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7
Supreme Court 4 March 1999

Application of Pearson

[1999] NSWSC 143

Also reported as (1999) 46 NSWLR 148
Public order & justice offences
CRIMINAL LAW JURISDICTION

Citation: Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148; 162 ALR 248; 104 A Crim R 282
Court: Supreme Court of New South Wales, Criminal Division
Date: 4 March 1999
Judge(s): Wood CJ at CL

Background

The applicants had been convicted of various offences under s 234 of the Customs Act 1901 (Cth), which are federal offences dealt with summarily. They brought an application under s 474D of the Crimes Act 1900 (NSW), which is Part 13A of that Act, seeking an inquiry into their convictions. They ultimately sought an order referring the matter to the Court of Criminal Appeal.

The Commonwealth (represented by the Australian Government Solicitor) and the NSW Attorney-General both appeared as respondents. Three distinct jurisdictional objections were raised against the application proceeding at all.

The central contest was whether Part 13A of the Crimes Act 1900 could be invoked in circumstances involving summary offences, or offences created by federal rather than State law, and whether the relevant power was one a State court could lawfully exercise in relation to a federal offence.

  • Whether Part 13A of the Crimes Act 1900 applies to summary offences, or is confined to indictable offences.
  • Whether Part 13A applies to convictions for federal offences, or is limited to State offences.
  • Whether the power exercised under s 474E(1) of the Crimes Act 1900 is an administrative (non-judicial) power, and therefore incapable of being exercised by a State court in respect of a federal offence via s 68 of the Judiciary Act 1903 (Cth).
  • Whether s 68 of the Judiciary Act could properly pick up Part 13A in respect of federal offences, and whether that section should be read down to avoid requiring a State court to perform functions on the Commonwealth's behalf without the State's legislative consent.

Decision

Summary offences: Wood CJ at CL held that Part 13A applies to summary offences. Although the court acknowledged it may seem excessive to allow an independent right of review for summary convictions, the general language of s 3 and the Second Schedule to the Crimes Act 1900, directing that Part 13A "shall be in force with respect to all offences, and in whatsoever court tried", could not be disregarded.

Federal offences: The court held that, on a proper construction of Part 13A read alongside s 68 of the Judiciary Act, federal offences are not excluded. Section 68 operates to invest State courts with federal criminal jurisdiction, including the hearing and determination of appeals arising from trials for federal offences. The extended definition of "appeal" in s 3 of the Judiciary Act, which includes "any proceeding to review or call in question the proceedings, decision or jurisdiction of any court or judge", was broad enough to bring a Part 13A inquiry within the scope of that provision.

Administrative versus judicial power: The court distinguished between the two pathways under s 474E(1). A direction for inquiry by a "prescribed person" under s 474E(1)(a) is not judicial in nature; it is an inquiry-and-report function, not a decision-making one. By contrast, referral to the Court of Criminal Appeal under s 474E(1)(b) does involve the exercise of judicial power, and consideration of an application for such a referral is incidental to the exercise of that judicial power. Section 68 of the Judiciary Act therefore picks up s 474E(1)(b) but not s 474E(1)(a).

Reading down s 68: The court declined to read down s 68 of the Judiciary Act to prevent it from imposing obligations on the Supreme Court without the State's consent. Wood CJ at CL reasoned that, by accepting federal criminal jurisdiction generally, the State had implicitly consented to the kind of post-conviction review contemplated by Part 13A. The court noted existing precedent in which State Supreme Courts had exercised jurisdiction under analogous provisions without constitutional objection.

Orders Made

  • The application was allowed.
  • The parties were given liberty to make submissions on costs.
  • Further consideration of whether to refer the matter to the Court of Criminal Appeal was deferred, pending any appeal from this judgment.

Key Takeaways

  • Part 13A of the Crimes Act 1900 applies to summary offences by force of the general language in s 3 and the Second Schedule, which extends the Part to "all offences, and in whatsoever court tried."
  • Federal offences are not excluded from Part 13A; s 68 of the Judiciary Act 1903 (Cth), read with the extended definition of "appeal" in s 3 of that Act, is sufficient to pick up the Part 13A regime for convictions under federal law.
  • A critical distinction exists between the two referral pathways in s 474E(1): the "prescribed person" inquiry under paragraph (a) is non-judicial and cannot be picked up by s 68, while referral to the Court of Criminal Appeal under paragraph (b) involves judicial power and can be.
  • The partial operation of s 68 (picking up one pathway but not the other) does not give the State legislation an "altered meaning" that would make application of s 68 inappropriate, consistent with the approach taken in Brown v R and Cheatle v R.
  • State legislative consent to the exercise of federal criminal jurisdiction extends, at least in this context, to Part 13A post-conviction review; s 68 of the Judiciary Act was not read down to avoid that outcome.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 234
- Crimes Act 1900 (NSW), ss 474D, 474E, 474L
- Crimes Act 1914 (Cth), Pt VIIC
- Judiciary Act 1903 (Cth), ss 3, 39, 68, 78B
- Criminal Appeal Act 1912 (NSW)
- Justices Act 1902 (NSW), Pt 4A

Cases cited or applied:
- Varley v Attorney-General (NSW) (1987) 8 NSWLR 30; 24 A Crim R 413
- Peel (1971) 125 CLR 447
- Rohde v DPP (Cth) (1986) 60 ALJR 627
- Carngham (1978) 140 CLR 487
- Murphy v The Queen (1985) 158 CLR 613
- R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338
- Williams v The King (No 2) (1934) 50 CLR 551
- R v Kirby; ex parte Boilermakers Society of Australia (1956) 94 CLR 243
- The Queen v Davidson (1954) 90 CLR 353
- R v Humby; ex parte Rooney (1973) 129 CLR 231
- The Commonwealth v Mewett (1997) 71 ALJR 1102
- Kesavarajah v The Queen (1994) 181 CLR 230
- Brown v R (1986) 160 CLR 171
- Cheatle v R (1993) 177 CLR 541
- Cheney v Spooner (1929) 41 CLR 532
- Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554
- The Queen v Collie (Court of Appeal, Victoria, 18 December 1992, unreported)
- Perrier v Kerr (Federal Court of Australia, 19 August 1997, unreported)
- R v Lloyd Saxon (NSW Court of Criminal Appeal, 1 April 1998, unreported)
- Application of James William Shepherd (NSW Supreme Court, 13 September 1996, unreported)
- Application of Matthews (NSW Supreme Court, 10 June 1994, unreported)
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