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8
Court of Criminal Appeal 10 September 2007

Regina v JS

[2007] NSWCCA 272

Also reported as (2007) 175 A Crim R 108
Public order & justice offences
CONSTITUTIONAL LAW TRIAL BY JURY DOUBLE JEOPARDY S 80 THE CONSTITUTION CONSTITUTIONAL LAW QUASI

Citation: Regina v JS [2007] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 10 September 2007
Judge(s): Spigelman CJ; Mason P; McClellan CJ at CL; Hidden J; Howie J

Background

The respondent was tried in the Supreme Court on two indictable offences under the Crimes Act 1914 (Cth), arising from the alleged intentional destruction of computer data that may have been required as evidence in a judicial proceeding. At the close of the Crown's case, the trial judge (Fullerton J) directed the jury to return a verdict of acquittal.

The directed acquittal turned on a question of statutory construction. The trial judge accepted the respondent's submission that s 39 of the Crimes Act 1914 (Cth), read together with the definition of "judicial proceeding" in s 31 and the provisions of the Criminal Code Act 1995 (Cth), required the prosecution to prove that the accused knew the relevant proceedings were federal proceedings. The Crown's case contained no evidence capable of satisfying that element, so acquittal was directed.

The Crown (represented by the Commonwealth Director of Public Prosecutions) appealed to the Court of Criminal Appeal under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). The Commonwealth Attorney-General intervened. The respondent resisted the appeal on both substantive and constitutional grounds, including arguments that an appeal from a verdict of acquittal was incompatible with s 80 of the Constitution, which guarantees trial by jury for Commonwealth indictable offences.

  • Whether a Crown appeal against a directed verdict of acquittal is constitutionally permissible under s 80 of the Constitution, given that provision's guarantee of trial by jury.
  • Whether the finality of an acquittal is an essential characteristic of trial by jury, such that any statutory power to appeal against an acquittal would be constitutionally invalid.
  • Whether the Crown's Notice of Appeal satisfied the requirements of s 107(3) of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Whether the Crimes (Appeal and Review) Act 2001 (NSW), as amended to allow Crown appeals against acquittals, applied retrospectively to the respondent's trial.
  • Whether s 39 of the Crimes Act 1914 (Cth) requires the prosecution to prove that the accused knew the relevant judicial proceeding was a federal proceeding, and whether that question of statutory construction was a "question of law alone" for the purposes of s 107.
  • What the correct meaning of "federal judicial proceeding" and "question of law alone" is within this statutory scheme.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously, with Spigelman CJ delivering the principal judgment and the other four judges agreeing with his Honour.

On the constitutional question, Spigelman CJ concluded that the finality of a verdict of acquittal is not itself an essential characteristic of "trial by jury" as guaranteed by s 80 of the Constitution. His Honour reasoned that s 80 guarantees the mode of trial, not the finality of its outcome. The double jeopardy principle, and the common law's strong resistance to Crown appeals against acquittals, do not derive from s 80 but rather from broader common law doctrine as illustrated by the High Court's analysis in The Queen v Carroll (2002) 213 CLR 635. Mason P's reasons engaged more closely with the constitutional history and comparative materials, including United States authority, but the Court did not ultimately decide the appeal on constitutional grounds.

The appeal failed on a different basis. The Court held that the Crown's appeal could not succeed because the Crown had not established that the legislation authorising the appeal applied to proceedings that had already concluded at first instance before the amending legislation came into force, given the strong presumption against retrospective operation of penal and procedural statutes affecting substantive rights. The Court also considered questions about the validity of the notice of appeal under s 107(3) and the scope of what constitutes a "question of law alone."

On the underlying substantive question of construction, the Court accepted the trial judge's approach: s 39 of the Crimes Act 1914 (Cth), properly construed in light of the Criminal Code, requires proof that the accused knew the proceeding was a federal judicial proceeding. The meaning of "federal judicial proceeding" within s 31 of the Crimes Act is a technical legal term whose meaning is a question of law alone.

Orders Made

  • Leave granted to file the amended Notice of Appeal containing Grounds 2 and 3.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 80 of the Constitution guarantees the mode of trial by jury but does not, of itself, entrench the finality of a verdict of acquittal. The double jeopardy principle operates through common law doctrine rather than through s 80.
  • A strong presumption against retrospective operation applies to legislation that expands the Crown's right to appeal against acquittals, particularly where the original proceedings concluded before the amending provisions came into force.
  • Under s 39 of the Crimes Act 1914 (Cth), the prosecution must prove that the accused knew the relevant judicial proceeding was a federal proceeding. This knowledge requirement flows from reading s 39 together with the "knowledge" fault element provisions of the Criminal Code Act 1995 (Cth).
  • The meaning of a technical legal term such as "federal judicial proceeding" is treated as a question of law alone for the purposes of Crown appeal provisions under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW).
  • In dismissing the appeal, the Court confirmed the enduring strength of the common law principle that the Crown cannot ordinarily appeal against an acquittal, a principle requiring clear and unambiguous statutory language before it can be displaced.

Legislation and Cases Referenced

Legislation:
- The Constitution (Cth), ss 73, 80
- Crimes Act 1914 (Cth), ss 31, 35–40, 42(2), 43(2)
- Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 4.1, 5.1, 5.3, 5.6, 6.2, 9.3
- Crimes (Appeal and Review) Act 2001 (NSW), ss 99(3), 107, 111
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Pt 8
- Judiciary Act 1903 (Cth), s 68(2)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 128(2)

Key Cases:
- The Queen v Carroll (2002) 213 CLR 635
- Cheatle v The Queen (1993) 177 CLR 541
- Brownlee v The Queen (2001) 207 CLR 278
- Coco v The Queen (1994) 179 CLR 427
- Kepner v United States (1904) 195 US 100
- Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
- CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
- Putland v The Queen (2004) 218 CLR 174
- R v Petroulias (2005) 62 NSWLR 663
- Rohde v Director of Public Prosecutions (1986) 161 CLR 119