MacAlister v R [1990] HCA 15; (1990) 169 CLR 324 (12 April 1990)

HIGH COURT OF AUSTRALIA

MacALISTER v. THE QUEEN [1990] HCA 15; (1990) 169 CLR 324
F.C. 90/016

Criminal Law (Vict.) - Statutes

High Court of Australia
Mason C.J.(1), Dawson(1), Toohey(1), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Criminal Law (Vict.) - Appeal to Supreme Court - Indictable offence - Conviction by County Court - Fine imposed payable by instalments - Default in payment - Sentence of imprisonment imposed - Right of appeal as if imprisonment a sentence imposed "on convicting that person of an offence" - No common right of appeal from sentences imposed by County Court - Whether right to apply for leave to appeal - Penalties and Sentences Act 1985 (Vict.), ss. 67, 70, 77 - Crimes Act 1958 (Vict.), s. 567.

Statutes - Construction - Literal construction unreasonable.

HEARING

Hobart, 1990, March 15,
Canberra, 1990, April 12. 12:4:1990
APPLICATION for special leave to appeal from the Supreme Court of Victoria.

DECISION

MASON C.J., DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. The question in this application for special leave to appeal is whether the Full Court of the Supreme Court of Victoria had jurisdiction to hear an application for leave to appeal against an order of the County Court of Victoria imprisoning a person who had defaulted in the payment of a monetary penalty.

2. The application is brought by Mr Max Milton Macalister. In October 1987 he was convicted in the County Court of handling stolen goods, an indictable offence under s.88 of the Crimes Act 1958 (Vict.). The learned County Court judge imposed a fine of $7,500 on the applicant. Pursuant to s.67 of the Penalties and Sentences Act 1985 (Vict.) ("the Act"), the judge ordered the fine to be paid by four instalments. The last instalment was payable on 23 February 1988. The applicant did not pay any of the instalments. On 9 September 1988, the Registrar of the County Court applied for an order that the applicant be imprisoned for a term on the ground that, for more than one month, he had failed to pay the monetary penalty imposed upon him in October 1987. The application by the Registrar was brought under s.70 of the Act which, so far as is material, provided:
"70. If for a period of more than one
month an offender defaults in the payment of
a monetary penalty or of any instalment under
an instalment order, the court may -
...
(b) order that the person in default be
imprisoned for a term fixed in
accordance with section 71(1)
unless the person in default
satisfies the court that he or she
did not have the capacity to pay
the monetary penalty or the
instalment ..."
3. On 26 September 1988, the County Court judge ordered that the applicant be imprisoned for six months. The applicant then applied to the Full Court of the Supreme Court for leave to appeal against the order of imprisonment. His application was based on s.77 of the Act and s.567 of the Crimes Act. So far as is material, they provided:

"77. If under s.70(b) a court orders
that a person in default be imprisoned, an
appeal lies from that order in the same
manner as if that order were a sentence
imposed by that court on convicting that
person of an offence ..."
"567. A person convicted on indictment
or for a relevant summary offence heard and
determined by the County Court pursuant to
section 359AA may appeal under this Part to
the Full Court -
...
(d) with the leave of the Full Court
against the sentence passed on his
conviction ..."

4. The expression "a relevant summary offence" means a summary offence to which the accused pleads guilty and to which he consents to the Supreme Court or County Court hearing when he is before one of those courts in respect of any indictable offence: s.359AA.

5. The Full Court, sitting as a Court of Criminal Appeal, held that neither s.77 nor its general jurisdiction in criminal matters under s.567 conferred any jurisdiction on it to hear the application for leave to appeal against the sentence of imprisonment.

6. After referring to s.567, the Full Court said:

"An appeal with leave lies, therefore,
only if the conviction is upon indictment or
for a relevant summary offence heard and
determined pursuant to s.359AA. An order
under s.70(b) of the Penalties and Sentences
Act is not within either of those categories.
It follows that to treat an order made by the
County Court under s.70(b) 'as if that order
were a sentence imposed by' the County Court
upon a conviction for an offence is not, by
itself, enough to confer a right of appeal -
or even a right to apply for leave to appeal
- to the Full Court. This conclusion amounts
to no more than to recognise that some
sentences imposed by the County Court on
conviction for an offence cannot be the
subject of an appeal to the Full Court; and
that, having regard to the limited effect of
s.77 of the Penalties and Sentences Act, an
order made under s.70(b) of that Act is one
of them."

7. With great respect to the members of the Full Court, however, the question whether s.77 gave a right to appeal to the Full Court from the County Court's order did not depend upon whether that order fell within either of the two categories described in s.567. Clearly the applicant, when ordered to be imprisoned under s.70(b), was not "convicted on indictment or for a relevant summary offence heard and determined by the County Court pursuant to section 359AA". But that is beside the point. In determining the nature of a person's right of appeal against a s.70(b) order, s.77 requires the order of the court to be treated as if it were a sentence imposed by that court on the "person in default" on convicting him "of an offence". It is necessary, therefore, to determine whether the Full Court would have had jurisdiction to hear an application for leave to appeal against a sentence imposed on the applicant by the County Court on convicting him "of an offence".

8. The difficulty of the case arises from the fact that sentences imposed by the County Court for some offences give rise to a right to apply for leave to appeal to the Full Court while sentences imposed by the County Court for other offences give no right to apply for leave to appeal or to appeal to the Full Court.

9. Subject to certain defined exceptions, the County Court has jurisdiction over all indictable offences: County Court Act 1958 (Vict.), s.36A. If the County Court imposes a sentence on convicting a person of an indictable offence, the Full Court has jurisdiction under s.567 of the Crimes Act to hear an application for leave to appeal against that sentence.

10. On the other hand, the County Court also has jurisdiction to hear appeals from Magistrates' Courts: see County Court Act, s.53A and Magistrates' Courts Act 1971, s.73. Section 75(1)(g) of the Magistrates' Courts Act gives the County Court power to "confirm reverse or vary the decision of the Magistrates' Court". The effect of this provision is that, at least in the case where the County Court hears an appeal from an order of a Magistrates' Court convicting a person and confirms the conviction and the order sentencing him to a term of imprisonment, the authority for the sentence of imprisonment is the order of the County Court: see Reg. v. Governor of Her Majesty's Gaol at Pentridge; Ex parte Cusmano (1966) VR 583. It is true that in Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155, Jacobs J. and Aickin J. expressed the view (at pp 160, 162 respectively) that, where a person proceeded to appeal only against a sentence, he was not convicted before the County Court. But, whether or not this opinion of Jacobs J. and Aickin J. is correct, when the County Court hears an appeal against both conviction and sentence and confirms the conviction, the conviction takes place and the sentence is imposed in the County Court: Ex parte Cusmano; Blacker v. Parnell (1978) 1 NSWLR 616. However, there is no general right to appeal or to apply for leave to appeal to the Full Court from a sentence confirmed and thereby imposed by the County Court upon an appeal from the Magistrates' Court. If the County Court "substitutes a sentence of imprisonment for any other sentence imposed by a Magistrates' Court", however, the person sentenced may apply to the Full Court for leave to appeal: Magistrates' Courts Act, s.77.

11. Moreover, s.52 of the Children's Court Act 1973 (Vict.) provides that a person against or in respect of whom a conviction or order is made by the Criminal Division or the Family Division of a Children's Court may appeal to the County Court pursuant to the Magistrates' Courts Act. Sub-section (6) of s.52 provides:

"Without affecting the generality of
section 75 of the Magistrates' Courts Act
1971, where an appeal is made from a decision
of a children's court whereby a child is
ordered to be detained in a youth training
centre in respect of two or more offences for
an aggregate period which is specified, the
County Court may, if it finds the child
guilty of the offences or any two or more of
them, order that the child be detained in a
youth training centre in respect of such
offences for a period not exceeding the
aggregate period or may sentence the child to
be detained in a youth training centre for a
separate period of detention in respect of
each such offence but so that the separate
periods do not in the aggregate exceed the
aggregate period ordered to be served by the
children's court."

12. The undoubted effect of this sub-section is that it is the County Court which makes the conviction and imposes the sentence on a child who has appealed from a conviction or order of a Children's Court in the circumstances specified. However, no appeal can be taken to the Full Court from a conviction made or sentence imposed in the County Court on an appeal from the Children's Court except in the special case provided for in s.77 of the Magistrates' Courts Act.

13. Section 54 of the County Court Act also gives the County Court the same jurisdiction, powers and authority in respect of any contempt of the County Court as the Supreme Court has in respect of any contempt of the Supreme Court. However, no appeal can be taken to the Full Court against a sentence of imprisonment imposed by the County Court in the exercise of its summary power to punish for criminal contempt.

14. Accordingly, the Full Court has jurisdiction to hear an application for leave to appeal against a sentence imposed by the County Court in respect of an offence only when the sentence was imposed after a conviction on indictment "a relevant summary offence" or in the special case of the County Court substituting a sentence of imprisonment for a sentence imposed by a Magistrates' Court. In respect of other sentences imposed or confirmed by the County Court for other offences, there is no right to appeal to the Full Court or to obtain leave to appeal from it. Indeed, there is no right of appeal (in the strict sense) against such other sentences, although, of course, they may be challenged in appropriate cases in other ways, for example, by certiorari.

15. If the words "convicting that person of an offence" in s.77 of the Act are read literally, there are difficulties in concluding that the making of an order under s.70(b) by the County Court gives a right of appeal to the Full Court or, for that matter, any right of appeal. The literal or grammatical meaning of s.77 assumes the existence of a common right of appeal in respect of all sentences imposed by the court which has made a s.70(b) order. Since there is no common right of appeal in respect of sentences imposed by the County Court, the hypothesis upon which the literal meaning of s.77 proceeds is not applicable to that court and there would be no right of appeal from a s.70(b) order made by the County Court.

16. Yet the purpose of s.77 seems clear enough. It is to give the same right of appeal to a person who has received a sentence of imprisonment for failing to pay a monetary penalty as he would have if he had received a sentence when originally convicted. This conclusion receives strong support from the words "convicting that person of an offence". It is not likely that, in using those words, the legislature intended to use any offence within the court's jurisdiction as the criterion of that person's right of appeal. It seems more likely that the legislature had in mind the offence which brought the defaulter before the court in the first place and intended to give him the same right of appeal against a s.70(b) sentence as he would have if the sentence had been imposed in respect of the original offence.

17. To give the words "an offence" in s.77 their literal meaning would defeat the purpose of the legislation and produce the unreasonable result that there was no right of appeal from the County Court against a s.70(b) order. Such a result was certainly not intended. On the other hand, if the words "an offence" are read as "his or her offence", as we think their context and the apparent intention of the section suggest they should be read, the provision has a sensible meaning which gives effect to its evident purpose. In Luke v. Inland Revenue Comrs (1963) AC 557, Lord Reid, when confronted with a similar problem, said (at p 577):

"The general principle is well settled. It
is only where the words are absolutely
incapable of a construction which will accord
with the apparent intention of the provision
and will avoid a wholly unreasonable result,
that the words of the enactment must
prevail."

18. In their context, the words "an offence" are not "absolutely incapable of" meaning "his or her offence", and they should be so read.

19. The applicant was originally convicted on indictment of the offence of handling stolen goods. Consequently, the s.70(b) order is to be treated as a sentence in respect of that offence. The Full Court, therefore, had jurisdiction under s.567 of the Crimes Act to hear the application for leave to appeal against the order made under s.70(b).

20. Special leave to appeal should be granted. The appeal should be allowed. The order of the Court of Criminal Appeal dismissing the application for leave to appeal against the sentence should be set aside. The matter should be remitted to the Court of Criminal Appeal to hear and determine the application for leave to appeal. As the Crown raised the question of jurisdiction before the Court of Criminal Appeal, it should pay the costs of the appeal to this Court and of the original hearing before the Court of Criminal Appeal.

ORDER

Application for special leave to appeal granted.

Appeal allowed with costs.

Set aside the order of the Court of Criminal Appeal dismissing the applicant's application for leave to appeal against sentence.

Remit the matter to the Court of Criminal Appeal for hearing and determination of the applicant's application for leave to appeal against sentence.

Order that the respondent pay the applicant's costs of the previous hearing before the Court of Criminal Appeal.