Re Thomas John Davern v Harry Messel [1983] FCA 27; (1983) 67 FLR 90 (25 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS JOHN DAVERN
And: HARRY MESSEL [1983] FCA 27; (1983) 67 FLR 90
No. NTG7 of 1982
Criminal Law - Appeal - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Sheppard(2) and Morling(2) JJ.

CATCHWORDS

Criminal Law - Double Jeopardy - Appeal by prosecution from acquittal - Acquittal obtained on appeal by way of re-hearing from conviction at first instance - Whether acquittal "on the merits" - Whether appeal by prosecution competent - Section 24(1)(b) of the Federal Court of Australia Act 1976.

Commonwealth of Australia Constitution Act - s.73.

Federal Court of Australia Act 1976 - s.24(1)(b).

Justices Act (N.T.) - sections 163, 176, 176A, 177.

Supreme Court Act 1979 (N.T.) - s.21.

Appeal - Criminal law - Conviction at first instance - Acquittal by appellate court - Appeal by prosecutor against acquittal - Competency of appeal - Double jeopardy - Whether acquittal on merits - Whether acquittal "judgment" - Federal Court of Australia Act 1976 (Cth), s. 24(1)(b) - Justices Act 1928 (N.T.), ss 163, 176, 176A, 177 - Supreme Court Act 1979 (N.T.), s. 21 - The Constitution (63 & 64 Vict. c. 12), s. 73.

Criminal Law - Conviction at first instance - Acquittal by appellate court - Prosecutor appealed against acquittal to Federal Court - Competency of appeal - Objection to competency - Double jeopardy - Whether acquittal on merits - Whether acquittal "judgment" - Federal Court of Australia Act 1976 (Cth), s. 24(1)(b) - Justices Act 1928 (N.T.), ss 163, 176, 176A, 177 - Supreme Court Act 1979 (N.T.), s. 21 - The Constitution (63 & 64 Vict. c. 12), s. 73.

Statutes - Interpretation - "Judgment" - Acquittal - Acquittal by appellate court - Prosecutor appealed to Federal Court against acquittal - Competency of appeal - Objection to competency - Double jeopardy - Whether acquittal "judgment" - Federal Court of Australia Act 1976 (Cth), s. 24(1)(b). The respondent was convicted by a court of summary jurisdiction in Darwin of four charges including "taking barramundi from waters declared to be closed" and "using a shotgun in a protected area". He appealed to the Supreme Court of the Northern Territory which heard the case as a rehearing. All the appeals were allowed and the convictions were quashed. The prosecutor appealed to the Full Court of the Federal Court of Australia against the acquittals. Objections were raised to the competency of the appeal on the ground that a person acquitted after a trial on the merits should not be subjected to retrial.

Held: Sheppard and Morling JJ., Fox J. dissenting - The objection to the competency of the appeal should be upheld because: (1) The orders of the Supreme Court of the Northern Territory in the present case are not a "judgment" within the meaning of that word in s. 24(1)(b) of the Federal Court of Australia Act 1976 since by that section, when properly construed, Parliament is not to be taken to have departed from the fundamental principle that an acquittal obtained upon the hearing of an appeal by way of rehearing, like an acquittal obtained in the first instance after a hearing on the merits, is not subject to an appeal to this Court.

Thompson v. Mastertouch T.V. Service Pty Ltd (No. 3) [1978] FCA 24; (1978) 38 FLR 397, applied.

(2) In the present case the appeals to the Supreme Court were by way of rehearing and its orders were acquittals on the merits.

Burgess v. John Connell-Mott, Hay and Anderson Pty Ltd [1979] FCA 39; (1979) 39 FLR 444; R. v. Diakakis (1952) 53 SR (NSW) 15; Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496; Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531, followed.

R. v. Houston (1841) 4 ILR 174; Attorney-General for Ceylon v. Perera (1953) AC 200, distinguished.

Australian Building Construction Employees' and Builders Labourers' Federation v. David Syme & Co. Ltd [1982] FCA 43; (1982) 59 FLR 48; Sweeney v. Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716; Young v. Campbell (1948) 49 SR (NSW) 103; R. v. Garnet-Thomas (1974) 1 NSWLR 702, referred to.

HEARING

1982, August 19-20; 1983, February 25. 25:2:1983
OBJECTION TO COMPETENCY.

Objection to competency of an appeal from orders of the Supreme Court of the Northern Territory, acquitting the respondent, to the Full Court of the Federal Court of Australia.

The judgment which follows deals solely with objections to the competency of the appeal.

D. H. Hodgson Q.C. and F. J. Gaffy, for the appellant.

M. D. A. Maurice Q.C. and T. I. Pauling, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Ward Keller.
E. F. FROHLICH

ORDER

1. The appeal be dismissed as incompetent.

2. The appellant pay the respondent's costs of the appeal.

DECISION

This is an objection to the competency of an appeal. If competent, the appeal will come to this Court as of right. It is taken from a judgment of the Supreme Court of the Northern Territory (Gallop J.). His Honour heard together appeals by a defendant (Professor Messel, the respondent before us) against convictions in the Court of Petty Sessions on four charges brought by the complainant (Mr. Davern, the intending appellant before us).

The charges, and how they were disposed of by the Magistrate, were stated by the learned Judge in his judgment as follows:
"Between 14 and 16 October 1979 at Andranangoo Creek in the Northern Territory of Australia
(1) In waters declared to be closed against the taking of barramundi by the Administrator in Council acting pursuant to s.13(1) of the Fisheries Act and published in the Northern Territory Government Gazette G34 dated 24 August 1979 did take barramundi from those waters contrary to s.13(2) of the Fisheries Act. The penalty imposed was a fine of $400, in default 16 days imprisonment and an order for forfeiture of 2 work-boats, 2 outboard motors, lures, hand lines, fuel tanks, and barramundi;
(2) Using in a protected area namely Melville Island, a weapon that discharges a projectile, namely a shotgun, contrary to s.24(2) of the Territory Parks and Wildlife Conservation Act. The penalty imposed was a fine of $750, in default 30 days imprisonment, and a further $2000 in respect of each additional geese killed, in default 80 days imprisonment;
(3) Killing a protected animal, namely Magpie Geese, (Anseranas Semipalmata), contrary to s.29(1) of the Territory Parks and Wildlife Conservation Act. The penalty imposed was a fine of $750, in default 30 days imprisonment, and a further $2000 in respect of each additional geese killed, in default 80 days imprisonment;
(4) Having under his control the flesh of a protected animal, namely breasts of a protected animal, namely breasts of Magpie Geese (Anseranas Semipalmata) contrary to s.31(1) of the Territory Parks and Wildlife Conservation Act. The penalty imposed was a fine of $250, in default 10 days imprisonment.
In addition the learned magistrate ordered that the appellant pay the informant's costs in the sum of $1377.60 and allowed 28 days to pay the penalties and costs."

The right of appeal to the Supreme Court is given by s.163 of the Justices Act of the Northern Territory. Section 163(1) is as follows:
"(1) The prosecutor or the defendant may appeal to the Supreme Court from any conviction, order, or adjudication of the Court (including a conviction of a minor indictable offence) but not including an order dismissing a complaint of any offence), as hereinafter provided, in every case, unless some Special Act or Ordinance expressly declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits any appeal against it."
The procedure on the hearing of the appeal is governed by s.177, which I should set out:
"(1) Every appeal shall be heard and determined by the Supreme Court in a summary way, and according to the rules and practice in force with reference to the proceedings of the Court in that behalf, and the Supreme Court shall have all the powers and duties, as to amendment and otherwise, of the Justices whose decision is appealed from.

(2) Upon the hearing of the appeal the Supreme Court may -
(a) adjourn the hearing from time to time;
(b) mitigate or increase any penalty, forfeiture, or sum;
(c) affirm, quash, or vary the conviction, order, or adjudication appealed

from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance;
(d) remit the case for hearing or for further hearing before the Court of Summary Jurisdiction; and
(e) make such further or other order as to costs or otherwise as the case requires.
(3) The Supreme Court may upon such terms as it thinks fit at any time before the order of dismissal is drawn up and sealed reinstate any appeal dismissed for want of prosecution."

The provisions respecting the evidence available on the hearing of an appeal are found in sections 176 and 176A and are complex. When the appeals first came on for hearing, directions were sought from the learned Judge concerning their conduct, or at least the conduct of one of them. After hearing argument as to the nature of an appeal under the relevant provisions of the Act, his Honour referred the application for directions in respect of one charge, that concerning the discharge of a firearm, to the Full Court of the Supreme Court pursuant to s.21 of the Supreme Court Act 1979. That Court said in its reasons:
"We have said enough to indicate our view that the nature of an appeal under Part VI is not an appeal in the strict sense and is not a rehearing de novo. It is a rehearing, i.e. a new trial of the issue raised by the notice of appeal using the evidence in the court below with a discretion to receive further evidence. In the exercise of that discretion the court may in special circumstances hear the whole case again. Whatever way the court proceeds, its function is to determine the rights of the parties by reference to the circumstances as they then exist at the conclusion of the appeal, by reference to the law as it then exists and to give such judgment as ought to be given if the case at that time came before the court of first instance."

The Court gave directions as follows:
"1. The appeal be heard as a rehearing of the issues raised by the notice

of appeal.
2. It will be for the presiding judge to determine pursuant to the statute upon material presented to him by the parties or either of them whether further evidence will be admitted and/or whether he considers it expedient in the interest of justice that he should hear viva voce evidence of witnesses who have given evidence in the court below.
3. The respondent shall bear the ultimate onus of proof of facts necessary to support the conviction to the criminal standard."
There was no appeal from these directions, and no question has been raised before us either as to the jurisdiction to make them, or their correctness in law. It is sufficient for present purposes to assume that they were validly made and are correct. Gallop J. subsequently gave further directions.

The four appeals came on for hearing together, before Gallop J., and oral evidence was called. At an advanced stage of the prosecutor's case, it was agreed between the parties, and the Judge concurred, that certain questions of law should be argued, which, if decided against the prosecutor, would be determinative. They were decided against the prosecutor, and his Honour allowed the appeals and quashed the convictions.

The right of appeal to this Court to hear and determine appeals from judgments of the Supreme Court of a Territory is given by s.24(1)(b) of the Federal Court of Australia Act 1976. It was held by a Full Court of this Court in Thompson v. Mastertouch TV Service Pty. Ltd. [1978] FCA 24; (1978) 19 A.L.R. 547 that "judgments" should not include acquittals "on the merits" in criminal cases.

That decision appears to have been queried in Burgess v. John Connel-Mort, Hay and Anderson Pty. Limited (1979) 25 A.L.R. 467 at 479-480, and in Wood v. Lord Mayor of Melbourne (1979) 26 A.L.R. 449 at 452, but was reaffirmed by the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v. Herald and Weekly Times Limited and Anor [1982] FCA 43; (1981-1982) 40 A.L.R. 518 at 520.

In Henderson v. Pioneer Homes Pty. Limited [1979] HCA 55; (1979) 27 A.L.R. 229 the High Court was invited to consider whether Mastertouch was wrong and should be overruled. While Stephen, Mason and Wilson JJ. stated, at p.233, that it was "not necessary to embark on a consideration of that submission", Murphy J. said, at p.233, that Mastertouch was "in accordance with the established principle of interpretation . . . that no appeal lies from an acquittal on a prosecution under Part V of the Trade Practices Act 1974 (Cth) as amended".

The Full Court in Mastertouch was dealing with an acquittal on the merits obtained at first instance. In accordance with established practice, reinforced in this case by the decision in Australian Building Construction Employees' and Builders Labourers' Federation Case, we should not embark on a review of that decision, nor should we seek to cut down its intended operation. The legal policy it sought to apply was that against "double jeopardy". This is a convenient description, but is not in the least definitive of the relevant law. The rule applied in Thompson was stated by Deane J., with whose conclusion and reasons Smithers J. and Riley J. concurred as follows (p.552):
" . . . the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal."
and (at p.560):
"The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction . . .".

The same principle is relied upon in this case by the appellant. The question is whether it avails him where he has been convicted at first instance, and is himself the appellant. Put another way, does the quashing of the convictions by the appellate court mean that the principle of double jeopardy prevents a further appeal, this time by the prosecution. This problem did not arise in Thompson although it was adverted to in passages which will require further consideration.

The researches of counsel and my own have failed to reveal any case in which the rule has been applied in the circumstances mentioned. There are many cases in which appeals have been allowed in those circumstances, but, as pointed out in Thompson, they can be explained, for the most part, at least, either on the basis that they were appeals to the Privy Council, where an exercise of the Royal prerogative is involved, or to the High Court of Australia, which is given appellate power (in general words) under the Constitution (s.73). One recent instance of an appeal being heard by the High Court against a decision of an appellate court ordering a conviction to be quashed is R. v. Darby [1982] HCA 32; (1982) 56 A.L.J.R. 688 (see, for an early case, Attorney General of New South Wales v. Jackson (1906) 3 C.L.R. especially at pp.730, 733, 735, 736). There is at least one reported instance of certiorari going to quash a decision allowing an appeal and acquitting the accused (R. v. Recorder of Leicester (1947) 1 K.B. 726) but there was in that case an element of fraud associated with the material presented on the appeal.

The formulations of the rule given in Thompson, expressed after careful and thorough research, are of interest. They do not refer simply to being "acquitted", but being acquitted "on the merits". This is necessary, because there are many instances of appeals (or proceedings of similar effect) from acquittals where the acquittal is not regarded as having been secured "on the merits". There are cases, for example, where an acquittal was gained because the indictment was defective (R. v. Wilson (1884) 6 Q.B. 620), or where the conviction was quashed for a defect in form (The King v. Allen (1812) 15 East 333, 104 E.R. 870, The King v. Ridgway (1882) 5 B. & Ald. 527, 106 E.R. 1283).

There are other cases where acquittals have been held not to be acquittals on the merits preventing re-prosecution. These include acquittals based on a defective indictment (Vaux's Case [1598] EngR 49; (1591) 4 Co. Rep. 44(a), 76 E.R. 992), the withdrawal of a summons (Ramm v. Gralow, Ex Parte Gralow (No. 2) 1932 Q.J.P.R. 115), the dismissal of an information for non-attendance by the informant (Ward v. Hodgkins (1957) V.R. 715), a defective verdict (R. v. James Lee (1895) 16 N.S.W.L.R. 6), and cases where a defective sentence was given (R. v. Drury (1849) 3 C & K 193; Conlin v. Patterson (1915) 2 K.B. 169).

There is of course no precision about the term "on the merits", but in the ordinary course judgment of acquittal after a trial, or dismissal after a hearing plainly come within it. The "jeopardy" or "renewed jeopardy" which was dealt with in Thompson is constituted by the risk of a re-trial inherent in the appeal. The intended appeal was one by the prosecution. It would not itself have constituted a re-trial but would have involved argument, possibly leading to such a result.

It accords with accepted principles of justice that a person acquitted after a trial on the merits should not be subject to re-trial - even if there has been some error in his favour at the trial. The fact that if put on trial he could plead autrefois acquit (although the scope of the plea and the principle in question may not be entirely coincident) is not to the point when the question is whether the appeal should be entertained.

In some jurisdictions the community is protected against the perpetuation of an erroneous ruling on the law by a trial Judge by special enactments enabling an appeal relative to such a point. In Tasmania, s.401(2)(ii) of The Criminal Code Act 1924, permits the Attorney General to appeal from an acquittal on a question of law with either the leave of the Court of Criminal Appeal or upon the trial Judge's certificate. By s.688(2) of the Criminal Code Act Compilation Act 1913, of Western Australia, the prosecution may appeal against acquittals given by direction or on a plea to jurisdiction. In New South Wales the Crown may appeal from an acquittal on a point of law pursuant to s.5A(2) of the Criminal Appeal Act 1912, but in that case the acquittal is expressly preserved. There are also provisions in some jurisdictions, providing for the review of the decisions of justices which Deane J. discussed at 552-553 in Mastertouch. All these provisions deal only with appeals from what happened at the trial (or hearing); it has apparently been thought unnecessary to deal with appeals from acquittals on appeal.

If a person who has been convicted at his trial appeals, and is successful, one result may be the ordering of a new trial. No-one suggests that this would involve double jeopardy, although the Crown is on the appeal free to support the conviction. If, on the hearing of the appeal, the conviction is quashed, with the result that there is in effect an acquittal of the charge, an appeal by the prosecution has the purpose of restoring the conviction. The respondent may still (in appropriate cases) seek an order for a new trial. In the present case, if the appellant were successful, it could only be on one or more of the questions of law or questions of mixed law and fact which were submitted to his Honour, and this Court, as I see it, would be obliged to remit the matters for further hearing. The convicted person may then succeed, on what would be a full hearing of his own appeal.

In his instructive judgment in Thompson, Deane J. refers briefly (p. 553) to the position taken in the United States. The Courts there have considered the question thoroughly. The assistance offered by their decisions is not affected by differences between United States legislation and our common law. Federal criminal appeal legislation provides that the government can appeal from an acquittal unless the appeal is prohibited by the double jeopardy clause of the United States Constitution (18 U.S.C. 3731 (1976)). The Fifth Amendment to the United States Constitution states:
"(N)or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .".
Its terms follow Blackstone's characterization of the common law of England. He wrote "that no man is to be brought into jeopardy of his life more than once for the same offence" (4 W. Blackstone, Commentaries, (1979) (facsimile of 1st ed.) p.329. The history of the double jeopardy clause is helpfully set out in United States v. Wilson [1975] USSC 40; 420 U.S. 332 (1974) at pp.339-342.

The decisions of United States v. Sanges [1892] USSC 116; (1892) 144 U.S. 310 and Kepner v. United States [1904] USSC 153; (1904) 195 U.S. 100 share a common law basis respecting the meaning of "double jeopardy" with the result that appeals from first instance acquittals were barred, where these were "on the merits" (see United States v. Scott [1978] USSC 181; (1978) 437 U.S. 82, 96-99).

In the United States, an appellate court's order reversing a conviction is not regarded as caught by the "double jeopardy" rule. In Forman v. United States [1960] USSC 20; 361 U.S. 416 (1959) at 426 the Supreme Court of the United States stated that "to hold otherwise would deprive the Government of the right to file a petition for certiorari here in criminal cases decided favourably to the defendant in the Court of Appeals".

In United States v. Wilson, (supra.) it was said, at p.345:
"Similarly, it is well settled that an appellate court's order reversing a

conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged. Forman v. United States, [1960] USSC 20; 361 U.S. 416, 426 (1960). If reversal by a court of appeals operated to deprive the Government of its right to seek further review, disposition in the court of appeals would be 'tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court.' Ibid".

The Court in United States v. Wilson was dealing with an appeal from a trial Judge's ruling of acquittal after a verdict of guilty. Such a course of proceeding is not uncommon in the United States. It was decided that the appeal should not be barred if its success would merely reinstate the original verdict without a second trial. The Court said that there should be no difference between the competency of an appeal in that situation and the competency of an appeal from an acquittal granted by an appellate court. At p.345:
"Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact . . .".
Plainly, the view is taken that double jeopardy as developed from its common law origins was designed to guard against multiple prosecutions.

Although the statements in United States v. Wilson and Forman v. United States with regard to appeals from acquittals granted by appellate courts are very positive, there are grounds for distinguishing those cases from the present. However, there are at least two appellate cases in the United States, both of the Supreme Court of Wisconsin, in which the question now before us did arise, and the preceding statements were applied.

In both cases the defendant was convicted by a Circuit Court and appealed successfully to the Court of Appeals on the ground that the conviction was based on insufficient evidence. Further appeals were taken to the Supreme Court of the State. In Berry v. State (1979) 280 N.W. 2d 204 at p.207, the Supreme Court held that:
"since reversal of the Court of Appeals' decision overturning the conviction would merely reinstate the jury's verdict, review of the decision by this court is not barred by the double jeopardy clause of the federal constitution".

In State v. Bowden (1980) 288 N.W. 2d 139 at p.142, the Court confirmed its jurisdiction to review an appellate acquittal:
"(The) defendant is under no threat of a second trial. The question before us is simply whether the court of appeals erred in overturning the conviction which resulted from his first trial. Whatever our decision, it does not require a new trial. Defendant's conviction will either be reinstated or its reversal affirmed."

The reasoning employed in these cases confirms my understanding of the parameters of the rule against double jeopardy.

Professor Friedland of the University of Toronto, whose work Double Jeopardy (1969) was referred to in argument, suggests that the rule does not, and should not, apply where a convicted person invokes the appellate process. He has this to say (p.293):
"Once the case is in the appellate hierarchy there is no logical reason why the matter should not be determined - assuming that the point involved is of sufficient importance to warrant the attention of the Court - by the very highest tribunal. There can be no surprise or unfairness; the accused simply takes the appellate structure as he finds it. If the House of Lords agrees with the Court of Criminal Appeal then the accused has no complaint; if it disagrees, then the accused is simply back in at least as good a position as he was before invoking the appellate process."

I mention as a matter of interest an informal statement of Professor Glanville Williams in which he seems to have the same view of the law, although he is looking at the aspect of finality. In a letter to The Times of 21 February 1964 at p.13, whilst discussing the efficacy of allowing the Court of Criminal Appeal in England the power to order new trials, he said "the proposition that a conviction or acquittal be final is valid only for a second proceeding, not for a continuation of the original proceeding".

The reasoning and persuasive authority of the cases I have cited to my mind carry conviction. Looking more directly to the basic rule of construction applied in Thompson, there is not in my view any clear or compelling or fundamental principle or rule of the common law which would require the reading down, in a case such as the present, of the otherwise clear terms of s.24(1)(b) of the Federal Court of Australia Act.

R. v. Wilkes [1948] HCA 22; (1948) 77 C.L.R. 511 was a case like the present, namely an appeal by the prosecution against the decision of an intermediate court of appeal quashing a conviction. Dixon J. admitted the jurisdiction of the High Court to entertain such an appeal (although he did not refer to Jackson's Case (supra.)), and the right of the appellant to bring it. He nevertheless cautioned against too liberal an approach in that type of case when considering the discretion to grant special leave to appeal. He said (pp.516-517):
"We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court."
This was an obiter dictum, but it naturally commands close attention. His Honour was dealing with the interpretation placed on s.73, and was relating it to Crown appeals from acquittals. He was, however, referring to a matter which might properly be taken into account in the exercise of an admitted discretion, and for that purpose did not find it necessary to formulate the common law rule with precision. What he said was, with respect, quite correct as a broad proposition, i.e. ". . . it is not in accordance with the general principles of English law to allow appeals from acquittals . . .". I am left with the view that his Honour was not attempting to state, even by way of obiter dictum, a rule of law governing jurisdiction in the present type of case and would not have expected to have his words so used.

It is an interesting circumstance, but one I think which has no direct bearing on the question now before us, that there is an appeal in a criminal matter direct from the Supreme Court of the Northern Territory to the High Court, with the special leave of the latter (s.24(2) of the Federal Court of Australia Act). If we were to hold that this Court had no jurisdiction to entertain this matter, an application could be made to the High Court, which would not have jurisdiction under s.73 of the Constitution, but it may, consistently with its approach under that section, read the similar words of s.24(2) as giving it jurisdiction. If this Court were to entertain the appeal, there would, as it seems to me, be jurisdiction in the High Court to hear a further appeal, pursuant to s.73, and s.33 of the Federal Court of Australia Act 1976.

Because the appeal to the Supreme Court in this case was fore-shortened by the agreement to obtain rulings from his Honour on certain matters regarded as critical, and because, if the intended appeal to this Court is successful, the order likely to be made will be one referring the matter back to the Supreme Court, it can be said that on any view, there is no question of double jeopardy. There will be a continuation of the hearing of the appeal instituted by the convicted person. At least there is, on that approach, no adequate basis for denying the competence of this Court to hear the appeal. The matter was, however, presented to us on the wider basis, and we did not hear argument on the question of what order or orders the Court should make in the event of a successful appeal. I, too, have considered the more general situation. I can add that my present view is that the objection to competency should fail in any event, on the basis just mentioned.

In my view the challenge to competency fails and should be dismissed.

This is an objection to the competency of an appeal from a decision of the Supreme Court of the Northern Territory of Australia ("the Supreme Court"). The appeal, which purports to be brought as of right, is from the whole of the judgment and orders of the Supreme Court pronounced in proceedings whereby appeals by the respondent Harry Messel against convictions made against him by the Court of Summary Jurisdiction at Darwin were allowed, and the convictions quashed.

The appellant claims that he is given the right of appeal from the Supreme Court's judgment by s.24(1)(b) of the Federal Court of Australia Act 1976 (Cth) ("the Act") which gives the court jurisdiction to hear and determine "appeals from judgments of the Supreme Court of a Territory". The question for decision is whether the judgment of the Supreme Court is a judgment within the meaning of s.24(1)(b).

In order to understand the contentions of the parties it is necessary to refer to the history of the proceedings. The respondent was convicted by the Court of Summary Jurisdiction of charges which may be briefly summarised as follows:
(a) taking barramundi from waters declared to be closed against the taking of barramundi contrary to s.13(2) of the Fisheries Act (NT);
(b) using a shotgun in a protected area, namely Melville Island, contrary to s.24(2) of the Territory Parks and Wildlife Conservation Act (NT) ("the Wildlife Act");
(c) killing a protected animal namely, magpie geese, contrary to s.21 of the Wildlife Act;
(d) having under his control the flesh of a protected animal, namely breasts of magpie geese, contrary to s.21 of the Wildlife Act.

The charges were heard before the Chief Stipendiary Magistrate in Darwin. He convicted the respondent of all the charges. The respondent exercised the right of appeal to the Supreme Court given by s.163 of the Justices Act (NT) which provides, inter alia, that "the prosecutor or defendant may appeal to the Supreme Court from any conviction order of adjudication of the Court (including a conviction of a minor indictable offence but not including an order dismissing a complaint of any offence) . . .".

The appeals came before the learned trial judge on 13 March 1981 when directions as to the hearing of the appeals were sought. After hearing argument as to the nature of an appeal under s. 163 of the Justices Act the judge referred that question to the Full Court pursuant to s.21 of the Supreme Court Act 1979 (NT). The Full Court gave the following directions for the hearing of the appeals:
"1. The appeal be heard as a rehearing of the issues raised by the notice of appeal.
2. It will be for the presiding judge to determine pursuant to the statute upon material presented to him by the parties or either of them whether further evidence will be admitted and/or whether he considers it expedient in the interest of justice that he should hear viva voce evidence of witnesses who have given evidence in the court below.
3. The respondent shall bear the ultimate onus of proof of facts necessary to support the conviction to the criminal standard."

On 18 November 1981 the appeals came on for hearing before the trial judge. Argument then ensued as to whether the witnesses who had given evidence before the Chief Stipendiary Magistrate should again be called on the hearing of the appeal. On this matter his Honour ruled as follows:
"There are two bases, at least, upon which I think that the matter should be heard again. That is that sufficient grounds have been shown for the exercise of the court's discretion under sections 176 and 176A of the Justices Act. The first is that having looked at what the magistrate said and despite the words used in the final paragraph of his judgment I am not satisfied that he has applied the correct standard of proof which lies upon a person charged with an offence to excuse the offence on the ground of some exemption or proviso or lawful excuse. I do not say that he has not applied the right test, but I have an uncomfortable feeling about the way in which he has dealt with the evidence of the witnesses.
"Secondly I am satisfied on what I have heard about the matter in very full and complete submissions I have had from the bar table, that it was and remains very substantially a credibility case. There are a lot of credibility issues involved in the case and I, for myself, would not feel able to resolve those issues on an appeal without hearing the witnesses again, or without hearing the witnesses myself.
"I therefore direct that the appeal be heard as a re-hearing of the issues raised by the notice of appeal; I declare that it is in the interests of justice that I should hear viva voce evidence from such witnesses as the respondent wishes to call and I need say no more about it."

His Honour then embarked upon the hearing of the appeals. It was common ground between the parties that the complainant could only succeed on the first charge if he could establish that the waters from which the respondent was alleged to have taken the barramundi had been declared to be closed against the taking of barramundi under the relevant legislation, i.e. that they were "closed waters". It was also common ground that the complainant could only succeed in respect of the remaining charges if he could establish that Melville Island was a protected area under the Wildlife Act. Before counsel for the complainant had completed calling all his evidence but after all the evidence as to whether the relevant waters were closed waters and as to whether Melville Island was a protected area under the Wildlife Act had been called counsel for the parties agreed that the judge should be asked to rule whether prima facie cases had been established in support of the complaints. The course taken by counsel was a convenient and proper course to take. It had the merit of saving the parties expense and the court time.

His Honour agreed to rule whether prima facie cases had been established. After hearing argument he held that a declaration made under the Fisheries Act and relied upon by the appellant to establish that the relevant waters were closed waters was not a valid exercise of the powers conferred by that Act and was ultra vires. He further held that the necessary steps to make Melville Island a protected area under the Wildlife Act had not been taken. He therefore held that prima facie cases had not been established in any of the charges. His Honour was also of the opinion, for other reasons which he gave, that prima facie cases had not been made out in relation to charges (c) and (d) because it had not been shown that magpie geese were protected animals within the meaning of the relevant legislation. Accordingly all the appeals were allowed and the convictions quashed.

After delivering his reasons and in the course of dealing with an application for costs, his Honour said:
"It will be apparent to the parties in the matter that I have reached my decisions about the 4 charges because of the highly unsatisfactory state of the legislation.
"I expressly say that I have not embarked upon a consideration of the merits in the matter. There has been a lot said from the bar table about whether it could possibly be said that even on the appellant's version of the facts he was acting within the scope of the authorities given to him by the fisheries and by the wildlife commission. It should be clearly understood that I have not embarked upon the merits at all; that I have found that there is no prima facie (sic) in respect of any one charge because of the legislation itself and the difficulties of interpretation."

The objection to competency was founded upon the decision of this court in Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547. It was there held by Deane J. (with whom Smithers and Riley JJ. concurred) that the general words used in s.24(1)(a) and (b) of the Act to confer jurisdiction "to hear and determine appeals" do not abrogate the fundamental principle that a person has the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction. The application of this principle, so it was argued, required that the word "judgment" in s.24(1)(b) should be construed so as not to include a judgment of the Supreme Court allowing an appeal against a conviction by the Court of Summary Jurisdiction.

It was submitted formally on behalf of the appellant that Thompson v Mastertouch was incorrectly decided and should not be followed. That is not a submission we would be prepared to entertain; cf. Australian Building Construction Employees etc. Federation v David Syme & Co [1982] FCA 43; (1982) 40 A.L.R. 518 at pp. 520-1. Accepting that this court would follow that decision the appellant argued that there were two reasons for not applying the decision to the facts of the present case. First, it was contended that the acquittals in the Supreme Court had not been obtained after a hearing on the merits of the charges brought against the respondent. Secondly, it was contended that Thompson v Mastertouch has no application to a case in which an acquittal is obtained on appeal to the Supreme Court from the Court of Summary Jurisdiction. We shall now turn to consider these submissions.

In support of the contention that the orders made by the Supreme Court were not acquittals after a hearing on the merits it was argued that proceedings before the learned trial judge were akin to a demurrer in the sense that the acquittals were obtained before all the evidence in support of the complaints had been given and by virtue of rulings on questions of law giving before all the evidence was in. Reliance was placed on The Queen v Houston (1841) IV ILR 174. In that case an accused successfully demurred to an indictment and obtained a judgment allowing the demurrer. On appeal the judgment was reversed. It was held that the accused could still be prosecuted upon the charge brought against him.

We do not think that the course of the proceedings before his Honour bore any resemblance to a demurrer. The complainant called all the evidence upon which he proposed to rely to make out some of the essential elements of the offences charged. The calling of such further evidence as was available to the complainant would have lengthened the hearing without affording additional proof of those essential matters. The complainant's counsel, very sensibly in our view, agreed to argue whether there was sufficient proof of those matters to make out prima facie cases on the charges. He was, of course, not obliged to adopt that course. But having agreed to do so he cannot be heard to say that the decision given was otherwise than a decision given on the whole of the evidence relevant to the critical parts of his case. Such a decision was clearly a decision on the merits, unless it can be said that a decision is not given on the merits if it is a decision based essentially on findings of law. The authorities make it clear that this is not the case. Thus in Benson v Northern Ireland Road Transport Board (1942) AC 520 proceedings brought by the Transport Board against Benson for using a motor vehicle for the carriage of merchandise for hire or reward without the Board's consent were dismissed by a magistrate who upheld a submission that the relevant statutory prohibition alleged to have been infringed was ultra vires the Parliament of Northern Ireland. The House of Lords treated the magistrate's decision as a decision given on the merits. Benson's Case was referred to by Deane J. in Thompson v Mastertouch (supra). His Honour said:
"In R v Tucker (1842) 2 Dow & Ry KB 434, Abbott CJ (with whom Bayley and Holroyd JJ concurred) drew a distinction between the 'dismissal of the complaint in consequence of a mistake of law' and a 'dismissal upon a hearing of the merits'. Examination of the relevant facts indicates, however, that the justices, in that case, had in fact refused to embark upon the actual hearing of the case and it is clear that his Lordship's comments must be understood in that context. In Benson's Case, supra, the only issue involved before the court of summary jurisdiction was essentially a question of law ((1942) AC at 522). It is apparent that any general principle recognized by the above cases applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law."

In Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 25 ALR 467 an information charged that the respondent had dismissed the appellant from his employment by reason of the circumstance, inter alia, that the appellant was a member of a union, contrary to s.5(1) of the Conciliation and Arbitration Act 1904. In the course of the conduct of the prosecutor (the appellant) called evidence of facts and circumstances alleged by him to constitute the elements of the alleged offence. Thereafter counsel for the prosecutor announced that he did not intend to call any further witnesses. Counsel for the respondent thereupon submitted that on the evidence called by the appellant the elements of the offence had not been proved and that the information should be dismissed on the ground that there was no case to answer. The respondent submitted that one of the essential elements of the alleged offences was that the appellant was a member of the union, that on the evidence called by the appellant it appeared that the appellant was not eligible to be a member of the union, and accordingly was not a member thereof. This submission was accepted by the learned trial judge who dismissed the information. It was held that the dismissal of the information was a judgment on the merits because it was obtained after consideration of all the evidence put against the respondent and the relevant law. At p.470 Smithers J said:
"However, counsel for the appellant did contend that as the information had been dismissed upon a plea of no case to answer, the judgment of the court could not be described as one of acquittal after a hearing on the merits. An accused person is acquitted other than on the merits when the proceedings against him are dismissed on some point which involves no adjudication on the facts or on the application of the law to the facts to determine his guilt or innocence. The typical case is one where the relevant tribunal refrains from investigating the merits on the ground that it considers it lacks jurisdiction see Wrote v Wigges [1598] EngR 53; (1591) 4 Co Rep 45b. There is an apparent qualitative difference between such a case and that where, according to the appropriate trial procedures, the facts have been examined and a judgment of guilt or innocence given according to the court's determination of the facts and the relevant law."

In our opinion these cases make it impossible to sustain the proposition that the orders of the Supreme Court were not acquittals on the merits and we accordingly reject the appellants submission to the contrary.

We now turn to consider the appellant's second submission, namely that the principle for which Thompson v Mastertouch (supra) is authority has no application to a case in which there is an acquittal on appeal by an accused person as distinct from a case where the acquittal is obtained at first instance. There is a dearth of English and Australian authority on the point which we find somewhat surprising. The view that the principle ought not to apply in circumstances such as this is put by Professor Friedland in his treatise, Double Jeopardy (1969) at pp.291 et seq. Amongst other things he says (p.293):
"It was the accused, who had been convicted at trial, who was responsible for bringing the case into the appellate courts. Whereas there is an easily-seen division between trial and appeal, the distinction between an appeal and an appeal from an appeal is less clear. Once the case is in the appellate hierarchy there is no logical reason why the matter should not be determined - assuming that the point involved is of sufficient importance to warrant the attention of the Court - by the very highest tribunal. There can be no surprise or unfairness: the accused simply takes the appellate structure as he finds it. If the House of Lords agrees with the Court of Criminal Appeal then the accused has no complaint; if it disagrees, then the accused is simply back in at least as good a position as he was before invoking the appellate process."

In R. v Wilkes [1948] HCA 22; (1948) 77 C.L.R. 511, Dixon J. (as he was) referred to the jurisdiction of the High Court to hear appeals under s.73 of the Constitution (p.516). He referred to the fact that the Court had entertained applications by the Crown for special leave to appeal from judgments of acquittal given by Courts of Criminal Appeal. That is a matter of which we shall say more in a moment. His Honour went on to say (pp.516-517):
"We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court."

This dictum is no doubt obiter but it is highly persuasive. It represents, so far as we are aware, the only authoritative statement on the question which is in point.

During the argument there was discussion concerning appeals by a prosecutor from acquittals by Courts of Quarter Sessions and appeals by the Crown from acquittals by Courts of Criminal Appeal to the Privy Council or the High Court. In our opinion cases dealing with these matters are not of assistance in resolving the present problem.

The nature of a Quarter Sessions appeal is well known and is described in the judgment of Griffith C.J. in Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 C.L.R. 716 at pp.728-730. The proceeding is a hearing de novo. That is the reason why, if the appellant is acquitted, no further appeals lies. That is subject to there not being in force statutory provisions which provide otherwise. It was provisions enabling a prosecutor, in some circumstances, to appeal on questions of law which gave rise to the litigation in Young v Campbell (1948) 49 S.R. (N.S.W.) 103, Reg. v Diakakis (1952) 53 S.R. (N.S.W.) 15 and Reg. v Garnet-Thomas (1974) 1 N.S.W.L.R. 702. In Diakakis Street C.J. referred (p.16) to what was said by Viscount Simon L.C. in Henson v Northern Ireland Road Transport Board (1942) A.C. at 528, namely, " . . . very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge . . .". The learned Chief Justice thus equated an acquittal obtained as the result of an appeal to Quarter Sessions with an acquittal obtained at first instance. In Garnet-Thomas Jacobs P. (as he was) said (p.705), "the law as previously understood had been that once there had been an acquittal on the quarter sessions appeal then the ordinary principle would apply; that the accused could not be again put at risk in respect of that offence". His Honour then referred to Diakakis. We refer also to what was said by Lee J., who delivered the subsequent judgment in the matter (p.708) and to the decision of the High Court in Ward v Williams [1955] HCA 4; (1955) 92 C.L.R. 496 at p.512, where similar views are stated.

Appeals to the Privy Council also stand in a special position. A succession of cases culminating in Attorney-General for Ceylon v Perera (1953) A.C. 200 shows this to be the case. In Perera the Crown sought special leave to appeal from a decision of the Court of Criminal Appeal of Ceylon. That Court had allowed an appeal by the respondent against his conviction for murder. Lord Goddard, who delivered the reasons of the Board, said (p.203):
"The order of the Court of Criminal Appeal in this case does not amount to an acquittal. It merely sets aside the verdict and sentence and orders a new trial, though no doubt the effect of the order is to restore the prisoner to the position of one who has not yet been tried. It is not on this ground that the Board decided they had jurisdiction to entertain the appeal, but because a series of cases has decided, in their opinion, that Her Majesty in Council has power to entertain an appeal from any Dominion or Dependency of the Crown in any matter, whether civil or criminal, by whichever party to the proceedings the appeal is brought, unless that right has been expressly renounced."

Lord Goddard then referred to Reg. v Bertrand (1867) L.R. 1 P.C.520 where Sir John Coleridge had said (at pp. 529-530):
"Upon principle, and reference to the decisions of this Committee, it seems undeniable that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where, either by the terms of a charter or statute, the authority has not been parted with, it is the inherent prerogative right, and, on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally. The interest of the Crown, duly considered, is at least as great in these respects in criminal as in civil cases."

Thus the jurisdiction which the Privy Council has in such matters is rooted in the Royal Prerogative.

The jurisdiction of the High Court to hear appeals is conferred by s.73 of the Constitution. From time to time the High Court has entertained applications for special leave to appeal from judgments of the Supreme Courts of the States which are in the nature of acquittals. In most cases these have been judgments of courts of criminal appeal. This aspect of the jurisdiction of the High Court was the subject of lenghty discussion and analysis by Deane J. in Mastertouch (19 A.L.R. at pp.552-559). His Honour's purpose in making the analysis was to demonstrate that the fact that the High Court had so construed s.73 of the Constitution as to enable it to entertain appeals from what really amounted to acquittals was of no assistance in the construction of s.24 of the Federal Court of Australia Act. In this regard his Honour said (p.558):
"Section 73 of the Constitution defines the outer limits of the appellate jurisdiction of the High Court. The construction of that section involves the construction of provisions defining the amplitude of the ordinary constitutional power of the Commonwealth . . . Within those limits, the Constitution expressly recognizes that there can be legislative regulation and exception. The ordinary principles of construction applicable to such constitutional provisions require that the words used be given their full scope and effect. In contrast, the provisions of s.24 lack the constitutional status of the provisions of s.73 and are quite different in character. The principles of construction applicable to provisions conferring constitutional power upon an organ of national government are not applicable to them."

In a sense what his Honour has said in the lengthy discussion to which we have referred might be thought to be determinative of what should be the outcome of this objection to competency. But despite some passages in his Honour's judgment which seem to equate the setting aside of a conviction by a Court of Criminal Appeal with an acquittal, we do not think that his Honour addressed his mind to the problem that arises for decision in this case. That this was so appears from the following passage in his judgment (p.553):
"On the other hand, the principle that there should be no appeal from a judgment of acquittal had been developed and expressed in cases in which the relevant acquittal had been at the initial trial and not by an appellate court in the course of an appellate chain initiated by a person convicted in the original criminal proceedings. There are obviously some grounds for arguing that the two categories of acquittal are, for present purposes, distinguishable; such a distinction has, in fact, been recognized in United States cases arising under the double jeopardy clause of the Fifth Amendment . . .".
Professor Friedland in his work already cited argues strongly that there is good reason why the two classes of case should be differently approached.

Before proceeding further it is necessary to refer to provisions of the Justices Act in addition to s.163 earlier mentioned. That is the section which provides for the appeal to the Supreme Court from the magistrate and is the section pursuant to which the respondent to this appeal appealed to the Supreme Court of the Northern Territory. With s.163 there should be considered ss.176, 176A and 177. Section 176 is as follows:
"Subject to section 176A, no evidence shall be received on the hearing of the appeal other than such documents as are mentioned in sections 174 and 175 and a record, made by means of sound-recording apparatus or shorthand, of the depositions of a witness in the relevant proceeding produced out of the custody of the clerk for the relevant district, except by consent of the parties or by order of the Supreme Court on appeal."
Sections 174 and 175 provide for the transmission of the lower court's conviction, order or adjudication to the Supreme Court and for the transmission to that Court of the depositions.

Section 176A(1) provides:
"For the purposes of this Part, the Supreme Court may, if it thinks it

necessary or expedient in the interest of justice -
(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Supreme Court, whether or not he was called in those proceedings; and
(c) subject to sub-section (3), receive the evidence, if tendered, of any witness."
The later sub-sections of the section make further provision in relation to the taking of evidence by the Supreme Court.

Section 177(1) is as follows:
"Every appeal shall be heard and determined by the Supreme Court in a

summary way, and according to the rules of practice in force with reference to the proceedings of the Court in that behalf, and the Supreme Court shall have all the powers and duties, as to amendment and otherwise, of the Justices whose decision is appealed from."
Section 177(2) confers upon the Supreme Court wide powers to make orders upon the hearing of the appeal. It is unnecessary to refer to s.177(3).

In its judgment giving directions for the hearing of the appeal the Full Court of the Supreme Court of the Northern Territory concluded that the appeal provided for in s.163 was neither an appeal in the strict sense nor a rehearing de novo. The Court said:
"It is a rehearing, i.e. a new trial of the issue raised by the notice of appeal using the evidence in the court below with a discretion to receive further evidence."
The Court referred with approval to the judgment of Toohey J. in Gabriel v Williamson (Supreme Court of the Northern Territory, 5 March 1979, unreported) where his Honour said:
"The appeal was conducted by counsel on the basis that it was by way of rehearing rather than an appeal stricto sensu. In my view this was what Division 2 of Part VI of the Justices Ordinance called for. However, it was not a rehearing in its most literal form, that is a new trial with the hearing afresh of evidence. See for instance R. v Syme; Ex parte Page (1970) W.A.R. 153. It involved a rehearing of the matter on the evidence used in the court below, with a statutory power to receive further evidence. '. . . the court does not hear the witnesses again'. (Building Licensing Board v Sperway Constructions (Sydney) Pty. Ltd. [1976] HCA 62; (1976) 14 A.L.R. 174 per Mason J. at p.177). See also Nicholas v Hodgins (1978) 21 A.L.R. at pp.243-244."
We would respectfully agree with the views expressed both by the Full Court and by Toohey J. in the passage cited from his judgment.

Also in the course of its judgment the Full Court said that in the exercise of its discretion to receive further evidence, the Supreme Court might in special circumstances hear the whole case again. That is indeed what Gallop J. decided he would do in this case and it is how the matter proceeded. No objection to his proceeding in that way was made by either party and no challenge to that procedure has been made before us.

Although the appeal is by way of rehearing with the discretion to allow the calling of evidence to which we have referred, it should not, in our view, be treated differently for the purposes of the argument in the present case from an appeal by way of rehearing where the discretion of the Court to allow the calling of fresh evidence is not as wide as it is in a case such as this. The way in which a court empowered to deal with an appeal by way of rehearing is required to act is laid down in the majority judgment of the High Court in Warren v Coombes [1979] HCA 9; (1979) 142 C.L.R. 531. Their Honours there said (p.551):
"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation."
Earlier the learned judges had said (p.537):
"We are concerned, of course, with an appellate tribunal to which there is an appeal by way of rehearing (Supreme Court Act, 1970 (N.S.W.), as amended s.75A(5) and which has the powers and duties of the court from which the appeal is brought, including those of drawing inferences and making findings of fact (s.75A(6)(b)). In other words the Court of Appeal is in the same position as the Court of Appeal in England and the Full Courts of the Supreme Courts of the other States. The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law. The authorities which lay down the principles which should guide a court hearing an appeal of that kind have been often and fully discussed, notably in this Court in Paterson v Paterson ((1953) [1953] HCA 74; 89 C.L.R. 212 at pp.218-225), but there are still differences of opinion upon the present question, which arises every day, and is fundamental to the performance of the duties of courts of appeal."

The first of the dicta we have quoted from Warren v Coombes plainly indicates the approach which a court hearing an appeal by way of rehearing should take. Nevertheless such a court may be constrained to accept as correct certain of the findings of primary fact of the court at first instance. This will not be so where the appellate court, as here, has a wide discretion to allow the calling of evidence and exercises that discretion so as to permit evidence to be called. The constraint will disappear completely if the appeal, as in the present case, is in fact conducted as a hearing de novo. Nevertheless, as we have earlier said, we would not take the view that there ought to be a distinction drawn between cases where no evidence is called and cases where either some or all of the evidence is called again.

It is appropriate to mention at this point that we have some reservation as to whether the Full Court was empowered to give a direction in terms of that earlier set out to the effect that the then respondent should bear the ultimate onus of proof of facts necessary to support the conviction to the criminal standard. It may be that the Court intended to do no more than state what in fact the position was for the purpose of assisting the parties. All we would say is that we do not perceive how the Court on an application for directions could make a direction which affected so fundamental a matter as the onus of proof. If the onus became important in the hearing of the appeal, ordinary principles including those propounded in Warren v Coombes would indicate that the onus was upon the prosecutor.

In the absence of any authority directly dealing with the question which we have to decide, we really have to choose between two competing points of view. In the end the question is one of the proper construction of s.24 of the Federal Court of Australia Act. But in construing the section one has to take into account, as was done by the Court in Mastertouch, whether Parliament is to be taken to have departed from any fundamental principle pursuant to which persons acquitted, not at first instance, but on the hearing of an appeal, are entitled to retain the acquittal and not to be put in jeopardy again.

The considerations in favour of the view that there is no such fundamental principle are stated by Professor Friedland in his work earlier cited and are summarised in the opinion of Sir John Coleridge in Bertrand's Case earlier cited. In short, his Lordship referred to the fact that it was the inherent prerogative right and duty of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice in the individual case but also to preserve the due course of procedure generally. His Lordship said that the interest of the Crown was at least as great in those respects in criminal as in civil cases. Counsel for the present appellant submitted that the considerations were the same when one came to consider an acquittal obtained on an appeal instituted by a convicted person and the prosecutor sought to appeal against the acquittal. Professor Friedland argues that view strongly at the pages of his work earlier referred to.

The contrary view is that if a person is acquitted, albeit on appeal, the fundamental principles which are referred to in Mastertouch and the cases there cited, particularly Benson's Case (supra), should have no less application than they do where the acquittal is at first instance. Once there is an acquittal at any stage, the accused should not again be placed in jeopardy. This, of course, is all subject to there not being a statute expressly and clearly providing for an appeal by a prosecutor.

In the present case the appeal to the Supreme Court was by way of rehearing. It is therefore unnecessary to consider what the position would have been if it were an appeal in the strict sense. Accordingly we express no view on that matter. But as regards appeals by way of rehearing we think that the better view is that an acquittal obtained upon the hearing of such an appeal should be treated no differently from an acquittal obtained at first instance. For the reasons given in Warren v Coombes (supra) the appellate court is in as good a position, except in some cases involving challenges to findings of primary fact, as the court of first instance was to make a judgment about all matters going to the merits of the case. Once this is understood there is no reason in principle why any distinction should be drawn between an acquittal at first instance and an acquittal on an appeal by way of rehearing. For that reason we would uphold the objection to the competency of this appeal.

We feel reinforced in our view in this regard by what was said by Dixon J. in the dictum from his judgment cited from Wilkes' Case and by the general sentiments underlying the judgment of Deane J. in Mastertouch.

Two further things remain to be said. First, in the discussion just concluded we have concentrated on considerations which would apply more directly in cases decided upon questions of fact. Here the decision which is impugned is a decision on a question of law. Nevertheless the decision was, as we have sought to demonstrate in the earlier part of this judgment, a decision on the merits.

Secondly, we are not unmindful of the American cases referred to in the judgment of Fox J. which we have had the benefit of reading in draft form. It is, of course, the case that, as was said in Forman v. United States [1960] USSC 20; 361 U.S. 416 (1959) at 426:
"To hold that an appellate court's order reversing a conviction is not subject to review is to deprive the Government of the right to file a petition for certiorari in criminal cases decided favourably to the defendant in an intermediate court of appeal."
But the question in the present case is the proper construction of s.24 of the Federal Court of Australia Act and we think that question is best answered by adopting an approach to interpretation which is but an extension of that adopted in Mastertouch (supra).

Further, we recognise, as was also said in Forman's Case and in turn adopted in United States v Wilson [1975] USSC 40; 420 U.S. 332 (1974) at p.345 that if reversal by a court of appeal operates to deprive the government of its right to seek further review, the decision of the Court of Appeal is "tantamount to a verdict of acquittal, not subject to review by a motion for rehearing, appeal or certiorari". But if considerations of public policy are to be taken into account (as plainly they are in American decisions), the task becomes one of resolving a number of competing public interests. On the one hand there are the public interests in courts proceeding regularly and according to law and in persons guilty of criminal conduct not going free; on the other, there are the public interests in a person acquitted of a criminal charge, albeit on an appeal instituted by himself, not being exposed again to the risk of conviction and in the early finalization of criminal matters. We do not pretend that the balancing of these various public interests is not a difficult exercise or that many will not prefer a different outcome. But we believe that the interpretation of s.24(1)(b) we propose is more in accordance with the history and tradition of the common law than the alternative. If Parliament wishes a different result, it will be easy enough for it to say so in clear terms, as has been done, in relation to appeals from acquittals at first instance, in a variety of situations by many parliaments in the common law world.

The objection to the competency of the appeal should be upheld.