R v Bridges [1986] HCA 78; (1986) 68 ALR 545; (1986) 61 ALJR 62 (3 December 1986)

HIGH COURT OF AUSTRALIA

THE QUEEN v. PAUL JAMES BRIDGES
F.C. 86/080

High Court of Australia
Gibbs C.J.(1), Wilson(1), Brennan(1), Deane(1) and Dawson(1) JJ.

CATCHWORDS

HEARING

Canberra
3:12:1986
Solicitor for the Applicant: Director of Public Prosecutions (Victoria)
Solicitors for the Respondent: Patrick W. Dwyer and Associates

DECISION

GIBBS C.J., WILSON, BRENNAN, DEANE AND DAWSON JJ.: This is an application for special leave to appeal from a decision of the Full Court of Victoria which answered two questions of law intended to be reserved for its consideration and determination under s.446 of the Crimes Act 1958 (Vict.), as amended. The questions asked were as follows:

"Do the said verdicts of the jury:-

(b) Guilty of Count 2 (possession);

in respect of those counts which were left to the
jury as alternative counts

(i) Prevent me from entering upon any enquiry
for the purpose of my forming a view as
to whether the offence in Count 2 was not
committed by the prisoner for any purpose
related to trafficking and require me to
sentence him on the basis of the
penalties prescribed by Section 73(1)(b)
of the Drugs, Poisons and Controlled
Substances Act 1981;

OR

(ii) Leave me free to enter upon such said
enquiry and if I am not satisfied on the
balance of probabilities that the offence
in Count 2 was not committed for any
purpose relating to trafficking, leave me
free to sentence him in accordance with
the provisions of Section 73(1)(c) of the
said Act?"

These questions were answered respectively, (i) "Yes", and (ii) "No". The answers were given by the Full Court on 12 March 1986. Subsequently, on 5 May 1986, the learned trial judge proceeded to impose sentence within the limits suggested by the answers of the Full Court. He imposed a sentence of nine months' imprisonment on the second count and suspended the operation of the sentence.

2. The jurisdiction conferred on this Court by s.73 of the Constitution is a jurisdiction to hear and determine appeals from certain "judgments, decrees, orders, and sentences". It is clearly established that an appeal does not lie from a mere answer to a question of law when the answer is not by itself decisive of the rights and obligations of the parties. Although the Full Court, under s.447 of the Crimes Act, is given power finally to determine the question or questions reserved under s.446, that does not mean that its answer will necessarily determine the rights or liabilities of the convicted person. However, it is unnecessary for us to decide whether the order of the Full Court answering the questions in the present case was an order within s.73 of the Constitution. The answers given to the questions in the stated case did not themselves determine the sentence to be imposed. The sentence which was imposed would not be affected by any variation on appeal of the answers to the questions in the stated case. In these circumstances, even if there be jurisdiction to entertain an appeal against the answers given, it would be quite inappropriate to grant special leave to entertain such an appeal.

3. This is regrettable, because the questions stated raised important matters affecting the administration of criminal justice in Victoria and because the questions as framed concealed rather than revealed the issues calling for determination. We were informed that argument in the Full Court proceeded on the assumption that an affirmative answer to the first part of the first question necessarily involved an affirmative answer to the second part of that question. That by no means follows, since under s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vict.), as amended, "the court", whatever that expression in the section may mean, must have the satisfaction mentioned in the paragraph before the paragraph applies. If the jury had formed no satisfaction, and the judge was precluded from inquiring into the question for the purpose of forming his own satisfaction, it would seem that the judge would be required to sentence under s.73(1)(c).

4. In view of the misunderstanding induced by the common assumption of counsel in the Full Court of Victoria, it may be that that court will, in an appropriate case, reconsider the construction of the section. However that may be, for the reasons given we should not grant special leave to appeal in this case when the result of our decision would not affect the sentence which has been imposed.

5. Special leave to appeal is therefore refused.

ORDER

Special leave to appeal refused.