he did not purport to act under s. 556A or
under s. 558, nor did he pronounce an order requiring a common
law bond in the sense in which that term was used in argument,
notwithstanding the form of the bond executed by the applicant.
What was done resembles course (b) and course (e). However
Judge Goran remanded the applicant for sentence requiring him
to come up for sentence in twelve months time in order that he
might be informed about the applicant's future behaviour over
that period, not about his past behaviour or his physical or
mental condition at the time of conviction. The order also
required the applicant to come up again for sentence on a fixed
day whether or not in breach of any of the conditions.
It is clear in the light of the decision of the Court of Criminal
Appeal in R. v. Spratling (61) that the courts of Quarter Sessions
in England had at common law power to order a convicted person
to be bound over to come up for judgment when called
upon. Pickford J. delivering the judgment of the Court said
(62):
"We think that, apart from any statutory provisions, the
Court of quarter sessions had power to bind over the appel·
lant to appear for sentence when called upon. It was not,
and could not be, denied that that Court had power to sentence
him at the time he was convicted. We think it equally clear
that it had power to postpone sentence till a future day. It
also had power to release him on bail on his own
recognizances. To bind him over to appear for sentence
when called upon is only to postpone sentence, and in the
meanwhile release the prisoner on bail. This power has
constantly been acted upon, and we see no reason to doubt
that it exists, and that the jurisdiction to pass sentence still
remains in the Court. We must not, however, be taken to
decide that the Court can postpone sentence sine die against
(61) [1911] 1 K.B. 77. (62) [1911] 1 K.B., at p. 81.

137 C.L.R.] OF AUSTRALIA. 339
the will of the prisoner. In this case the appellant was
bound over under the provisions of the Probation Act. Such
provisions may confer a larger power of inserting conditions
in the recognizance than existed before, but they cannot, in
our opinion, divest the Court of the jurisdiction to pass
sentence, which it possessed independently of the Act."
What Judge Goran did in the present case is exactly what is
described in that passage. He did not purport to postpone
sentence sine die against the will of the prisoner because the
postponement was for a fixed time and the order dealt specifically
with the right of the prisoner to bring the period of postponement
to an end at any time. It was said in argument that Spratling's
Case (61) dealt only with "common law bonds" in the sense used
in the argument. A reading of the above passage however shows
that it deals also with postponement of sentence until a fixed
future day. Indeed it treats an order binding a prisoner over to
appear for sentence when called upon as being an example of the
postponement of sentence.
A critical question in this case is whether there is any real
distinction between Judge Goran's order and the "common law
bond", it being clear in my opinion that Judge Goran had power
to make the order which he did make.
The existence of a power to defer sentence is assumed by s. 441
of the Crimes Act, 1900, which provides as follows:
"441. Where a person is convicted of an offence, whether
punishable with death or otherwise, and sentence is deferred,
the court before which he was tried, or any other court of
like jurisdiction, or the Supreme Court, may pronounce judg-
ment against him at any time afterwards."
This section was first introduced in 1883 and the only amend-
ment which has been made to it is the insertion in 1951 of the
words "or any other court of like jurisdiction". By virtue of s. 3
and the Second Schedule, s. 441 applies to all offences and to all
courts. It is clear that the expression "deferred sentence" does
refer to a sentence the operation of which is deferred. Section
579, which was introduced in 1961, also proceeds upon the
assumption that a sentence in respect of a conviction may be
"suspended or deferred upon the person entering into a
recognizance".
The history of the courts of Quarter Sessions in New South
Wales shows that they were initially given and have retained all
the powers and jurisdiction of the courts of Quarter Sessions in
England at the time when they were fir:::t set up in
1823. Originally power was given to the Governor to create such
courts by 4 Geo. IV c. 96, s. XIX of which provided that such
H. C. OF A.
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Aickin J.

340 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
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GRIFFITHS
v.
THE QUEEN.
Aickin J.
courts "shall take cognizance of all matters and things
cognizable in courts of general or quarter sessions in England, so
far as the circumstances and condition of the said colony shall
require and admit". 9 Geo. IV c. 83 repealed the previous Act
and by s. XVII provided that the Governor of New South Wales
with the advice and consent of the Legislative Council should
have power to institute Courts of General and Quarter Sessions
and to give and grant to such courts power and authority to take
cognizance of all matters and things cognizable by the Courts of
General and Quarter Sessions in England. In 1829 the Governor
and the Legislative Council of the Colony of New South Wales
enacted 10 Geo. IV No.7 being "An Act for instituting and
regulating Courts of General and Quarter Sessions in New South
Wales" and by s. 11 of that Act it was provided that:
" ... the said Courts of General and Quarter Sessions shall
have power and authority to take cognizance of all matters
and things cognizable in Courts of General and Quarter
Sessions in England, so far as the circumstances and
condition of the said Colony shall require and admit."
Subsequent legislation maintained that situation from time to
time-see, e.g. Crimes Act, 1900, ss. 568-571 and District Court
Act, 1973, ss. 166-170. It is for that reason that I said above that
there is no doubt that Judge Goran had jurisdiction to make the
order which he did make.
In R. v. London Sessions; Ex parte Beaumont (63) Lord
Goddard C.J., in considering a provision which defined
"sentence" as including "any order made on conviction" with
certain exceptions not presently material, said that these words
meant "an order made as a consequence of a conviction .. ."
rather than on the occasion of conviction, thus distinguishing a
binding over order made under the statute 34 Edw. III c. 1 in 1360
which gave preventive powers not dependant on convic-
tion. This view was followed in Reg. v. Harman (64). Such an
order however is not comparable to the order in this case. That
view may be accepted as applicable to the definition in the
Criminal Appeals Act, 1912 which however differs from the
English definition in other respects.
In Reg, v. Dwyer (65) the Court of Appeal (Criminal Division)
consider~d the definition of the word "sentence" in the Criminal
Appeal Act, 1968 (U.K.) s. 50 (1) which is expressed to include
"any order made by a court when dealing with an offender".
Roskill L.J. said (66):
(63) [1951J 1 K.B. 557, at p. 560.
(64) [1959J 2 Q.B. 134.
(65) (1974) 60 Cr. App. R. 39.
(66) (1974) 60 Cr. App. R., at p. 42.

137 C.L.R.] OF AUSTRALIA. 341
"In principle it is difficult to see what power this Court has
to entertain an appeal [by a prisoner] against the making of a
binding-over order, because it would not appear to be a
sentence within the meaning of the Criminal Appeal Act
1968."
That observation was however obiter as the Court took the view
that an appeal lay because the decision below was a nullity,
following Reg. v. Marquis (67). That definition is wider than the
definition now in question.
There are three decisions in the Court of Criminal Appeal of
New South Wales in which the Court acted upon the basis that an
appeal lay from the court below where the accused had pleaded
guilty and had been bound over to be of good behaviour and to
appear for sentence if called upon at any time within a stated
period. In R. v. McAskill (68) the accused pleaded guilty to a
charge of bigamy and was convicted but released after being
bound over on his own recognizance to be of good behaviour for
three years and to come up for sentence if called upon within that
period. The Crown appealed pursuant to s. 5n of the Criminal
Appeal Act, 1912 and the Court of Criminal Appeal took the view
that the offence was a serious one. Jordan C.J. said (69):
"There is, however, a great difference between imposing a
severe gaol sentence, and imposing no sentence at all, but
allowing a person who has deliberately committed a serious
crime to go scot-free on a recognizance to be of good
behaviour for three years, as the learned trial judge
did. This, in my opinion, is entirely inappropriate to such a
case as the present."
The other members ofthe Court agreed but their judgments are not
reported. The Court of Criminal Appeal therefore imposed a
sentence of imprisonment for two years. Jordan C.J. obviously
meant the words "no sentence at all" to mean "no term of
imprisonment at all". The question of whether there had been a
"sentence" within the meaning of the Criminal Appeal Act, 1912
was not adverted to. In Reg. v. Cooke (70) and Reg. v. Smith (71)
the Court of Criminal Appeal allowed appeals by the Attorney-
General against orders binding over accused persons to be of good
behaviour and to appear for sentence if called upon within a stated
period, but again without reference to whether such orders were
"sentences" as defined.
Section 669A of the Queensland Criminal Code, 1899, as
amended, was introduced in 1939 and provides that the Attorney-
General may appeal against "any sentence", a tenn defined by
H. C. OF A.
1976·1977.
L.y-J
GRIFFITHS
V.
THE QUEEN.
Aickin J.
(67) (1974) 59 Cr. App. R. 228.
(68) (1944) 61 W.N. (N.S.W.) 15:3.
(69) (1944) 61 W.N. (N.S.W.), at p. 154.
(70) (1955) 72 W.N. (N.S.W.) 132.
(71) (1955) 72 W.N. (N.S.W.) 216.

342 HIGH COURT [1976-1977.
H. C. OF A. s. 668 as including "any order made by the court of trial on con-
19~77. viction with reference to the person convicted or his property".
GRIFFITHS Under s. 19 (9) of the Code it is provided that:
u.
THE QUEEN. "When a person is convicted of any offence, the Court or
Justices may, instead of passing sentence, discharge the
Aickin J. offender upon his entering into his own recognizance, with or
without sureties, in such sum as the Court or Justices may think
fit, conditioned that he shall appear and receive judgment at
some future sittings of the Court or when called upon within a
period specified by the Court or Justices and, if the Court or
Justices think fit, that he shall in the meantime keep the peace
and be of good behaviour."
In R. v. McKeown (72) the Full Court heard an appeal by the
Attorney-General against an order under s. 19 (9) under which the
trial judge had discharged the accused upon his entering into his
own recognizance in the sum of £50 to come up for sentence, if called
upon within twelve months. It was argued for the accused that he
had not been sentenced and that there was no appeal. That
argument was rejected and the Court held that the word "sentence"
included an order under s. 19 (9) ofthe Code. Macrossan C.J. said
(73), after referring to the definition, but without giving reasons,
that an order under s. 19 (9) was a "sentence", and added that:
". . . it is true that on a proper proceeding by the Crown
Prosecutor the matter could be brought up again before the trial
Judge to pass a sentence of imprisonment if he so thought
fit. In view of his report, however, he could hardly do that, and
in practice a prisoner given the benefit of s. 19 (9) is not brought
up again for sentence unless he be guilty of some new
wrongdoing."
In Reg. v. Williams (74) where the accused had been convicted of
attempted rape and the trial judge had admitted him to probation
under the Offenders Probation and Parole Act, 1959 (Q.) for a
period of four years, the Attorney-General appealed under s. 669A.
It was argued that the order was not a "sentence" as defined.
The argument was rejected but no reasons were given.
Thus it has been assumed in New South Wales and Queensland
without investigation that the Attorney-General may appeal
against orders releasing a prisoner on a "common law bond", and
its equivalent under the Code.
The position which arises when after conviction an accused is
released on a common law bond was stated by Lowe A.C.J.,
speaking for the Full Court of the Supreme Court of Victoria, in
R. v. Nicholson (75) as follows:
(72) [1940] St. R. Qd. 202.
(73) [1940] St. R. Qd., at pp. 212·213.
(74) [1965] Qd. R. 86.
(75) [1951] V.L.R. 273, at p. 274.

137 C.L.R.] OF AUSTRALIA. 343
"We think that where the Court defers the passing of sentence
and directs a prisoner to enter into a bond to be of good
behaviour and to come up for sentence if and when called upon,
that is a mere postponement or deferring of the completion of
the trial. The trial is not completed until the sentence is
passed. If during the period of the bond there is a breach of it
and the prisoner, upon notice, does not attend before the Court,
the Court has power to bring him before the Court in order to
complete the trial in order that sentence may be passed. That
power is established by inveterate practice of the Courts of
England, and that practice has been followed here. We think
it plain that the Supreme Court has in this regard the powers of
the Courts of common law in England, and that this fact
justifies this practice here."
To the same effect is R. v. David (76), a decision ofthe Court of
Criminal Appeal, where, in granting leave to appeal, HumphreysJ.
said (77):
"It is commonly said that a person is brought up for breach of
recognisance before a court before which he has previously
been convicted, and released on recognisance. The phrase is a
natural one to use, but it is an inaccurate phrase. The person
in those circumstances, and the appellant in this case in these
circumstances, was not brought up for a breach of
recognisance. He was brought up before the court to receive
the judgment of the court, upon a conviction recorded against
him, which up to that date had never been passed. In other
words, he was brought up for sentence. He was brought up
because he had been given an opportunity to be free while he
behaved himself. He had misbehaved himself, and, so far
from observing the condition, he had broken the undertaking."
It is accordingly clear that, unless an accused may be sentenced
twice for the same offence, those courts must have taken the view
that the binding over of the accused on his own recognizance for a
period does not comprise a "sentence" in the ordinary sense of that
term, but is a provisional order which is vacated on his being
brought before the court on breach of the terms of the
recognizance. See also Reg. v. Blow (78) where Gibbs J. referred to
R. v. David (76) and to other cases which made it clear that where an
offender is discharged on his entering into a recognizance and
later comes up for sentence after a breach of the recognizance,
he is sentenced for the original offence and not for the breach
of recognizance. He also said:
"Similarly, it has been held that there is a right of appeal
where a prisoner is dealt with for breach of a probation order
made under the English legislation that corresponds to The
H. C. OF A.
1976-1977.
'-y--J
GRIFFITHS
V.
THE QUEEN.
Aickin J.
(76) [1939] 1 All E.R. 782.
(77) [1939] 1 All E.R., at p. 785. 
(78) [1963J Q.W.N. 1, at p. 3.

344 HIGH COURT [1976-1977.
H. C. OF A.
1976-1977.
L.,-J
GRIFFITHS
V.
THE QUEEN.
Aickin J.
Offenders Probation and Parole Act of 1959 (Reg. v. Green
(79)). Under that legislation the Court, instead of sentencing
the offender, makes a probation order and if the probationer
has failed to comply with any of the conditions ofthe order the
Court may deal with him for the offence in respect of which the
probation order was made."
The question arises whether there is any material difference
between binding over on a "common law bond" to be of good
beha viour for a period of time and to come up for sentence if called
on within that time, and the order made by Judge Goran in this
case. Each is an order which assumes a conviction. The former
is one which may be final in the sense that, if there is no breach
of the conditions of the bond, the matter is at an end on the
expiration of the period of the bond and the judge will not have
any further function to perfonn. If there is a breach, then the
convicted person will come up for sentence within the ordinary
meaning of that tenn for the original offence.
Judge Goran's order required the offender to come up for sentence
on the day fixed, or at some earlier date in accordance with the order
or upon a breach of the conditions of the recognizance, and
accordingly something further remained to be done by the Court in
any event. This however is the only difference and the question is
whether it is sufficient.
In his reasons for judgment Jacobs J. deals with the nature and
history of the common law bond, and the special position with
respect to misdemeanours arising from s. 432 (2) of the Crimes
Act. I respectfully agree with that analysis and with the
conclusion that it demonstrates that there is no essential legal
difference between the requirement of a common law bond and
Judge Goran's order. Moreover the passage quoted above from R.
v. Spratling (80) plainly treats orders in each fonn as being of the
same kind. No doubt Judge Goran retained fonnal power to
impose a term of imprisonment on the applicant coming before him
at the expiration of one year, no breach of the condition having
occurred. However, in practical tenns all that could be done would
be to release the applicant. It is true that no promise was made but
any course other than release would not be proper or just.
This is not a case which can properly be left to be dealt with by the
practice followed by the Court of Criminal Appeal in the past,
because the critical question, i.e. whether such an order is a
"sentence" as defined, has never been examined. It must now be
examined with respect to common law bonds, including orders in
the fonn of that made by Judge Goran.
(79) (1959] 2 Q.B. 127. (80) (1911] 1 K.B., at p. 81.

137 C.L.R.] OF AUSTRALIA. 345
The cases referred to above establish that when, on breach of a
condition of a recognizance, the offender is brought before the court
it is for sentence on the original offence, not for breach of the
recognizan~e. Accordingly the original order cannot be a sentence
in the ordinary meaning of that term. It is therefore necessary to
consider whether the extended definition in s. 2 of the Criminal
Appeal Act, 1912 applies to an order imposing a common law bond
including an order in the form of Judge Goran's order. That
requires consideration of whether it is, first, an order made "on
conviction", and second, whether it is "with reference to the person
convicted, or his property".
For reasons already given there has been a "conviction". The
order could not have been made at all unless there had been a
conviction and it was in truth a consequence of that convic-
tion. Accordingly, I regard it as an order "made on conviction"
within the meaning of the definition. But is it an order so made
"with reference to the person convicted, or his property"? It
plainly does not concern his property as the imposition of a fine
would. What then do the words "with reference to the person
convicted" mean in this context? If they are given a wide
meaning they render the addition of the words "or his property"
unnecessary. The phrase conveys the familiar idea "the person or
the property" of an accused. An order may "refer to" or be made
"with reference to" both, as in the case of a sentence imposing a fine
and a term of imprisonment, or may be with reference to one or the
other, as in the case of the imposition of a fine and in default of
payment a term of imprisonment. Punishment may thus affect
the person or the property. An order requiring a person to enter
into a recognizance, with or without sureties, to be of good
behaviour for a specific period and to come up for sentence at a
specified time or if called upon on breach of a condition of the
recognizance in the specified period does not of itself refer to,
and is not made with reference to, either the person or the
property of the accused.
It appears to me that the words of the definition in their context
mean affecting the person or the property of the accused or the
convicted person. The question therefore remains whether the
order that the accused be released on entering into a recognizance is
one "with reference to his person" in the sense indicated. His
position is changed by that order, but not adversely. The reference
to an order affecting the person or the property of an accused
indicates only one with an adverse effect. The order actually made
did not restrain or otherwise adversely affect the person of the
applicant.
H. C. OF A.
1976-1977.
'-y--J
GRIFFITHS
v.
THE QUEEN.
Aickin J.

346 HIGH COURT [1976-1977.
H. C. OF A. In my opinion the appeal must be allowed because the Attorney-
1976-1977. General had no right of appeal and the Court of Criminal Appeal
L.-y--'
GRIFFITHS no jurisdiction to entertain his appeal. It appears to me that the
T Q. only course now open is so to deal with the applicant that he will be
HE~EN. discharged forthwith. The consequence ofthe view that the order
Aickin J. of the Court of Criminal A~peal should be set aside is that the
applicant must be brought before Judge Goran butno specific order
to that effect is necessary.
In the result therefore special leave should be granted, the appeal
allowed and the order ofthe Court of Criminal Appeal be set aside.
Time within which to make application for special
leave to appeal extended.
Application for special leave to appeal granted.
Appeal allowed. Order of the New South Wales
Court of Criminal Appeal set aside and in lieu
thereof order that the appeal to that Court be
dismissed as incompetent.
Solicitor for the applicant, Legal Aid Office.
Solicitor for the respondent, H. K. Roberts, Crown Solicitor for
the State of New South Wales.
R.A.S.