Seaegg v R [1932] HCA 47; (1932) 48 CLR 251 (21 September 1932)

HIGH COURT OF AUSTRALIA

Seaegg Appellant; and The King Respondent.

H C of A

On appeal from the Court of Criminal Appeal of New South Wales.

21 September 1932

Rich, Dixon, Evatt and McTiernan JJ.

Curlewis, for the appellant.

Bavin K.C. (with him Nicholas), for the respondent.

Curlewis, in reply.

The Court delivered the following written judgment:—

Sept. 21

Rich, Dixon, Evatt and McTiernan JJ.

The question for determination upon this appeal is whether a prisoner convicted upon indictment of an offence against the laws of the Commonwealth before a Court of Quarter Sessions may appeal to the Supreme Court of New South Wales as a Court of Criminal Appeal according to the provisions contained in the Criminal Appeal Act 1912 of New South Wales. Sec. 5 of this statute enacts that a person convicted on indictment may appeal under the Act to the Court of Criminal Appeal against his conviction or against the sentence passed on his conviction. "Indictment" is defined to include any information presented or filed as provided by law for the prosecution of offenders. We do not think that the State enactment by these general words intends to refer to prosecutions on indictment preferred by the law officers of the Commonwealth for offences against the laws of the Commonwealth. Such prosecutions are governed by the special provisions contained in secs. 69-77 of the Judiciary Act 1903-1927, which deal not only with the manner in which they shall be instituted and the jurisdiction in which they shall be tried, but with the nature and extent of the appeal from a conviction and the power of the Court hearing that appeal. Apart from the general rule of construction requiring an interpretation which would restrain the general words so that they would not apply to Federal proceedings so regulated and would confine the State enactment to State proceedings, the State statute contains specific references to the Attorney-General of the State and to the Minister of Justice which place its meaning beyond doubt (see secs. 13, 16, 24 and 17 (2)) and show that the right of appeal it confers is limited to convictions upon indictment preferred according to State law.

The appellant was convicted upon an indictment in the name of the Attorney-General of the Commonwealth filed in the Court of Quarter Sessions pursuant to sec. 69 of the Judiciary Act 1903-1927. To avail himself of the provisions contained in the New South Wales Criminal Appeal Act, the appellant must, therefore, have recourse to some law of the Commonwealth which extends the operation of the State enactment and applies it to the conviction of offenders against the Federal law. Sec. 39 (2) of the Judiciary Act 1903-1927 is relied upon for this purpose. That sub-section provides that the several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise, be invested with Federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to certain exceptions, conditions and restrictions not presently material. It is said that this provision operates to confer a Federal jurisdiction on the State Courts in relation to Federal offences coextensive with their State jurisdiction in relation to State offences and, thus, that, as the Supreme Court received under the Criminal Appeal Act 1912 of New South Wales the jurisdiction of a Court of Criminal Appeal over State offences, it automatically obtained the same jurisdiction over Federal offences. Sec. 39 (2) does confer upon State Courts Federal jurisdiction coextensive with their State jurisdiction in respect of matters which are, or may be placed, within the original jurisdiction of this High Court: but something further appears to be required to make the State Criminal Appeal Act apply to Federal prosecutions. It has not, so far, been decided that sec. 39 (2) can operate to increase or vary the subject matter of the jurisdiction. In the present instance, the subject matter is confined to appeals against convictions upon indictment preferred under State law. It may well be that sec. 39 (2) cannot convert the jurisdiction over that subject matter into a Federal jurisdiction over a different subject matter, viz., appeals against convictions upon indictment preferred pursuant to sec. 69 of the Federal Judiciary Act 1903-1927. But in any case we think we ought not to construe sec. 39 (2) as operating to give by reference to State law another and different jurisdiction over the very same subject as the Judiciary Act 1903-1927 itself specially provides for, viz., appeal from conviction. That sec. 39 (2) was not intended to introduce such a jurisdiction by way of appeal is made clear by the presence in the Act of special provisions expressly conferring a right of appeal against such convictions, although a limited right of appeal. Secs. 72 to 77 of the Judiciary Act are headed "Appeal," and contain a code of procedure for an appeal by way of case stated upon a point of law raised at the trial. These special provisions confer a different and narrower right of appeal and different but perhaps wider remedies. We think that we ought not to construe the general words of sec. 39 (2) as capable of importing a new jurisdiction by way of appeal from conviction upon indictment which, in effect, would supersede these provisions. It is next said that sec. 68 (2) of the Judiciary Act 1903-1927 operates to give the appellant the right of appeal described by the Criminal Appeal Act 1912 of New South Wales against his conviction under Federal law. This sub-section provides that the several Courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State. Does the Supreme Court, as a Court of Criminal Appeal, exercise jurisdiction with respect to the trial and conviction on indictment of offenders? The words would not naturally be understood to refer to a jurisdiction to hear appeals from such convictions, and we think that the presence in the enactment of the special provisions contained in secs. 72-77 again operates to preclude such an interpretation. It follows that the Supreme Court was right in holding that the appellant could not appeal to it except under the provisions of sec. 72 of the Judiciary Act.

The appeal should be dismissed.

Appeal dismissed.

Solicitor for the appellant, J. H. Yeldham.

Solicitor for the respondent, W. H. Sharwood, Commonwealth Crown Solicitor.

[Note.—Since this decision was pronounced the Judiciary Act 1932 (No. 60 of 1932), assented to on 5th December 1932, amending sec. 68 of the Judiciary Act 1903-1927, has been passed.—Ed. C.L.R.]