Williams v R (No 1) [1933] HCA 54; (1933) 50 CLR 536 (14 November 1933)

The prisoner, Harold Roy Williams, was charged on three counts upon indictment with making counterfeit coin, and with having in his possession without lawful authority or excuse coining instruments, contrary to the provisions of the Crimes Act 1914-1932 of the Commonwealth of Australia. He pleaded guilty, and was sentenced to imprisonment with hard labour for eighteen months on each count, concurrent. An appeal was then taken in the name of His Majesty's Attorney-General in and for the State of New South Wales to the Court of Criminal Appeal in New South Wales against the sentences so pronounced, on the ground that they were inadequate. The Court of Criminal Appeal substituted a sentence of imprisonment with hard labour for five years. Against this sentence of the Court of Criminal Appeal the prisoner now seeks special leave to appeal, on the ground that the appeal to the Court of Criminal Appeal was incompetent.

The Judiciary Act, sec. 69, provides that indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf. Both the Attorney-General and the Solicitor-General of New South Wales have been appointed by the Governor-General to prosecute by indictment in their names indictable offences against the laws of the Commonwealth. The appointments are by commission in the name of His Majesty, signed by the Governor-General, and, so far as material, are in the following form: "Now therefore we do appoint you to prosecute by indictment in your name indictable offences against the laws of the Commonwealth triable within our State of New South Wales, as fully and effectually to all intents and purposes as our Attorney-General of our Commonwealth of Australia could prosecute those offences: and we give and grant to you all such powers and authorities of our said Attorney-General in relation to those offences as are capable of being granted by this commission; including the power, when any person is under commitment upon a charge of any such offence, to decline to proceed further in the prosecution, and, if the person is in custody, by warrant under your hand to direct the discharge of the person from custody: Provided that nothing herein contained shall be construed to affect the power of our Attorney-General of our Commonwealth of Australia or of any other person appointed by us in that behalf to prosecute by indictment in his name any indictable offence against the laws of the Commonwealth triable within our said State: and we declare that this our commission shall continue in force so long as you hold the office of [Attorney-General or] Solicitor-General for our said State unless sooner revoked by our Governor-General in and over our Commonwealth of Australia."

The indictment upon which the prisoner was charged was in the following form: "Cecil Edward Weigall His Majesty's Solicitor-General for the State of New South Wales who by virtue of an appointment made to him for such purpose prosecutes for His Majesty in this behalf being present in the Court of Quarter Sessions at Sydney in the State aforesaid ... charges," &c. Some suggestion was made that such an indictment was bad because it did not allege or disclose that the indictment was in the name of a person appointed by the Governor-General in that behalf, and might refer to an appointment under sec. 572 of the Crimes Act 1900 of New South Wales. But the commission to the Attorney-General and the Solicitor-General enables them to prosecute in their names. Again, where acts done are of an official nature or require the concurrence of official persons, the presumption is that they are rightly done unless the contrary is shown. Further, after a plea of guilty, and sentence, such an objection could not well be sustained. Nor could it be allowed, in the face of the provisions of the Judiciary Act, sec. 68, coupled with the Crimes Act 1900 of New South Wales, secs. 360 and 362.

The learned counsel for the prisoner were on firmer ground in contending that an appeal did not lie on the part of the Crown against a sentence for an offence against a Federal law, or, at all events, that such an appeal could not be prosecuted in the name of the Attorney-General of the State. The argument depends upon the effect of sec. 5D of the Criminal Appeal Act 1912 of New South Wales, and the Judiciary Act 1903-1932. By sec. 5D of the Criminal Appeal Act, the Attorney-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions, and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper. But Seaegg's Case[1] in this Court makes it clear that this section would not authorize an appeal by the Attorney-General of the State against a sentence pronounced in respect of an offence against the laws of the Commonwealth. The Judiciary Act, sec. 68, has been amended since that decision (see Act 1932, No. 60), and it now provides:—"(1) The laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for—(a) their summary conviction; (b) their examination and commitment for trial on indictment; (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State, or whose trial for offences committed elsewhere may lawfully be held therein. (2) The several Courts of a State exercising jurisdiction with respect to—(a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere." A "like jurisdiction" is, I apprehend, a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State. The section grants in respect of Federal offences a similar right of appeal to that existing in respect of offences against State law. In some of the States, as the learned counsel for the prisoner pointed out, no such right of appeal is given, but in New South Wales, as we have seen, the Attorney-General of the State may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions. Having regard, however, to the reasoning in Seaegg's Case[2], this section, even when coupled with the Judiciary Act, sec. 68, gives the Attorney-General of the State no right of appeal in respect of Federal offences. Nor, in my opinion, does his commission to prosecute by indictment in his name indictable offences against the laws of the Commonwealth triable in New South Wales confer upon him any authority or power to institute or prosecute appeals from judgments or sentences pronounced upon indictments in respect of Federal offences.

By whom, then, can the right of appeal granted in respect of sentences pronounced regarding offences against the Federal law be exercised? In my opinion, that right is exercisable by the Crown, and the proper officer to assert it is the legal adviser and representative of the Crown in the Commonwealth; in other words, the Attorney-General of the Commonwealth. But in the present case, the appeal was instituted in the name of the Honorable Henry Edward Manning, His Majesty's Attorney-General in and for the State of New South Wales. In my opinion, such an appeal was incompetent, for the Attorney-General of the State had no authority to exercise the Crown's right to appeal against sentences pronounced in respect of offences against Federal law. But we were assured at the Bar—and it was stated that the fact could be proved if need be—that the Attorney-General of the Commonwealth had authorized and requested the Attorney-General of the State to institute and prosecute the appeal. The objection taken on behalf of the prisoner goes then to the form of procedure, and has little real substance in it.

I have had some doubt whether, in these circumstances, this Court should interfere. The procedure, however, adopted in this case tends to divert the due and orderly administration of the law into an irregular course, which might be drawn into an evil precedent in future. Special leave to appeal should therefore be granted, the appeal allowed, and the order of the Court of Criminal Appeal discharged. Such a determination would leave the original sentence standing, subject, of course, to any appeal that the Attorney-General of the Commonwealth might yet institute on the ground of the inadequacy of that sentence.

The applicant was prosecuted on indictment for an offence against the laws of the Commonwealth. He was tried before a Court of Quarter Sessions and was convicted and sentenced to imprisonment. The Attorney-General of the State of New South Wales thereupon appealed to the Supreme Court, as the Court of Criminal Appeal, against the sentence on the ground that it was inadequate, and upon that appeal the sentence was increased. Special leave to appeal is now sought against the order increasing the sentence.

Unless it has been given by the joint operation of sec. 68 (2) of the Commonwealth Judiciary Act 1903-1932 and sec. 5D of the New South Wales Criminal Appeal Act 1912, the Supreme Court has no jurisdiction upon an appeal on the part of the prosecution to increase a sentence pronounced upon a conviction for an indictable offence against the laws of the Commonwealth. Sec. 68 (2) of the Judiciary Act 1903-1932 provides that the several Courts of a State exercising jurisdiction with respect to the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceedings connected therewith, 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. By sec. 5D of the Criminal Appeal Act of New South Wales, the Attorney-General of the State is authorized to appeal against any sentence to the Court of Criminal Appeal, which may impose such sentence as it thinks proper. Assuming, without deciding, that the combined effect of these provisions is to allow an appeal by the prosecution against the sentence imposed on a prisoner convicted of an indictable offence against Federal law, it is, in my opinion, clear that the appeal is not given by the legislation to the Attorney-General of the State. By sec. 69 of the Judiciary Act 1903-1932 indictable offences against the laws of the Commonwealth must be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General may appoint in that behalf. Sec. 71 enables the Attorney-General of the Commonwealth, or a person so appointed in that behalf, to decline to proceed in such a prosecution. These provisions are inconsistent with the continuance of any authority which otherwise might exist in the State law officers as such to commence or maintain in State jurisdiction prosecutions for offences against Federal law. The Attorney-General of the State can, therefore, have no interest in the judgment pronounced imposing the sentence appealed against. It is true that sub-sec. (1) (d) of sec. 68 of the Judiciary Act 1903-1932 applies the laws of the State with respect to the procedure for the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceeding connected therewith, of offenders against the laws of the States. But the qualification contained in the words occurring in the sub-section, "so far as they are applicable," excludes the application of so much of the State law as gives the appeal to the State Attorney-General. For these reasons I think that the appeal instituted in the Supreme Court as the Court of Criminal Appeal by the State Attorney-General as such was incompetent.

It appears, however, that the present holder of the office of Attorney-General for New South Wales has been appointed under secs. 69 and 71 of the Judiciary Act 1903-1932 by the Governor-General by a commission in the King's name. It is said that it can be shown that the appeal was in fact instituted with the approval of the proper officers of the Commonwealth, and we are asked to allow the notice of appeal to be amended or to refuse this application on the ground that the objection could have been cured by amendment. To amend the proceedings by substituting the individual name of the present State Attorney-General and describing him as a person appointed by a commission under sec. 69 of the Judiciary Act would only raise a new question. For it is not clear that his appointment would enable him to institute the appeal. The substitution by the Supreme Court of the Attorney-General of the Commonwealth as the appellant would have been proper only if that Court had been satisfied that the law officers of the Commonwealth had intended to undertake responsibility for the proceeding. In fact, when the objection was taken in the Supreme Court, nothing but the commission seems to have been laid before the Court. Moreover, inspection of the indictment shows that objections not altogether unarguable might be made to it, founded upon similar considerations, and the applicant might well have sought an opportunity of raising these as a condition of such an amendment, if it had been applied for in the Supreme Court. But in fact no application was made in that Court on behalf of the Attorney-General of the Commonwealth to substitute him as the appellant. As it stood, the appeal was, in my opinion, incompetent.

The matter has more than a formal significance because responsibility for proceedings on behalf of the Crown in right of the Commonwealth must be taken by the officers to whom by law it belongs and no proceedings should be entertained which appear upon their face to be taken upon some other responsibility. I think we should not allow the proceedings to stand.

The question does not appear to me to arise at present whether sec. 68 (2) of the Judiciary Act 1903-1932 operates upon sec. 5D of the New South Wales Criminal Appeal Act in such a way as to enable the Attorney-General of the Commonwealth to appeal to the Court of Criminal Appeal against a sentence imposed upon a prisoner convicted in New South Wales on indictment of an offence against the laws of the Commonwealth; but I do not wish to be understood as assenting to the view that the legislation does not have this operation.

In my opinion special leave to appeal should be granted. The appeal should be allowed, and the order of the Supreme Court increasing the sentence should be discharged.

In the case of Seaegg v. The King[3], this Court held that nowhere in the Judiciary Act 1903-1927 was there conferred upon the Supreme Court of New South Wales jurisdiction to hear an appeal, under the Criminal Appeal Act 1912 N.S.W., by a person convicted before a New South Wales Court upon an indictment charging an offence against the laws of the Commonwealth. It was further determined that the only right of appeal possessed by a person so convicted was as provided in sec. 72 of the Judiciary Act 1903-1927.

In that case, the appellant sought to rely upon sec. 68 (2) of the Judiciary Act, which provides that the several Courts of a State exercising jurisdiction with respect to "the trial and conviction on indictment" of persons charged with offences against the laws of that State should "have the like jurisdiction" with respect to persons charged with offences against the laws of the Commonwealth committed within the State. But it was decided that the words of sec. 68 (2) would not naturally be understood to refer to a jurisdiction to hear appeals from convictions on indictment.

The decision in Seaegg v. The King[4] was pronounced on September 21, 1932, and on December 5th, 1932, Act No. 60 of 1932 was passed.

This Act amends sec. 68 (1) by making the State laws governing "the procedure" for the hearing and determination of appeals arising out of the trial on indictment or the conviction thereon or the proceedings connected therewith apply to persons charged with offences against the laws of the Commonwealth committed within that State.

Sec. 68 (2) is amended so as to confer upon that Court of a State which exercises jurisdiction with respect to the hearing and determination of appeals arising out of any trial on indictment or conviction thereon or the proceedings connected therewith the "like jurisdiction" with respect to persons charged with offences against the laws of the Commonwealth committed within that State.

The present case concerns a person, the applicant, who was sentenced by a Chairman of Quarter Sessions in respect of three offences specified in the Commonwealth Crimes Act 1926. Having pleaded guilty, the applicant was duly sentenced. The Attorney-General of the State of New South Wales then appealed to the Supreme Court of that State sitting as a Court of Criminal Appeal under the Criminal Appeal Act 1912. The Court assumed jurisdiction, and increased the sentence from eighteen months to five years.

Sec. 5D of the Criminal Appeal Act enables the Attorney-General of New South Wales to appeal against any sentence pronounced by the Supreme Court or any Court of Quarter Sessions. And it is contended for the respondent that the amendment to the Judiciary Act by Act No. 60 of 1932 had the effect, not only of enabling the Crown to appeal against the sentence imposed by the Court of Quarter Sessions in this case, but of enabling the Attorney-General of New South Wales himself to exercise such right of appeal as under sec. 5D of the Criminal Appeal Act.

It is clear that the amendment to sec. 68 of the Judiciary Act was passed so as to get over the difficulties pointed out in Seaegg's Case[5], and thereby enable a person convicted on indictment within New South Wales in respect of Commonwealth offences to appeal to the Court of Criminal Appeal as though he had been convicted within New South Wales on indictment in respect to offences other than those against Commonwealth law.

To this end, Federal jurisdiction is invested in the Court of Criminal Appeal by the amendment to sec. 68 (2), and the procedure relating to appeals to the Court of Criminal Appeal is made applicable by the amendment to sec. 68 (1). But it does not follow that it was intended by Parliament to give the Crown a right of appeal against the sentence imposed. Such an intention would usually be expressed very clearly, and an appeal against a sentence is, we understand, not accorded to the Crown by any State law excepting that of the State of New South Wales, although in every State of the Commonwealth a person convicted on indictment is given a right of appeal to the local Court of Criminal Appeal.

The question whether the Crown is, by the Act No. 60 of 1932, given an appeal against a sentence, also involves a determination whether the appeal against a sentence given to the Attorney-General under sec. 5D of the Criminal Appeal Act 1912 of New South Wales is accurately described as an "appeal arising out of any such trial or conviction or out of any proceedings connected therewith." And it may well be contended that a mere right to question the adequacy of a sentence, though no objection is being raised to anything done in the course of the trial or as to the propriety of the conviction or as to the validity of any other proceedings related thereto, hardly comes within the words or intendment of the amending Judiciary Act.

We desire, however, to leave this question open for consideration should the matter arise again in the future, because, even if the Crown is, by No. 60 of 1932, given a right of appeal against the adequacy of a sentence, the question arises whether the person to exercise it is the Attorney-General of the Commonwealth or the Attorney-General of the State of New South Wales.

In our opinion, the Act No. 60 of 1932 gives no countenance to the theory that the grant of analogous jurisdiction to State Courts exercising Federal jurisdiction involves a general transfer by the proper officer of the Commonwealth to the corresponding officer of the State of any of the powers and duties in relation to the prosecution of offences which Commonwealth law has conferred upon the former. This view is reinforced by sec. 69 (1) of the Judiciary Act, which provides that indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth, or of such other person as the Attorney-General appoints in that behalf.

Assuming, therefore, that the Crown in right of the Commonwealth is entitled, by the combined effect of No. 60 of 1932, and sec. 5D of the Criminal Appeal Act of New South Wales, to appeal against the adequacy of a sentence, the person who alone can exercise this right of appeal is the Attorney-General of the Commonwealth, and not the Attorney-General of the State of New South Wales.

This view is fatal to the appeal brought to the Court of Criminal Appeal in the present case, because it was so brought by the Attorney-General of New South Wales.

It was suggested, somewhat faintly, that sec. 69 of the Judiciary Act, under which a commission issued appointing the present Attorney-General of New South Wales to prosecute by indictment in his name indictable offences committed in New South Wales against Commonwealth laws, might warrant his bringing the present appeal to the Supreme Court. This is not so, because neither sec. 69 nor the commission of appointment itself authorizes the taking of proceedings by way of appeal after an offence has been prosecuted to conviction and sentence.

Special leave to appeal should be granted, the appeal allowed, the order of the Court of Criminal Appeal discharged, and the sentence imposed by the Court of Quarter Sessions restored.

Application for special leave to appeal granted. Appeal allowed. Order of the Court of Criminal Appeal discharged.

[1] [1932] HCA 47; (1932) 48 C.L.R. 251.

[2] [1932] HCA 47; (1932) 48 C.L.R. 251.

[3] [1932] HCA 47; (1932) 48 C.L.R. 251.

[4] [1932] HCA 47; (1932) 48 C.L.R. 251.

[5] [1932] HCA 47; (1932) 48 C.L.R. 251.

High Court of Australia

Williams v R (No 1) [1933] HCA 54; (1933) 50 CLR 536 (14 November 1933)

HIGH COURT OF AUSTRALIA