Re Naumce Petreski v Peter Jesse Cargill [1987] FCA 449 (9 December 1987)

FEDERAL COURT OF AUSTRALIA

Re: NAUMCE PETRESKI
And: PETER JESSE CARGILL
Nos. ACT G81, G82 and G83 of 1986
Criminal Law - Practice and Procedure - Appeal against Sentences -
Sentences Commencing after Dismissal of Appeal by Supreme Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Kelly(1) and Neaves(1) JJ.

CATCHWORDS

Criminal Law - Appellant convicted by Magistrates Court (A.C.T.) on three charges of assault under s.61 Crimes Act 1900 (N.S.W.) in its application to Australian Capital Territory - Appeals against sentences to Supreme Court of the Australian Capital Territory - Appeals dismissed - Further appeals to Federal Court of Australia.

Practice and Procedure - Principles upon which A.C.T. Supreme Court and Federal Court of Australia will vary sentences imposed by Magistrates Court (A.C.T.) - Nature of appeal against sentences from those courts.

Appeal against Sentences - Whether s.17A Crimes Act 1914 (Commonwealth) applicable - Effect of s.17A.

Sentences Commencing after Dismissal of Appeal by Supreme Court - Application for bail pending appeal to Federal Court granted - No application for stay of sentences pending appeal - Whether sentences continued to run.

Magistrates Court Ordinance 1930 (A.C.T.) - ss.145, 152, 188(2), 208(1)(c), 214, 216, 218.

Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory - ss.6, 421, 441A, 477.

Crimes Act 1914 (Commonwealth) - s.17A.

Federal Court of Australia Act 1976 - ss.28, 29.

Federal Court of Australia Rules - Order 52, rule 35(3).

Rogers v. White (Supreme Court of the Australian Capital Territory, 10 December 1986 - unreported).

Kovac v. The Queen (1977) 15 ALR 637

House v. The King [1936] HCA 40; (1936) 55 CLR 499

Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513

Duralla Pty Limited v. Plant [1984] FCA 146; (1984) 54 ALR 29

Quilter v. Mapleson (1882) 9 QBD 672

Victorian Stevedoring and General Contracting Company Pty Limited v. Dignan [1931] HCA 34; (1931) 46 CLR 73.

McCann v. Sheppard (1973) 1 WLR 540

Warr v. Santos (1973) 1 NSWLR 432

Whan v. McConaghy [1984] HCA 22; (1984) 153 CLR 631

HEARING

CANBERRA
9:12:1987

Counsel for the Appellant: Mr J. Purnell

Solicitor for the Appellant: Mr J. Tallarita

Counsel for the Crown: Mr G. Richardson

Solicitors for the Crown: Director of Public Prosecutions

ORDER

The appeals be dismissed.

DECISION

On 22 July 1986 in the Magistrates Court of the Australian Capital Territory the appellant was convicted on three charges of assault laid under s.61 of the Crimes Act 1900 (NSW) in its application to the Territory ("the Crimes Act (NSW)"). That section is in Part III of the Act. The appellant was dealt with summarily by the Magistrate pursuant to s.477 which is in Part XIV. He was sentenced on each offence to three months' imprisonment, the sentences to be served concurrently. He appealed to the Supreme Court of the Territory. On 10 December 1986 Miles CJ dismissed the appeals. The convictions were not in issue before him, the only question being whether they warranted custodial sentences.

2. The facts relevant to the convictions were not in issue before this Court and may be shortly stated. The account which follows is taken from the judgment of the Chief Justice.

3. The appellant and his wife have three children. On Christmas Eve 1985, the wife left home with the children to live at a women's refuge in Kingston. On 1 January 1986, the appellant arranged a meeting in an endeavour to persuade his wife to return home. He met her outside the refuge and a discussion took place over about two hours. Eventually the wife told the appellant that she would go home with him. She returned to the refuge, leading him to believe that she would pack her clothes and bring the children home with her. In fact that was not her intention. She had no intention of returning home and said what she did in order to return to the safety of the refuge. The doors were closed and locked. The appellant waited outside expecting her to come out. When she did not, the appellant began to bang and knock on the doors and windows. Eventually he gained entry to the premises and an incident occurred in which the appellant's wife and two other female residents were assaulted. The Magistrate found that he assaulted the three women "by whacking his wife on the back", hitting one of the other women with his fist when she went to the wife's assistance, and hitting the third woman when she also intervened. As he left the refuge he punched the third woman in the face leaving her with a cut and swollen lip. The appellant was arrested after a struggle in which he struck one of the policemen in the stomach with a fist and then kicked him when he slipped on the ground.

4. The Magistrate took a serious view of the offences. He prefaced his remarks by saying that, because the incident could be described as a domestic incident, there was no reason to regard it lightly "as if a wife or a woman living in a de facto situation is fair game for overbearing assaults by men . . . I think it is time the courts in general make it plain that they do not subscribe to that view".

5. Before his Honour it was submitted that the appeal to the Supreme Court was to be treated as a hearing de novo. His Honour rejected this submission, saying that, where there is an appeal by a convicted person from a Magistrate limited to the question of sentence, the appeal is from a discretionary judgment and it is not for the Supreme Court to substitute its own view. His Honour added that, for an appeal against sentence to succeed, it was necessary either that some error of fact or law be shown on the part of the Magistrate or that it be demonstrated that the sentence was manifestly excessive. His Honour qualified what he had said by referring to a case in which leave was granted to call evidence before the Supreme Court. If that evidence cast new light on the decision under appeal, then the Supreme Court might give effect to its own views on the question of sentence.

6. Having reached that conclusion, his Honour considered the facts of the matter and the submissions about them put to him by counsel. In particular he considered whether the sentences were manifestly excessive. In the result he decided that there was no material before him which suggested that the Magistrate's discretion had miscarried and that accordingly the appeals should be dismissed. In the course of his reasons his Honour emphasized the seriousness of the incident, saying, amongst other things, that, whatever the Magistrate had said about crimes of domestic violence, the matters of the unauthorized entry into the premises by the appellant and the assaults on the other women stood "firmly in the way of a finding by this Court that the sentences imposed by the Magistrate went beyond what was permitted by the exercise of a sound discretionary judgment".

7. After his Honour's decision the appellant, who had been on bail pending the outcome of his appeals to the Supreme Court, was taken into custody so that he might commence serving the terms of imprisonment to which he had been sentenced. On 11 December 1986 he appealed to this Court. The next day he made an application to a Judge of this Court for bail pending the hearing and determination of the appeals. On the footing that, unless bail were granted, the sentences would have been served in full before the appeals to this Court came on for hearing, bail was granted upon certain recognizances being entered into. Certain conditions on the grant of bail were imposed. The recognizances were entered into and the appellant was released from custody.

8. When the appeals came on to be heard on 2 November 1987, counsel for the appellant sought to rely on additional grounds contained in an amended notice of appeal. Counsel for the respondent did not object to this course and leave to file the amended notice of appeal was given. Additionally, the appellant sought leave to rely upon fresh evidence. The evidence was contained in two affidavits sworn by the appellant. The appellant said that in January 1987, his wife left the Australian Capital Territory after placing the three children of the marriage, then aged 12, 11 and 9, in an institution in Canberra known as Marymead. The appellant applied to the Family Court for custody of the children. He was granted custody and the children have been in his care since then. Until recently the appellant and his children resided with his parents who are in their mid-sixties. He applied to the Commissioner for Housing for a three bedroom house for the children and himself and, on 9 October 1987, was allocated a house where he now lives with them. The appellant is employed in a permanent position by the Australian Capital Territory Electricity Authority.

9. There was no objection to this evidence. Counsel for the respondent did not seek to cross-examine the appellant. There was no objection either to the fresh evidence being relied upon.

10. In effect, although they were not all stated in the amended notice of appeal, four grounds of appeal were ultimately relied upon by counsel for the appellant. They may be summarised as follows:-

(1) The learned Chief Justice was in error in deciding

that he could not interfere with the Magistrate's
decision unless he was satisfied that the
Magistrate's discretion had miscarried.

(2) The learned Chief Justice erred in not taking into
account that the Magistrate had, in imposing the
sentences, failed to consider and apply the
provisions of s.17A of the Crimes Act 1914
(Commonwealth).

(3) The evidence given by the appellant of the change
in circumstances which came about in 1987 after
his wife left Canberra should lead to the
suspension of the terms of imprisonment which were
imposed.

(4) When the application for bail was made to this
Court, there was no application by either the
appellant or the respondent for a stay of the
sentences pending the hearing and determination of
the appeals. Despite the appellant's release on
bail, his sentences continued to run and expired
on 9 March 1987. The sentences cannot be revived.

11. It is to be observed that success on the first ground would not necessarily lead to the appellant's succeeding in his object of not being obliged to serve a custodial sentence. The Court would need either to send the matter back to the Supreme Court to be reconsidered - a course we would not favour, particularly as there is no dispute about any of the facts - or itself to exercise the discretion which the Supreme Court should have exercised. Counsel for the appellant did not, however, make any submissions to us which would enable us to take a different view from the Magistrate on the material that was before him. This matter was the subject of comment from members of the Court during the hearing.

12. The first ground relied upon by counsel for the appellant requires reference to the provisions of the Magistrates Court Ordinance 1930 (until 31 January 1986 the Court of Petty Sessions Ordinance 1930) ("the Ordinance"). Part XI deals with appeals to the Supreme Court. In 1984 important amendments were made to the Ordinance by the Court of Petty Sessions (Amendment) Ordinance (No.4) 1984 (No.61 of 1984). The amendments concerned the way in which the Supreme Court should proceed on the hearing of an appeal to it from a Magistrate. The amendments were made to ss.214 and 218. The present form of s.214 is as follows:-

"214. (1) This section applies to an appeal
referred to in paragraph (a), (b), (c),
(d), (e), (f) or (g) of sub-section (1) of
section two hundred and eight of this
Ordinance.

(2) In an appeal to which this section
applies, the Supreme Court shall have regard
to the evidence given in the proceedings out
of which the appeal arose, and has power to
draw inferences of fact.

(3) In an appeal to which this section
applies, the Supreme Court shall -

(a) if it thinks it necessary or expedient
to do so in the interests of justice -

(i) order the production of any
document or other thing that was
an exhibit in, or was otherwise
connected with, the proceedings
out of which the appeal arose,
being a document or thing the
production of which appears to it
to be necessary for the
determination of the appeal;

(ii) order any person who was, or would
have been if he had been called, a
compellable witness in those
proceedings to attend for
examination before the Supreme
Court; and

(iii) receive the evidence, if tendered,
of any witness; and

(b) receive evidence with the consent of the
parties to the appeal.

(4) Where evidence is tendered in an appeal
to which this section applies, the Supreme
Court shall, unless it is satisfied that the
evidence would not afford any ground for
allowing the appeal, receive the evidence
if

(a) it appears to the Supreme Court that the
evidence is likely to be credible and
would have been admissible in the
proceedings out of which the appeal
arose on an issue relevant to the
appeal; and

(b) the Supreme Court is satisfied that the
evidence was not adduced in those
proceedings and there is a reasonable
explanation for the failure to adduce
it."

13. The appeals to the Supreme Court in these matters were appeals of the kind referred to in para. 208(1)(c) of the Ordinance as amended by paragraphs (a) and (c) of s.11 of the Court of Petty Sessions (Amendment) Ordinance (No.3) 1985 (No.41 of 1985) which made provision, inter alia, for appeals to the Supreme Court against convictions recorded and fines and penalties imposed under s.477 of the Crimes Act (NSW). See Graham v. Ninness (1986) 65 ALR 331 at p 332.

14. The present form of s.218 is as follows:-

"218. (1) On an appeal to which this Division
applies, the Supreme Court may -

(a) affirm, reverse or vary the conviction,
order, sentence, penalty or decision
appealed from;

(b) give such judgment, or make such order,
as, in all the circumstances, it thinks
fit, or refuse to make an order; or

(c) set aside the conviction, order,
sentence, penalty or decision appealed
from, in whole or in part, and remit the
proceedings to the Magistrates Court
for further hearing and determination,
subject to such directions as the
Supreme Court thinks fit.

(2) A judgment or order of the Supreme Court
under paragraph (1)(a) or (b) shall have
effect as if it were a decision of the
Magistrates Court and may be enforced by the
Magistrates Court accordingly."

15. Previously, s.214(2) had provided that the Supreme Court was to determine an appeal to which the section applied in accordance with the law in force on the date on which the hearing of the appeal was concluded and on the evidence for the respondent, and the evidence (if any) for the appellant, given before the Supreme Court. Section 214(3) provided for the circumstances in which the depositions of a witness called before the Court of Petty Sessions could be admitted into evidence. Until the amendment, the appeal was treated as a hearing de novo in much the same way as Quarter Sessions appeals were treated, for example, in New South Wales. The former s.218 empowered the Supreme Court to make such order as it thought just. The order was to have effect as if it were a decision of the Court of Petty Sessions and could be enforced by that Court accordingly.

16. When the 1984 amendments to the Ordinance were made, there was published an explanatory statement which was referred to by counsel for the appellant in the course of his submissions. The statement referred to the fact that the appeal was previously "by way of rehearing de novo" and said that the Ordinance changed the appeal "to one of rehearing". It continued by saying that in such an appeal the Supreme Court was able to hear the appeal on the basis of the evidence used in the Court of Petty Sessions but subject to the power conferred on the Supreme Court to receive further evidence if it thinks it appropriate to do so. The object of the amendment was said to be a saving in costs and reduction of delays in matters heard before the Court.

17. On the same day as his judgment in the present case was delivered, Miles CJ gave judgment in Rogers v. White (Supreme Court of the Australian Capital Territory, 10 December 1986 - unreported). He referred to that judgment in the course of his judgment in the present case. In it he gave reasons why he thought it correct to treat the appeal from the Magistrate on a question of sentence as an appeal against the exercise of a discretion. His Honour said (pp 2-3):-

"Mr Wilcox, for the appellant, submitted that
the hearing of the appeals against sentence
should be treated as a re-hearing, in the
same way as an appeal against conviction is
treated as a re-hearing under s.218 of the
Magistrates Court Ordinance 1930 as amended.
However, I think that an appeal against
sentence is an appeal against a discretionary
judgment. The well known principles espoused
in House v. The King [1936] HCA 40; (1936) 55 CLR 499 and
more recently in Gronow v. Gronow [1979] HCA 63; (1979) 144
CLR 513 apply. I do not think that it is
correct to say that this Court is required,
after due consideration of the evidence
before the magistrate, together with any
further evidence which this Court might allow
by leave, under s.218, to substitute its own
judgment for that of the learned magistrate.
Error on the part of the sentencing
magistrate must be established. The
provisions of s.218 of the Magistrates Court
Ordinance, introduced in its present form on
26 October 1984, do not, in my view, change
the fundamental principles to be applied in
the case of an appeal of discretionary
judgment."

18. The question which the first ground raises for consideration is whether his Honour's view is correct. Whilst it is helpful to refer to authorities which may give guidance on a question of this kind, the ultimate question is one of the construction of the Ordinance. Did the legislature intend the judgment of a Magistrate on a question of sentence to be treated by the Supreme Court as an exercise of discretion with the consequence that no appeal will succeed unless it is shown that the exercise of discretion has miscarried; or is the Supreme Court to interfere if it finds error in the Magistrate's decision short of the more manifest error which must exist before a Court will interfere with the exercise of a discretion?

19. Counsel for the respondent drew our attention to the relevant provisions of s.28 of the Federal Court of Australia Act 1976 dealing with this Court's powers of review of sentences on appeals to it. Reliance was placed upon the decision of this Court in Kovac v. The Queen (1977) 15 ALR 637 which is a decision relating to an appeal against sentence to this Court from the Supreme Court of the Australian Capital Territory. The case was said to provide general guidance in relation to the nature of the error an appeal court must find before it will interfere with a sentence imposed by a primary court.

20. The relevant provisions of s.28 of the Federal Court of Australia Act are para.(1)(b) and sub-sec.(5). These provide as follows:-

"28. (1) Subject to any other Act, the Court
may, in the exercise of its appellate
jurisdiction -

(b) give such judgment, or make such order,
as, in all the circumstances, it thinks
fit, or refuse to make an order;

. . .

(5) The powers of the Court under sub-section
(1) in an appeal (whether by the Crown or by
the defendant) against a sentence in a
criminal matter include the power to increase
or decrease the sentence or substitute a
different sentence."

21. In Kovac's case it was held that, when hearing appeals against sentence, the Federal Court should not interfere unless it is satisfied that the discretion exercised by the sentencing court has miscarried or was unsound or unreasonable in its exercise. The Court thought (p 643) that the principles which it should apply in such a case were those propounded by the High Court in House v. The King [1936] HCA 40; (1936) 55 CLR 499 which concerned an appeal against sentence from the Federal Court of Bankruptcy to the High Court. In a well known passage Dixon J (as he was) and Evatt and McTiernan JJ said of such an appeal that it was not enough that the Judges comprising the appellate court considered that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion: see pp 504-5.

22. The statutory provisions governing appeals in criminal matters to this Court and those in question here are expressed in different language. In substance, however, their effect is similar. At first sight it might be thought that the power of the Supreme Court to receive further evidence is wider than that of this Court; cf. Order 52, rule 36 of the Federal Court Rules. But an examination of the provisions of s.214 of the Ordinance discloses that it proceeds in relation to this matter along generally conventional lines. Sub-section (4) provides that the further evidence is not to be received even by consent unless the Court is satisfied, inter alia, that there is a reasonable explanation for the failure to adduce the evidence before the Magistrate. The provisions of s.218 of the Ordinance are in substance comparable with those of s.28 of the Federal Court of Australia Act earlier quoted. It follows that there is not disclosed in the applicable legislation, that is ss.214 and 218 of the Ordinance, any matter which would suggest that the ordinary rule that exercises of discretion are not to be the subject of review on appeal unless error of the kind referred to in House v. The King be demonstrated is not to apply. The later decision of the High Court in Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513 reinforces this conclusion.

23. In those circumstances we are of opinion that Miles CJ was correct in the conclusion to which he came, namely, that he should not interfere with the Magistrate's decision unless he found an error of principle or fact of the kind contemplated in House v. The King or came to the conclusion that the sentences were manifestly excessive. The first ground of appeal therefore fails. We should qualify what we have said by saying, as Miles CJ did in the judgment under appeal, that the position may be different in cases where additional evidence has been led because it may change the factual matrix which the Court is obliged to consider. But unless that occurs, the position is governed by s.214(2) which does not, in our opinion, contain language which would suggest that the legislature did not intend the ordinary rule to apply.

24. We turn to the second ground. Section 17A of the Crimes Act 1914 (Commonwealth), so far as it is relevant, reads:-

"(1) A court shall not pass a sentence of
imprisonment on any person for an offence
against the law of the Commonwealth, or of
the Australian Capital Territory . . ., unless
the court, after having considered all other
available sentences, is satisfied that no
other sentence is appropriate in all the
circumstances of the case.

(2) Where a court passes a sentence of
imprisonment on a person for an offence
against the law of the Commonwealth, or of
the Australian Capital Territory . . ., the
court -

(a) shall state the reasons for its decision
that no other sentence is appropriate;
and

(b) shall cause those reasons to be entered
in the records of the court.

(3) The failure of a court to comply with the
provisions of this section does not
invalidate any sentence.

(4) This section does not apply in relation
to -

(a) an offence against the Act that is
punishable by imprisonment for life or
for a period of, or exceeding, 7 years;
or

(b) any other offence against the law of the
Commonwealth, or any offence against the
law of the Australian Capital Territory
. . ., that is punishable only by
imprisonment.

(5) For the purposes of paragraph (4) (b), an
offence shall be regarded as punishable only
by imprisonment if the court is empowered to
pass a sentence of imprisonment for the
offence, but is not empowered to impose a
fine or other pecuniary penalty on a natural
person for the offence or is empowered to
impose a fine or other pecuniary penalty on a
natural person for the offence only as a
condition of an order discharging or
releasing the person."

25. Section 477 of the Crimes Act (NSW) confers jurisdiction upon the Magistrates Court to deal summarily with common law offences and offences punishable by imprisonment for a term not exceeding, if the offence relates to money or other property, 14 years or, in any other case, 10 years. Section 477(10) reads:-

"Where the Court disposes of a case summarily
pursuant to this section and convicts the
defendant of the offence, then, subject to
sub-sections (11) and (12) (which are not
relevant to the questions we are
considering), but notwithstanding any other
law of the Territory, the Court may not
impose a sentence of imprisonment exceeding
two years nor impose a fine exceeding
$5,000."

26. The penalty provided for an offence under s.61 of the Crimes Act (NSW) is imprisonment for two years. The section does not empower a court to impose a fine. The question is whether s.477(10) confers jurisdiction to impose a fine in respect of an offence for which the penalty prescribed in the section creating it is imprisonment only. In our opinion it does not. The sub-section should be read distributively so that it applies to limit the length of a sentence of imprisonment which a Magistrate may impose where imprisonment is the penalty which is provided for in the section prescribing the offence and, likewise, to limit the amount of the fine which the Magistrate may impose where the prescribed penalty is a fine. It follows that the sub-section does not authorize the imposition of a fine in a case which is tried summarily pursuant to s.477 where the only penalty provided by the section creating the offence is imprisonment. If a Magistrate thinks that a fine is the appropriate penalty, he may act pursuant to s.556B, but that does not affect the question whether s.17A of the Crimes Act (Commonwealth) applies to a case such as this.

27. There is, however, another provision, s.188(2) of the Ordinance, which may provide a source of power in the Magistrates Court to impose a fine in a case where the only penalty provided is imprisonment. It reads:-

"(2) Where the Court has authority under an
Ordinance, other than this Ordinance or any
law, whether past or future, to impose
imprisonment for an offence punishable on
summary conviction, and has no authority to
impose a fine for that offence, it may
notwithstanding, when adjudicating on that
offence, if it thinks that the justice of the
case will be better met by a fine than by
imprisonment, impose a penalty not exceeding
$5,000, and not being of such an amount as
will subject the offender under the
provisions of this Ordinance in default of
payment of the penalty, to any greater term
of imprisonment than that to which he is
liable under the Ordinance authorizing the
imprisonment."

28. The question is whether the words "an offence punishable on summary conviction" are limited to an offence which is punishable only on summary conviction or whether they include an offence which, although indictable, may be dealt with summarily pursuant to provisions such as s.477 of the Crimes Act (NSW). To speak of an offence falling within the latter class as an offence punishable on summary conviction is not an inapt use of language. While s.477 does not refer to the offences to which it applies as offences punishable on summary conviction, its language is to the like effect.

29. Section 188(2) was not referred to in argument and we have, therefore, not had the benefit of submissions about it. However, we are not aware of anything in the history of the provision or in the context in which it appears to require it to be given a restrictive interpretation. Indeed, its place in the scheme of the Ordinance suggests the contrary.

30. Although the matter may not be entirely free from doubt, we think the better view is that s.188(2) does empower the Magistrates Court to impose a fine where, for example, an offence against s.61 of the Crimes Act (NSW) - which does not provide for a penalty other than imprisonment - is tried summarily. On the basis that our view of s.188(2) is correct, the provisions of s.17A of the Crimes Act (Commonwealth) were applicable and were required to be observed.

31. We turn to consider the question whether the provisions of the section were complied with. There is no express mention of the section in either the decision of the Magistrate or the judgment appealed from. However, no provision of the section requires its express mention by a judicial officer who is under a duty to apply it. The important thing the section requires is the statement of reasons why the Court is satisfied that no sentence other than a sentence of imprisonment is appropriate. In the passage from the Magistrate's decision earlier referred to, reasons were given which made it clear why the Magistrate thought that custodial sentences were the only appropriate ones. Section 17A does not seem to have been relied upon in the Supreme Court but Miles CJ gave his own reasons for concluding that imprisonment was required. In those circumstances we are of opinion that the section was in fact complied with, notwithstanding that the terms of it were not expressly referred to by the Magistrate or by his Honour. We should add that, in reaching this conclusion, we have not thought that the provisions of s.17A(3) have any relevant application. The subsection provides that the failure of a court to comply with the provisions of the section does not invalidate any sentence. The provision is not relevant here because the question is not the objective validity of the sentences, but whether, competent appeals having been brought, they should be disturbed for failure of the Magistrate to apply it.

32. For the reasons we have given we reject the submissions made by counsel for the appellant in support of the second ground of appeal.

33. The third ground is based upon the fresh evidence concerning the appellant's present circumstances which was led without objection at the hearing of the appeal. In our opinion there is a fundamental difficulty concerning our jurisdiction to give effect to this ground. Appeals to this Court are not by way of rehearing, but are in the nature of appeals stricto sensu; see Duralla Pty Limited v. Plant [1984] FCA 146; (1984) 54 ALR 29 per Smithers J at pp 37-42, Northrop J at pp 49-54 and Beaumont J at p 56. A consideration of a number of authorities referred to by their Honours reveals the difference between the two classes of appeal. We refer in particular to Quilter v. Mapleson (1882) 9 QBD 672 and Victorian Stevedoring and General Contracting Company Pty Limited v. Dignan [1931] HCA 34; (1931) 46 CLR 73. Appeals to the Court of Appeal in England, to the Court of Appeal in New South Wales and to the Full Court of the Supreme Court of Victoria are appeals by way of rehearing. Those Courts are obliged to consider the matter before them in the light of the state of the law and the facts as they are at the date of the appeal rather than at the date of the hearing at first instance. It is true that there are substantial restrictions on an appellant's ability to lead evidence of facts which have occurred since the date of the judgment appealed from. The way in which Courts should exercise appellate jurisdiction by way of rehearing is illustrated by the decision of the Court of Appeal in England in McCann v. Sheppard (1973) 1 WLR 540 and the Court of Appeal in New South Wales in Warr v. Santos (1973) 1 NSWLR 432. Those cases have no relevance to the present one because of the different nature of the appeal to this Court. We should perhaps add that Order 52, rule 36 of the Rules of this Court, which provides for fresh evidence to be received in certain circumstances, applies, not to evidence of matters occurring after judgment, but to evidence of matters occurring prior thereto which, for one reason or another, was not led at the trial.

34. It follows that we are unable to take account of the appellant's changed circumstances, however sympathetic to his case we might otherwise have been. If the only remaining matter were the third ground of appeal, he would have to be returned to prison unless the appropriate authorities thought that the circumstances were such as to warrant his release on licence. The third ground of appeal must therefore be rejected.

35. The fourth ground raises a novel question. It depends upon the decision of the High Court in Whan v. McConaghy [1984] HCA 22; (1984) 153 CLR 631. In order to understand the competing submissions of the parties on this matter it is necessary to refer to the case in a little detail. Section 8 of the Periodic Detention of Prisoners Act 1981 (N.S.W.) which provides for periodic detention says that a sentence of imprisonment to be served by way of periodic detention shall commence on the date specified in the order of the Court imposing the sentence as the date on which the sentence shall commence. (Cf. s.441A of the Crimes Act (NSW) which says that where a Court passes a sentence, the sentence shall take effect from the date on which it is passed unless the Court otherwise orders.) On 9 August 1983 an offender was sentenced to imprisonment for three months by the District Court of New South Wales which ordered that the imprisonment be served by way of periodic detention. The sentence was to commence on 19 August 1983. The offender gave notice of appeal to the Court of Criminal Appeal and, on 19 August 1983, a Judge of the Supreme Court of New South Wales granted him bail for one week. On 26 August 1983 a Judge of the Supreme Court before whom the offender appeared was informed that the offender had accepted that his appeal was incompetent but that he intended to challenge the decision of the District Court by prerogative writ. He was granted bail on condition that he prosecute that proceeding expeditiously. On 6 December 1983 the Court of Appeal dismissed the application for prerogative relief. The Court directed that the sentence should commence on 16 December 1983.

36. It was held by the High Court that the effect of s.8 of the Periodic Detention of Prisoners Act was that the term of imprisonment began on 19 August 1983 and that the fact that the offender did not actively commence to serve his sentence did not of itself prevent the term of it beginning.

37. In the present case counsel for the appellant has submitted that because there was no stay of proceedings granted at the time the appellant was admitted to bail by the Federal Court the sentences commenced on the date that Miles CJ dismissed the appeals, that is, on 10 December 1986, with the consequence that the sentences have expired.

38. It is common ground that no stay of proceedings was sought or granted. The matter was not the subject of any mention when the application for bail was made.

39. The question is whether the applicable legislation in the Australian Capital Territory and in relation to the powers of this Court is such as to make Whan's case distinguishable. It is to be observed that the relevant proceeding in Whan's case was a proceeding before the Court of Appeal, not the Court of Criminal Appeal. In the course of their reasons for judgment Mason J (as he was) and Murphy, Wilson and Deane JJ said (p 635):-

"It is argued for the applicant that in the
absence of express statutory authority the
Court of Appeal had no power to substitute a
fresh order of commitment to prison for one
the term of which had expired. As examples
of circumstances in which such statutory
authority exists, the applicant points to
cases where a prisoner escapes while serving
a sentence (Crimes Act 1900 (N.S.W.),
s.447A), where an appellant is admitted to
bail pending the hearing of his appeal by the
Court of Criminal Appeal (Criminal Appeal Act
1912 (N.S.W.), s.18(3)) and where a person
convicted and sentenced by a court of petty
sessions appeals to the District Court
(Justices Act 1902 (N.S.W.), ss.122-125B).
The researches of counsel have failed to find
any precedent for the exercise of an inherent
jurisdiction to substitute a fresh order of
commitment to prison for a term of
imprisonment which has expired. It would
seem clear enough that, if the term of
imprisonment for which the applicant was
sentenced had expired, the Court of Appeal
lacked inherent jurisdiction to revitalize
the expired term by directing that it
commence again at some future time. The
applicant's argument tends, however, to
obscure the real question in the case by
assuming that it be answered in his favour.
That question is whether, in the
circumstances, the term of imprisonment which
the applicant was sentenced to serve had
expired."

40. After considering a number of statutory provisions and some authorities, their Honours said (p 639):-

"From what has already been said it will be
seen that our conclusion is based on the
following propositions: (1) that the
concurrent sentences of three months'
imprisonment imposed by the District Court
judge commenced on 19 August 1983; (2) that,
in the absence of a stay of execution, the
bail orders did not have the effect of
suspending or postponing the operation of the
sentences; (3) that the sentences continued
to run notwithstanding that the applicant did
not commence to serve the term of
imprisonment to which he was sentenced; and
(4) that the Court of Appeal (a) had no
inherent jurisdiction to substitute a fresh
order of commitment for a sentence which had
expired, and (b) had no statutory power,
similar to that possessed by the Court of
Criminal Appeal, to vary the sentence so as
to take account of the period spent on bail.
The effect of those propositions is that the
appellant's sentence had run its course by
the time the Court of Appeal heard and
determined the proceedings before it and that
the Court of Appeal lacked jurisdiction to
make an order to the effect that the term of
imprisonment commence on some future date."

41. Section 18(3) of the Criminal Appeal Act 1912 (N.S.W.) referred to in the first of the quoted passages is in the following terms:-

"(3) The time during which an appellant,
pending the determination of his appeal, is
at liberty on bail, and (subject to any
directions which the court may give to the
contrary on any appeal), the time during
which an appellant, if in custody, is
specially treated as an appellant under this
section, shall not count as part of any term
of imprisonment or penal servitude under his
sentence. Any imprisonment or penal
servitude under such sentence, whether it is
the sentence passed by the court of trial or
the sentence passed by the court shall,
subject to any directions which the court may
give as aforesaid, be deemed to be resumed or
to begin to run, as the case requires, if the
appellant is in custody, as from the day on
which the appeal is determined, and if he is
not in custody as from the day on which he is
received into prison, under the sentence."

42. In the course of his judgment in Whan's case, Brennan J, who reached the same conclusion as the other Judges, said (p 642):-

"The grant of bail in the present case
effectively cancelled the sentence and
allowed the applicant 'to escape from
punishment and laugh at justice'. Although
that consequence was unintended, it does not
follow that the Court of Appeal had inherent
jurisdiction to impose a sentence to make up
for the sentence avoided. The limits of the
inherent jurisdiction are determined
primarily by reference to the purposes served
by its exercise, the chief among them being
control of the court's procedure, suppression
of abuses of its process, preventing attempts
to thwart its process, and ensuring fairness
in its proceedings . . ."

43. The expression "escape from punishment and laugh at justice" is taken from the judgment of Buller J in R. v. Brooke (1788) 2 TR 190 at p 196; 100 ER 103 at p 106.

44. Plainly enough the Court in Whan's case would not have reached the same conclusion if that matter had been before the Court of Criminal Appeal rather than the Court of Appeal. That is because of the provisions of s.18(3) of the Criminal Appeal Act (N.S.W.). The question is whether the statutory provisions which govern this Court's procedures contain a provision similar in effect to that section.

45. Reference has earlier been made to the wide terms of s.28 of the Federal Court of Australia Act. The relevant provisions, para. 28(1)(b) and s.28(5), have been quoted. Neither deals with the question of what is to happen in relation to the serving of a period of imprisonment when an appellant desiring to appeal from a sentence imposing it is released on bail. Section 29 provides for stays of proceedings and suspensions of orders, but as earlier mentioned, no stay of proceedings was granted. Order 52, rule 35(3) of the Rules of the Federal Court empower the Court or a Judge, upon such terms as are thought fit, to admit an appellant to bail pending the hearing of his appeal. But again no mention is made of what powers the Court is to have in relation to a sentence which has not been "actively served" because the appellant is on bail pending an appeal against it.

46. In passing it should be emphasised that the powers of this Court on appeal to interfere with verdicts in criminal cases are extremely wide and may be likened to the powers of the courts of criminal appeal; see Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 per Gibbs CJ and Mason J (as he was) at pp 523 et seq, but those are not the powers with which the present case is concerned. In the absence of a provision such as s.18(3) of the Criminal Appeal Act (N.S.W.) a Court of Criminal Appeal would face precisely the same problem. It follows that the provisions of s.28 of the Federal Court of Australia Act provide no answer to the submission. In reaching this conclusion we have had regard to the provisions of s.28(5) which empower the Court to substitute a different sentence from that imposed by the court appealed from. In our opinion those words would not empower the Court to substitute a new sentence to commence after the dismissal of an appeal to it in a case where the sentence imposed by the court below has expired. That is the matter which is at the heart of the decision in Whan's case.

47. Section 145 of the Magistrates Court Ordinance provides that where the Court upon a conviction sentences the defendant to be imprisoned, it shall issue its warrant of commitment accordingly. Section 152 provides for the form of the warrant of commitment. It is to require the police officer to whom it is directed to take and convey the person named therin to a prison therein mentioned and there deliver him to the keeper of such prison. When he sentenced the appellant on 22 July 1986 the Magistrate simply said that the appellant would be sentenced on each of the three charges of assault to three months' imprisonment, the sentences to be served concurrently. Because of s.441A of the Crimes Act (NSW) the sentences took effect from that day. The notices of appeal to the Supreme Court were filed on 22 July 1986. Section 216 of the Magistrates Court Ordinance thereupon applied. It provides that, where an appeal has been duly instituted, the enforcement or execution of, inter alia, the conviction or sentence appealed from shall be stayed until the appeal is concluded or is abandoned or discontinued.

48. When the appeals were dismissed by the Supreme Court on 10 December 1986, s.216 ceased to operate. The appellant was taken into custody presumably pursuant to a warrant of commitment issued pursuant to s.152. As earlier mentioned, he obtained bail from a Judge of this Court on 12 December 1986. His appeals to this Court had been instituted on 11 December 1986. He had therefore begun to serve the terms of imprisonment when he was admitted to bail.

49. When an appeal to this Court is instituted, there is no consequential stay of proceedings of the order appealed from. The enforcement of the order will not be stayed unless a stay of proceedings is granted pursuant to s.29 of the Federal Court of Australia Act. In those circumstances, notwithstanding the differences which there are between a case under the Periodic Detention of Prisoners Act (N.S.W.) and a case such as this, we do not perceive there to be any difference in effect or substance. The appellant was taken into custody and had commenced to serve his sentence. No stay of proceeding was obtained. The reasoning of the High Court in Whan's case establishes that the sentences continued albeit that he was on bail. In our opinion the sentences expired not later than 9 March 1987.

50. Notwithstanding our conclusions in relation to the matters argued on the fourth ground of appeal, there are difficulties in giving the appellant relief. The matter is not one for appeal; rather it is one where the appellant should more appropriately have sought relief by way of declaration of right, injunction or prerogative writ in the Supreme Court. That was the way in which the matter was approached in Whan's case. Nevertheless, we are satisfied that the sentences imposed on the appellant have expired and that this Court has no power to order that the appellant be now taken into custody and imprisoned for terms equivalent to those imposed by the Magistrate. We remain, however, concerned that the dismissal of the appellant's appeals, which must be the consequence of our consideration of the grounds of appeal on which he was able to rely, may lead automatically to his apprehension under the warrant of commitment that was issued in the Magistrate's Court.

51. The orders we propose to make are that the three appeals be dismissed. We shall not include any order or direction that the appellant be taken into custody. In case the view be taken that the warrant nevertheless requires that course, we make it clear that taking him into custody would, in our opinion, amount to an unlawful act so that his imprisonment would itself be unlawful. He would be entitled to institute proceedings in the Supreme Court for relief of the kind above mentioned and also for a writ of habeas corpus to secure his release from prison. Further than that we do not feel it possible to go.