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High Court of Australia |
H C of A
On appeal from the Supreme Court of New South Wales.
12 April 1906
Griffith C.J., Barton and O'Connor JJ.
Blacket, for the respondent, moved to rescind the special leave.
Pollock, for the appellant.
Blacket in reply.
Griffith C.J.
This is an appeal by special leave from an order of the Supreme Court of New South Wales quashing a conviction, the result being that the prisoner has been discharged from custody under the sentence which she was serving. It is contended that under these circumstances an appeal does not lie, because, the prisoner being at present lawfully at large, there can be no means of again subjecting her to custody. As to that it is sufficient to say that the question may be determined when it arises. The question now is whether we are precluded by that difficulty from hearing the appeal. I for my part should not like to give my support to such a contention. In Reg. v. Bertrand[1] the Supreme Court of New South Wales had granted a venire de novo, on the application of the prisoner who had been convicted, and it was objected that an appeal from that decision ought not to be entertained by the Privy Council. On that point their Lordships of the Privy Council said:—"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, as 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; but the exercise of this prerogative is to be regulated by a consideration of circumstances and consequences; and interference by Her Majesty in Council in criminal cases is likely in so many instances to lead to mischief and inconvenience, that in them the Crown will be very slow to entertain an appeal by its officers on behalf of itself or by individuals. The instances of such appeals being entertained are therefore very rare." Now, that lays down the principle acted upon by the Privy Council. The appellate jurisdiction of this Court is given by the Constitution, and this case clearly falls within the words of sec. 73. That section gives the Court jurisdiction to entertain appeals from all judgments, decrees, orders, and sentences of the Supreme Courts of any States, with such exceptions and subject to such regulations as Parliament may prescribe. Parliament has imposed no limitation upon the right of appeal in criminal cases, and the only condition imposed is that special leave to appeal must first be obtained. As to the objection that the prisoner has been discharged from custody, that is a circumstance which must of necessity exist in the majority of cases of this kind. I know of only one case in which the objection is reported to have been taken before the Privy Council, United States of America v. Gaynor[2] , an appeal from an order of a Judge in Canada, discharging from custody certain persons who had been brought up on a writ of habeas corpus under an extradition treaty with the United States. The first point taken by Mr. Asquith for the respondents was that the appeal was only of academic interest, since, the respondents having been in full possession of their liberty, no practical effect could be given to a judgment reversing that appealed from. I may remark that habeas corpus in criminal cases is regarded as a matter of criminal law. The Privy Council paid no attention to the argument, but entertained the appeal and reversed the decision appealed from. It appears also in the case of Reg. v. Mount and Morris[3] , that the Privy Council entertained an appeal from an order of the Supreme Court of Victoria discharging the prisoners who were under sentence for manslaughter, and allowed the appeal. In that case, as appears in the report, special leave to appeal was granted, though the prisoners were at large. There is, therefore, nothing in that objection.
No objection was taken by Mr. Blacket on general grounds that this was not a case involving questions which affect the due course of procedure in criminal cases generally.
I am therefore of opinion that the motion to rescind special leave fails, and should be dismissed.
Barton and O'Connor JJ.
concurred.
Appeal allowed. Judgment reversed. Conviction affirmed.
Solicitor, for appellant, The Crown Solicitor for New South Wales.
Solicitor, for respondent, S. M. Stephens.
H C of A
On appeal from the Supreme Court of New South Wales.
12 April 1906
Griffith C.J., Barton and O'Connor JJ.
Hamilton, for the Crown,
Blacket, for the respondent, moved to rescind the special leave.
Pollock, for the appellant.
Blacket in reply.
Griffith C.J.
This is an appeal by special leave from an order of the Supreme Court of New South Wales quashing a conviction, the result being that the prisoner has been discharged from custody under the sentence which she was serving. It is contended that under these circumstances an appeal does not lie, because, the prisoner being at present lawfully at large, there can be no means of again subjecting her to custody. As to that it is sufficient to say that the question may be determined when it arises. The question now is whether we are precluded by that difficulty from hearing the appeal. I for my part should not like to give my support to such a contention. In Reg. v. Bertrand[4] the Supreme Court of New South Wales had granted a venire de novo, on the application of the prisoner who had been convicted, and it was objected that an appeal from that decision ought not to be entertained by the Privy Council. On that point their Lordships of the Privy Council said:—"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, as 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; but the exercise of this prerogative is to be regulated by a consideration of circumstances and consequences; and interference by Her Majesty in Council in criminal cases is likely in so many instances to lead to mischief and inconvenience, that in them the Crown will be very slow to entertain an appeal by its officers on behalf of itself or by individuals. The instances of such appeals being entertained are therefore very rare." Now, that lays down the principle acted upon by the Privy Council. The appellate jurisdiction of this Court is given by the Constitution, and this case clearly falls within the words of sec. 73. That section gives the Court jurisdiction to entertain appeals from all judgments, decrees, orders, and sentences of the Supreme Courts of any States, with such exceptions and subject to such regulations as Parliament may prescribe. Parliament has imposed no limitation upon the right of appeal in criminal cases, and the only condition imposed is that special leave to appeal must first be obtained. As to the objection that the prisoner has been discharged from custody, that is a circumstance which must of necessity exist in the majority of cases of this kind. I know of only one case in which the objection is reported to have been taken before the Privy Council, United States of America v. Gaynor[5] , an appeal from an order of a Judge in Canada, discharging from custody certain persons who had been brought up on a writ of habeas corpus under an extradition treaty with the United States. The first point taken by Mr. Asquith for the respondents was that the appeal was only of academic interest, since, the respondents having been in full possession of their liberty, no practical effect could be given to a judgment reversing that appealed from. I may remark that habeas corpus in criminal cases is regarded as a matter of criminal law. The Privy Council paid no attention to the argument, but entertained the appeal and reversed the decision appealed from. It appears also in the case of Reg. v. Mount and Morris[6] , that the Privy Council entertained an appeal from an order of the Supreme Court of Victoria discharging the prisoners who were under sentence for manslaughter, and allowed the appeal. In that case, as appears in the report, special leave to appeal was granted, though the prisoners were at large. There is, therefore, nothing in that objection.
No objection was taken by Mr. Blacket on general grounds that this was not a case involving questions which affect the due course of procedure in criminal cases generally.
I am therefore of opinion that the motion to rescind special leave fails, and should be dismissed.
Barton and O'Connor JJ.
concurred.
1. L.R. 1 P.C., 520, at p. 529.
4. L.R. 1 P.C., 520, at p. 529.
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