Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107 (28 April 2004)

Last Updated: 3 May 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107

FILE NUMBER(S): IRC 316

HEARING DATE(S): 28/07/2003

DECISION DATE: 28/04/2004

PARTIES:

APPELLANT

Rodney Morrison

RESPONDENT

Joy Manufacturing Co Pty Ltd

JUDGMENT OF: Wright J President Walton J Vice-President Boland J

LEGAL REPRESENTATIVES

APPELLANT

Mr P M Hall QC with Mr J A Kernick of counsel

Solicitor: Ms F Inverarity

PricewaterhouseCoopers Legal

RESPONDENT

Mr S J Rushton SC with Mr J D Smith of counsel

Solicitor: Mr T Webster

Acuiti Legal

CASES CITED: Adler v District Court (NSW) (1990) 19 NSWLR 317

Austeck Pty Limited v Charalambos Atsalos [2003] NSWIRComm 290

Bienstein v Bienstein (2003) 195 ALR 225

Coal & Allied Operations Pty Limited v AIRC (2000) 203 CLR 194

Coldham; Ex parte Brideson Re (No.2) (1990) 170 CLR 267

Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16

Cooke v Purcell (1988) 14 NSWLR 51

EPA v Land and Environment Court of NSW [2004] NSWCA 50

Fraser v The Queen (No 2) (1985) 1 NSWLR 680

John L Pty Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508

Luck Re: (2003) 203 ALR 1

McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464

Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212; 124 IR 79

Murphy v Farmer (1987) 87 FLR 149 72 ALR 691 (NSWCA)

Murphy v Farmer (1988) 165 CLR 19

R v Cheng (1999) 48 NSWLR 616

R v Hull (1989) 16 NSWLR 385

R v King [2003] NSWCCA 399

R v Powch (1988) 14 NSWLR 136

R v Vincent [2002] NSWCCA 110

Registrar of Titles (WA) v Franzon (1975) 50 ALJR 4

Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156

Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366

Taylor v Environment Protection Authority (2000) 50 NSWLR 48

WorkCover (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332

WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128

LEGISLATION CITED: Consumer Protection Act 1969 (repealed)

Costs in Criminal Cases Act 1967 s2(a)

Courts Legislation Further Amendment Act 1998

Crimes Act 1900 s4

Crimes (Local Courts Appeal and Review) Act 2001

Criminal Appeal (Amendment) Act 1986

Criminal Appeal Act 1912 s2 s5 s5AA s5AB s5AC s5AE s5C s5F s10

Criminal Procedure Act 1986

Industrial Relations Act 1996 s 168 s 196

Justices Act 1902 (repealed)

Justices Legislation Repeal and Amendment Act 2001

Land and Environment Court Act 1979 s21

Land and Environment Court Rules 1980 Part 6

Occupational Health and Safety Act 1983 s 18(2) (a)

Pesticides Act 1978 s59

Protection of the Environment Operations Act 1997 s214

Supreme Court (Summary Jurisdiction) Act 1967 s4(1)

Supreme Court Act 1970 s17(1) s76 Third Schedule Fourth Schedule

Supreme Court Rules 1970 Part 75

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice-President

BOLAND J

Wednesday 28 April 2004

Matter No IRC 316 of 2003

RODNEY MORRISON v JOY MANUFACTURING COMPANY PTY LTD

Appeal from a decision of His Honour Mr Justice Marks given in Matter No. IRC 5413 of 2001 on 27 December 2002

JUDGMENT OF THE COURT

[2004] NSWIRComm 107

1 This matter concerns an appeal against a decision of Marks J given on 27 December 2002, in which his Honour permanently stayed prosecution proceedings brought by Rodney Morrison of the Department of Mineral Resources against Joy Manufacturing Company Pty Ltd: Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366. The proceedings were permanently stayed on the basis that they constituted an abuse of process. Marks J found that the firm of solicitors acting for the prosecutor had acted for the defendant's insurer in other proceedings (relating to product liability and workers' compensation), had gained confidential information in those proceedings that was relevant to the current prosecution and such confidential information was both imputed to the prosecutor and had actually been imparted to the prosecutor.

2 The appellant contended that the order was an interlocutory order and sought to appeal under the combined operation of section 196 of the Industrial Relations Act 1996 and section 5F of the Criminal Appeal Act 1912 or, alternatively, the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act.

3 The appeal was set down for hearing before the Full Bench. However, shortly prior to the hearing the respondent filed a notice of motion seeking an order that the appeal be dismissed as incompetent. We heard the parties on the notice of motion and stood the substantive appeal over as part heard. This decision deals with the issues raised by the notice of motion.

4 The respondent submitted that the appeal should be struck out as incompetent as the Full Bench did not have jurisdiction to determine the appeal. The respondent contended that s 5F of the Criminal Appeal Act did not apply to appeals under s 196 of the Industrial Relations Act as such appeals under the latter provision were limited to those in respect of criminal proceedings taken before the Court in its summary jurisdiction, whereas s 5F only gives a right of appeal to the prosecutor against an interlocutory judgment or order in respect of proceedings for the prosecution of offenders on indictment; there was a clear distinction to be drawn between summary proceedings and proceedings on indictment.

5 In relation to s 5C of the Criminal Appeal Act the respondent submitted there had been no order "quashing" any application or charge specified in the application under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 ("Summary Jurisdiction Act"), therefore no right of appeal existed under s 5C.

6 The appellant submitted that the challenge to the competency of the appeal was untenable and that s 5F of the Criminal Appeal Act had on at least three occasions since July 2000 been found by a Full Bench of this Court to be applicable in relation to the summary jurisdiction of the Commission in Court Session: Concrete Constructions Group Limited v WorkCover Authority of NSW (Inspector Dubois) (2000) 99 IR 16; Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156; WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128. The Full Bench was in each of the cases differently constituted and in each case the decision was of the Court, without dissent.

7 Further, it was submitted by Mr P M Hall QC for the appellant, the Court of Criminal Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 held, again unanimously, in the context of the use by the Land and Environment Court of procedures adapted from the Summary Jurisdiction Act, that a summons issued under those procedures constituted an “information”. The relevance of the decision to the corresponding procedure in the Industrial Relations Commission was noted by the Full Bench in WorkCover (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332 at 349.

8 The appellant submitted that the construction applied by the Full Bench decisions cited was reinforced by the context in which s 5F operates through the force of s 196 of the Industrial Relations Act and the fact that the entire criminal jurisdiction of the Court is that of the Supreme Court in its summary jurisdiction as adapted by s 168 of the Industrial Relations Act and the Commission’s Rules. Section 196, it was contended, is clearly intended to adapt the Criminal Appeal Act provisions generally to the jurisdiction of the Court. This includes the adaptation of the roles of the Attorney General and the Director of Public Prosecutions to the Minister and prosecutor respectively to the procedures of the Court. On the submissions of the respondent there would be no, or no effective, role for the Minister or a prosecutor (and no significant work for the adapting provision in relation to them) notwithstanding that this aspect is clearly intended to be central to the adaptation of the scheme of the Criminal Appeal Act to the jurisdiction of the Court.

9 This brief statement of the parties' respective positions essentially marks out the ambit of the issue before us. Of course, it does not do justice to the exhaustive analyses of the relevant legislation and applicable case law provided by each of the parties. Because of the complexity of the issues that have been raised it is necessary to address the submissions of the parties in greater detail.

Relevant legislation

10 Before doing so, however, it is convenient to set out the terms of the legislation relevant to the issues before us. This principally involves the Industrial Relations Act, the Summary Jurisdiction Act and the Criminal Appeal Act because it is the combined operation of these three statutes that, in respect of the issues we have to decide, gives the Commission in Court Session the power to deal summarily with criminal offences, including appeals and references in respect of criminal proceedings. It may be noted, however, that whilst the Summary Jurisdiction Act was repealed with effect from 7 July 2003 and the relevant legislation is now Part 5 of Chapter 4 of the Criminal Procedure Act 1986, it is the Summary Jurisdiction Act that is relevant in these proceedings. It may further be noted that the repealing legislation, namely, the Justices Legislation Repeal and Amendment Act 2001 resulted in substantial amendment also to the Criminal Appeal Act, including amendment to s 5F. However, none of the amendments appear to be relevant to these proceedings. The provisions of the statutes cited below are the provisions that were in force prior to 7 July 2003.

11 Of course, the Occupational Health and Safety Act 1983 is also relevant but only to the extent that the proceedings giving rise to the appeal and the respondent's notice of motion concerned a criminal prosecution under s 18(2)(a) of that Act and that the authority to prosecute arises under that statute.

12 The procedure in summary proceedings before the Commission in Court Session is governed by s 168 of the Industrial Relations Act. The terms of that section, as it applied at the relevant time, are as follows:

168 Criminal procedure

(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.

(2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967:

(a) to the Supreme Court (except in section 15) - is taken to be a reference to the Commission in Court Session, and

(b) to rules - is taken to be a reference to rules of the Commission, and

(c) to the Prothonotary - is taken to be a reference to the Industrial Registrar.

(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.

13 The relevant provisions in the Summary Jurisdiction Act are:

Orders for appearance or apprehension of defendants

4(1) Upon an application being made by any person (in this Act referred to as the "prosecutor") in accordance with the rules, a Judge shall make an order:

(a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or

(b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order.

(2) An order under subsection (1) may be made ex parte.

(3) An order in respect of an offence alleged to have been committed by a person may be made under paragraph (b) of subsection (1) whether or not an order in respect of that offence has been made under paragraph (a) of that subsection.

(4) An order under paragraph (b) of subsection (1):

(a) shall be addressed to all members of the police force;

(b) may be addressed to any other person specified in the order; and

(c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court.

14 Section 196 of the Industrial Relations Act lays down the procedure on appeal to the Full Bench in criminal proceedings in the following terms:

196 Appeals from and references by members of Commission in criminal proceedings

(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:

(a) to the Court of Criminal Appeal—is taken to be a reference to a Full Bench of the Commission in Court Session, and

(b) to the Supreme Court—is taken to be a reference to the Commission in Court Session, and

(c) to rules—is taken to be a reference to rules of the Commission, and

(d) to the Attorney General—is taken to include a reference to the Minister, and

(e) to the Director of Public Prosecutions—is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and

(f) to the registrar—is taken to be a reference to the Industrial Registrar.

(4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.

15 Because the parties rely on various aspects of the statute as to the construction of the Criminal Appeal Act it is necessary to refer to a number of the provisions in addition to ss 5C and 5F. Firstly, the term "indictment" is defined in s 2 as follows:

1) In this Act, unless the context or subject-matter otherwise requires or indicates:

...

Indictment includes any information presented or filed as provided by law for the prosecution of offenders.

...

16 The other relevant sections of the Criminal Appeal Act are in Part 3 of the Act:

5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction

(1) A person:

(a) convicted of an offence, or

(b) against whom an order to pay any costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

(2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence.

(3), (3A) (Repealed)

(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

(5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1).

(6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody.

5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction

Section 5AA applies to and in respect of a person:

(a) convicted of an offence, or

(b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

(c) in whose favour an order for costs is made,

by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.

5AC Appeal in criminal cases dealt with by Court of Coal Mines Regulation in its summary jurisdiction

Section 5AA applies to and in respect of a person:

(a) convicted of an offence, or

(b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or

(c) in whose favour an order for costs is made,

by a Court of Coal Mines Regulation in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to a Court of Coal Mines Regulation.

...

5AE Point of law stated during summary proceedings

(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

...

5C Appeal against quashing of an indictment

Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as applied by section 152 (3) of the Coal Mines Regulation Act 1982, or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary.

...

5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

(b) proceedings under section 51A of the Justices Act 1902, and

(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal, or

(b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal may:

(a) affirm or vacate the judgment or order appealed against, or

(b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.

(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Justices Act 1902.

Submissions of the respondent

17 The respondent's starting point was that the jurisdiction of this Court is limited to that conferred expressly or implied by statute: see Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212; 124 IR 79 at [202]. As an appeal is a creature of statute, the existence of and nature of any appeal mechanism must depend on the terms of the statute establishing the appeal mechanism: see Coal & Allied Operations Pty Limited v AIRC (2000) 203 CLR 194, Re Coldham; Ex parte Brideson (No.2) (1990) 170 CLR 267 at 273-274. Moreover, "clear statutory language" is required before a Court will consider Crown appeals against an order granting a permanent stay, given the principle of "double jeopardy". Senior counsel for the respondent contended that although, strictly speaking, this principle applies to proceedings where there has been a trial on the merits, principles akin to "double jeopardy" arise in criminal proceedings where the Crown seeks to appeal from a decision to impose a stay: Cooke v Purcell (1988) 14 NSWLR 51.

18 As Mr S J Rushton SC, for the respondent, pointed out, these proceedings do not strictly give rise to the principle of double jeopardy because there has been no acquittal from a trial on the merits and, indeed, that is the case. There are decisions where there has been a ruling that there was no prima facie case to go to the jury (R v Cheng (1999) 48 NSWLR 616) and where an order has been made discharging the accused after upholding a plea of autrefois acquit (R v Vincent [2002] NSWCCA 110). Such decisions have been held not to be appealable decisions under s 5F because the decisions or orders amounted to an acquittal or because they were, in substance, final orders. That is not to say, however, that an appeal against a decision granting a stay is not available under s 5F.

19 After all, the respondent accepted that the purpose of the enactment of s 5F was to enable the Court of Criminal Appeal to hear appeals against applications for stay, which in itself means that the primary purpose of the enactment of the section was to deal with precisely the kind of issue under consideration. The question in these proceedings is whether the right of appeal under s 5F extends to summary trials before the Supreme Court or before this Court, in the latter case by virtue of s 196 of the Industrial Relations Act.

20 The respondent submitted that s 196(2) of the Industrial Relations Act provided a limited right of appeal - that is, such an appeal applied only in the same way as it would in respect of criminal proceedings taken before a judge of the Supreme Court in its summary jurisdiction; there is no right of appeal to the Full Bench of the Commission in Court Session unless there would have been a corresponding right of appeal to the Court of Criminal Appeal from a Supreme Court judge exercising its summary jurisdiction. As there was no right of appeal under s 5F to the Court of Criminal Appeal from a Supreme Court judge exercising summary jurisdiction, it was submitted there was no right of appeal from Marks J to this Full Bench under that provision. Whilst it was conceded by the respondent that ss 5AA, 5AE and 5C would be applicable to proceedings before the Commission in Court Session, the same could not be said for s 5F. Mr Rushton embarked on an examination of the history of the Supreme Court's criminal jurisdiction to make good his point.

21 Mr Rushton submitted that the legislature in New South Wales has always maintained a distinction between the Supreme Court's "regular" criminal jurisdiction and the Court's summary jurisdiction and this is evidenced in the Supreme Court Act 1970, Supreme Court Rules 1970 and the Criminal Appeal Act. Mr Rushton's submissions regarding the distinction that exists between the Supreme Court's regular criminal jurisdiction and the Court's summary jurisdiction were as follows:

(a) Section 17(1) of the Supreme Court Act provides that:

(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

(The reference to "the Court" in s 17 is a reference to the Court of Appeal).

(b) The Third Schedule of the Supreme Court Act concerns criminal proceedings and provides:

(a) Proceedings in the Court for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,

(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court,

(c) The Act's Fourth Schedule refers to the provisions of the Courts Legislation Further Amendment Act 1998, which abolished certain divisions of the Supreme Court. Up to 1998 there was a Criminal Division but by virtue of the Courts Legislation Further Amendment Act this Division was abolished and its proceedings were assigned to the Common Law Division. That is, up to 1998 the Criminal Division dealt with proceedings for the prosecution of offenders on indictment, but after that date they were assigned to the Common Law Division.

(d) Part 75 of the Supreme Court Rules concerns criminal proceedings. Division 1 - General, Rule 1 provides:

Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act.

(e) Part 75 r 2(1) provides:

1) The following rules apply, so far as applicable, to proceedings which are specified in the Third Schedule (except clause (d) of the Schedule, which clause relates to proceedings in the Court under the Criminal Appeal Act 1912) to the Act and to proceedings to which Division 2 applies: [the rules are then set out].

(f) Part 75 Division 2 of the Rules concerns the Court's summary jurisdiction. Rule 4 provides:

This Division applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (in this Division called the subject Act).

(g) Rule 5A (which was inserted in 1984) provides:

Proceedings to which this Division applies are assigned to the Common Law Division.

22 Thus, Mr Rushton submitted, prior to 1998 regular criminal proceedings, that is, proceedings on indictment, were assigned to the Criminal Division of the Supreme Court. In 1998 these were re-assigned to the Common Law Division. Prior to 1998, however, summary proceedings had already been assigned to the Common Law Division. Although both regular criminal proceedings and summary proceedings are now assigned to the Common Law Division, the distinction between the two jurisdictions is maintained in Part 75 of the Rules of the Court.

23 The respondent contended that the distinction between the Supreme Court's regular criminal jurisdiction and its summary jurisdiction was maintained when various amendments were made to the Criminal Appeal Act to accommodate appeals from courts of summary jurisdiction and from the regular criminal jurisdiction of the Supreme Court. In this respect Mr Rushton referred to the following sections of the Criminal Appeal Act:

(a) Section 5 - which refers to the right of a person convicted on indictment to appeal;

(b) Section 5AA - which refers to the right of a person convicted by the Supreme Court in its summary jurisdiction to appeal;

(c) Section 5AB - which refers to the right of a person convicted by the Land and Environment Court in its summary jurisdiction to appeal;

(d) Section 5AC - which refers to the right of a person convicted by the Court of Coal Mines Regulation in its summary jurisdiction to appeal;

(e) Section 5AE - which refers to a point of law stated in the summary jurisdiction in the Supreme Court, Land and Environment Court and Court of Coal Mines Regulation;

(f) Section 5A - where a judge before whom any person is tried and convicted on indictment may submit any question of law arising at or in reference to such trial or conviction to the Court of Criminal Appeal for determination;

(g) Section 5C - where the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an order by the Supreme Court or District Court quashing any information or indictment or the Supreme Court, Land and Environment Court or Court of Coal Mines Regulation in their summary jurisdiction quashing any application;

(h) Section 5F - which applies to certain proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court and other proceedings in Class 5 of the Land and Environment Court’s jurisdiction and which enables the Attorney General or the Director of Public Prosecutions to appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

24 The respondent submitted that:

The fact that Parliament has referred to the summary jurisdiction of the Supreme Court in s. 5AA, the summary jurisdiction of the Land and Environment Court in s. 5AB and the summary jurisdiction of the Supreme Court and the Land and Environment Court in s. 5C but has only referred to the summary jurisdiction of the Land and Environment Court in s. 5F but not the summary jurisdiction of the Supreme Court in s. 5F, demonstrates that the Appellant’s contention that the word “indictment” includes offences dealt with by the Supreme Court under the Supreme Court (Summary Jurisdiction) Act 1967 is untenable. Where Parliament has intended to confer jurisdiction upon the Court of Criminal Appeal in relation to summary proceedings in the Supreme Court, the Land and Environment Court or, indeed, the summary jurisdiction of a Court of Coal Mines Regulation express reference has been made.

25 It was further contended by the respondent that if the appellant's submission was correct that the term "indictment", because of its extended definition, was to be read in s 5F as referring to summary proceedings, s 5F would be the only section in the Act that covers proceedings in the summary jurisdiction of the Supreme Court without making any reference to it. This would offend the basic principle of construction that a word appearing in one section of the Act should carry the same meaning in other sections.

26 Mr Rushton submitted:

What the Appellant disregards is that if the word “indictment” in s. 5C and s. 5F were intended to include any “application made under” the Summary Jurisdiction Act or, by analogy, applications made to the Industrial Relations Commission or the Land and Environment Court there would have been no need to separately refer to the Supreme Court in its summary jurisdiction in s. 5C or to the Land and Environment Court in s. 5F (1) (b) (sic-(c)) of the Criminal Appeal Act 1912. These are compelling indications that the word “indictment” in s. 5C and s. 5F of the Criminal Appeal Act 1912 was not, in context, intended to extend to summary proceedings.

27 The respondent also referred to the legislative history of ss 5C and 5F. This may be summarised as follows:

(a) The enactment of Criminal Appeal (Crimes) Amendment Act 1979 was intended to divest the Court of Appeal of jurisdiction in criminal matters heard by the Supreme Court in its summary jurisdiction. The Act did this by vesting such jurisdiction in the Court of Criminal Appeal. The specific amendments that achieved this object were:

(i) the introduction of s 5AA of the Criminal Appeal Act which gave to a person convicted by the Supreme Court in its summary jurisdiction a right of appeal against conviction and sentence;

(ii) an amendment to s 5C of the Criminal Appeal Act whereby it took away the right of a defendant to request that a case be stated but gave to the Crown a right of appeal where the Supreme Court in its summary jurisdiction had quashed an application made under the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application.

(b) Thus it was submitted, in 1979 two objects were achieved, namely:

(i) the defendant’s rights of appeal in summary matters were transferred from the Court of Appeal to the Court of Criminal Appeal (s 5AA);

(ii) the Crown was given a right to appeal any “quashing” of an application made under s 4 (1) of the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application.

(c) By the Criminal Appeal (Amendment) Act 1986 the right of appeal vested in the Crown was extended to a case where an indictment was “stayed” as distinct from “quashed”. This amendment was also designed to divest the Court of Appeal of jurisdiction. In other words, where a defendant had obtained a stay, the Crown’s only recourse was to appeal to the Court of Appeal rather than the Court of Criminal Appeal. The words “or stayed” were inserted into s 5C following the word “quashed” where first occurring. This had the result that as a consequence of the Criminal Appeal (Amendment) Act, the opening words of s 5C read as follows:

Where the Supreme Court or the District Court has quashed or stayed any information, or indictment or any count thereof or the Supreme Court in its summary jurisdiction in any proceedings to which the Crown was a party has quashed any application made under s. 4 (1) of the Supreme Court (Summary Jurisdiction) Act or any charge specified in such an application ...

(d) Whereas Parliament gave to the Attorney-General or the Director of Public Prosecutions a right to appeal where an information had been “quashed” or “stayed” in the “regular” criminal jurisdiction of the Supreme Court or the District Court, such an appeal only lay to the Court of Criminal Appeal in the case of proceedings in the Supreme Court in its summary jurisdiction where the application or any charge specified in such application had been “quashed”.

(e) Accordingly, there was, as at 1986, no right vested in the Crown or the Attorney-General or the Director of Public Prosecutions to challenge a “stay” granted by a Judge exercising the summary jurisdiction of the Supreme Court. Clearly, Parliament had the opportunity when amending s 5C by the Criminal Appeal (Amendment) Act 1986 to further amend the section to permit appeals from “a stay” of proceedings in the summary jurisdiction of the Supreme Court to be taken on appeal to the Court of Criminal Appeal. It did not do so then and it has not done so since.

(f) Indeed, the addition of the words “or stayed” after the word “quashed” where first appearing in s 5C did not completely divest the Court of Appeal of jurisdiction. The right of an accused person when an application for a stay had been refused was, and remained, one of appeal to the Court of Appeal (see R. v Powch (1988) 14 NSWLR 136 at 138). Consequently, to solve this problem Parliament enacted the Criminal Appeal (Amendment) Act 1987. The words “or stayed”, which twelve months earlier had been inserted in to s 5C, were omitted therefrom. At the same time s 5F was enacted.

(g) Section 5F was not inserted to give the Court of Criminal Appeal jurisdiction over proceedings which had been “stayed” in the summary jurisdiction of the Supreme Court but rather was inserted to overcome a continuing anomaly, namely, that where a Judge of the Supreme Court or District Court in proceedings on indictment had refused to quash an indictment, the defendant could still appeal to the Court of Appeal (see Adler v District Court (NSW) (1990) 19 NSWLR 317).

28 It was submitted by Mr Rushton that the word “indictment” in s 5C of the Criminal Appeal Act does not include an “application made under s 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967" (see John L Pty. Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508 at 517-518, 525, 539). Accordingly, it was submitted, the appellant must be contending that the words “indictment” in s 5C and s 5F of the Criminal Appeal Act have different meanings because the appellant contended that "indictment", in s 5F by virtue of the extended meaning it is given in s 2 of the Criminal Appeal Act, includes an application under s 4(1) of the Summary Jurisdiction Act. Such an approach to the construction of a statute, particularly a statute concerning rights of appeal in criminal cases, it was submitted, was wrong. In John L at 518, the Court expressly disapproved of endeavours to give “wide” meanings to words that concerned rights of appeal by an instrument of the State. Mason CJ, Deane and Dawson JJ said:

In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to ‘the Crown’ being ‘a party’ a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey.

29 The respondent referred to the appellant's reliance on Taylor v Environment Protection Authority (2000) 50 NSWLR 48 where it was held by the Court of Criminal Appeal that a summons issued under the Summary Jurisdiction Act constituted an "information". The respondent submitted that in Taylor v Environment Protection Authority, s 59 of the Pesticides Act 1978 made it clear that the Land and Environment Court in its summary jurisdiction had jurisdiction to determine proceedings for an offence against the Act. It was in that “context” that the Court of Criminal Appeal construed the word “information” in s 59(3) of the Pesticides Act 1978 as including a “summons”. The relevant “context” was that s 59 granted jurisdiction to the Land and Environment Court to deal with the matter. Accordingly, in that context, the Court was prepared to construe the word “information” to include a summons.

30 The respondent submitted that there is no “context” in the present proceedings that suggests that the word “indictment” in s 5F of the Criminal Appeal Act should be extended to include a summons filed in the summary jurisdiction of the Supreme Court or, by analogy, an application filed for an order in the Industrial Relations Commission. The Industrial Relations Act does not purport to endow the Commission in Court Session with the same jurisdiction as the Court of Criminal Appeal in respect of criminal matters. The relevant jurisdictional “context”, it was submitted, is limited by s 196(2) of the Industrial Relations Act which expressly stipulates that the Criminal Appeal Act applies to any such appeal “in the same way as it applies to an appeal ... to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction”.

31 Mr Rushton submitted:

In contrast to the position in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 where s. 59 of the Pesticides Act 1978 expressly granted jurisdiction to the Land and Environment Court, the context created by s. 196 (2) of the Industrial Relations Act 1996 is one of limitation. The Full Bench has no greater jurisdiction to hear appeals pursuant to s. 5F than the Court of Criminal Appeal has to hear appeals pursuant to s. 5F from a Judge of the Supreme Court in its summary jurisdiction. The expression “for the prosecution of offenders on indictment in the Supreme Court” in s. 5F (1) (a) is clearly a reference to the prosecution of offenders in the Supreme Court’s “regular” criminal jurisdiction.

Submissions of the appellant

32 Whilst the appellant sought to address the various contentions put forward by the respondent, the main strands of its argument were:

(a) Section 5F of the Criminal Appeal Act has on at least three occasions since July 2000 been found by a Full Bench of the Commission in Court Session to be applicable in relation to the summary jurisdiction of the Court;

(b) Notwithstanding that there is now specific reference to appeals to the Court of Criminal Appeal from the Land and Environment Court in s 5F(1), no specific reference is required in relation to the internal appellate system of the Industrial Relations Commission. Section 196 of the Industrial Relations Act calls for the adapted provisions of the Criminal Appeal Act to be construed in the context of the jurisdiction of the Industrial Relations Commission. Section 196(3)(a) of the Industrial Relations Act requires that a reference in the Criminal Appeal Act to the Court of Criminal Appeal is taken to be a reference to a Full Bench of the Commission in Court Session. It is thus the words of the Criminal Appeal Act that are to be read as incorporating references to a Full Bench of the Commission in Court Session, not their construction in other contexts; similarly, with the other paragraphs of s 196(3). Their construction is to be determined by their own context. The reference in s 196(2) to “applies...in the same way” is to be read in this way, subject to s 196(3).

(c) In the context of the s 196 adaptation, the definition of “indictment” in s 2 of the Criminal Appeal Act is not to be construed more narrowly than s 2 itself provides. This is reinforced by the general substitution by paragraphs (d) and (e) of s 196(3) of references to the Attorney General and the Director of Public Prosecutions in the Criminal Appeal Act with references to the Minister and the prosecutor respectively. This substitution is clearly intended to apply to both s 5C and s 5F, giving effect to the policy also reflected by s 5F(1)(c). On the construction urged by the respondent, the substitution of the references in paragraphs (d) and (e) of s 196(3) could not be given the general application that is clearly intended.

(d) In order to understand the appeal scheme under s 196, the time sequence of the amendments must be examined. It must be recognised that the Industrial Relations Act scheme was grafted onto the Criminal Appeal Act. Section 196 of the Industrial Relations Act was enacted in 1996, well after s 5F, which was inserted in 1987 to address specific statutory considerations and appeal rights in respect of them. In examining the legislature's intention in 1996, it would be beyond understanding that the legislature intended that an accused person would have a right of appeal but none effectively to a prosecutor. It would not make sense to approach the scheme as proposed by the respondent as the meaning given would not result in the scheme working in a sensible and practical fashion.

Consideration

33 The respondent proceeded to make its submissions on the basis of an assumption that the judgment and orders of Marks J were interlocutory in nature. The appellant contended that, indeed, this was the case. We do not consider there is any doubt that his Honour's judgment permanently staying the proceedings was an interlocutory judgment: See WorkCover Authority of New South Wales (WorkCover Authority of NSW (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128 at [36] to [74]; Regina v King [2003] NSWCCA 399 at [18]; and, the judgments of the High Court in Re: Luck (2003) 203 ALR 1 and Bienstein v Bienstein (2003) 195 ALR 225. In Regina v King, Spigelman CJ expressly held in the paragraph referred to, that:

[A]n order for a permanent stay is not equivalent to a decision to direct a verdict of acquittal ... a stay does not lead to an acquittal under circumstances. There has no been trial.

34 The central issue in these proceedings then is whether, pursuant to s 5F of the Criminal Appeal Act and s 196 of the Industrial Relations Act, an appeal lies from the interlocutory judgment of Marks J permanently staying the proceedings. In the alternative, the issue is whether an appeal lies under s 5C of the Criminal Appeal Act and s 196 of the Industrial Relations Act.

35 The primary issue is a question of some complexity and difficulty and while we found the comprehensive submissions of counsel for the respondent helpful, especially those relating to the history of the relevant provisions of the Criminal Appeal Act, we find ourselves unable to accept some of the broad contentions by the respondent. Firstly, we do not consider that in determining this question it is a simple matter of applying the so-called principle that a word appearing in one section of an Act should carry the same meaning in other sections. For instance, the respondent submitted that "indictment" in s 5C of the Criminal Appeal Act had been held not to include an "application made under s 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967" (see John L). It was submitted that a different meaning (that is, an indictment in s 5F did include an application under s 4(1) of the Summary Jurisdiction Act) could not be assigned to "indictment" in s 5F as contended by the appellant because the word indictment would then have two meanings in consecutive provisions of the Act.

36 However, there is clear authority to which we later refer in par [40] of this judgment that any presumption that the same meaning is to be given to a particular word or expression where it variously appears in the statute, is one of only very limited operation particularly where the overall circumstances of the statutory scheme point to a different conclusion. It is clear that the Criminal Appeal Act has been frequently amended over many years and it seems that the various "draftspersons" have not attempted to draft the amendments in a uniform way or to do so with regard to the economic use of words or with regard to exact usage. For example, s 10 of the Criminal Appeal Act deals with the question of the time for filing appeals. It is in the following terms:

10 Time for appealing

(1) Any person convicted on indictment desiring to appeal to the court, or to obtain the leave of the court to appeal from any conviction, or sentence, shall give notice of appeal or notice of application for leave to appeal, in such manner as may be prescribed, within 28 days of the date of such conviction or sentence.

(2) (Repealed)

(3) The court may, at any time, extend the time within which notice of appeal, or notice of an application for leave to appeal, is required to be given to the court.

(4) Any person entitled under section 5AA (1), under section 5AA (1) as applied by section 5AB, 5AC, 5AD and 5AF or under section 5DB, to appeal against a sentence shall give notice of appeal, in such manner as may be prescribed, within 28 days of the date of the sentence or within such extended time as may, in any case, be allowed by the court.

37 Section 10 of the Criminal Appeal Act is a provision that has plainly grown with the effluxion of time and with amendment to it. It is drafted in a rather unwieldy manner. For example, at a very superficial level, there is no apparent reason why, in respect of appeals of the kind referred to in sub-section (1), the power in the Court to extend time is set out in a different sub-section, whereas in respect of the different appeals referred to in sub-section (4), the relevant power to extend time is to be found in the same sub-section which deals with the time for lodging appeals.

38 This provision sufficiently demonstrates the uneven and almost "patchwork" nature of the way in which amendments to the Criminal Appeal Act have been made over the years. The difficulties in the construction of s 10(4) in seemingly failing to deal with appeals against conviction were considered by the Full Bench of this Court in the 1999 judgment in McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 at 468 to 471.

39 Accordingly, it may be concluded that the Criminal Appeal Act is a statute which fits the description given by Priestley JA in Murphy v Farmer (1987) 87 FLR 149 (NSWCA) at 151 as follows:

Secondly, the history and forebears of ss 229 and 234 show that they have reached their present form by change and accretion without great attention being paid to any idea of making all their parts fit neatly into an obvious scheme requiring exact harmonising of language. ...

In referring to the change and accretion in ss 229 and 234 I have in mind that the present form of those sections is the product of a long period of evolution, some of which can be traced through ... The sections I have referred to in the earlier Acts all seem to raise problems of construction similar to that in the present case and changes and additions to the legislation all appear to have been made without particular attention being given to the present point. Further, although there is, in a general way, a fairly regular use of terms in the various sections, there does not seem to have been any attempt at a high degree of consistency in the use of terms such as false, untrue or misleading so far as their objective and subjective senses are concerned.

40 As was recently observed by the Full Bench of the Commission in Austeck Pty Limited v Atsalos [2003] NSWIRComm 290 at [42], when the proceedings in Murphy v Farmer were dealt with in the High Court in Murphy v Farmer (1988) 165 CLR 19 at 27, the majority of the Court (Deane, Dawson and Gaudron JJ) agreed with the approach of Priestley JA and said:

[A]s Gibbs J commented in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10, the presumption that a word is used with a uniform meaning in a statute is not one “of very much weight ... it all depends on the context”. In the same case (at 15), Mason J pointed out that the “presumption readily yields to the context”. The presumption of a consistent use of the word “false” is, in any event, of little assistance in relation to the construction of a statute such as the Act where, as Priestley JA pointed out in the Court of Appeal, there does not appear to have been any attempt by the legislature to achieve a “high degree of consistency” in the use of terms such as false, untrue and misleading.

41 In a further illustration of the uneven way in which the Criminal Appeal Act is drafted and the applicability of Murphy v Farmer, reference may be made to John L. In that case, the High Court considered the effect of s 5C of the Criminal Appeal Act, which was then in substantially the same terms as it is now. The section provided two types of appeal to the Court of Criminal Appeal: first, "[w]here the Supreme Court or the District Court has quashed any information or indictment or any count thereof" and second, "where the Supreme Court in its summary jurisdiction, in any proceedings in which the Crown was a party, has quashed any application made under s 4(1) of the Supreme Court (Summary Jurisdiction) Act, 1967 or any charge specified in such application".

42 The Court of Criminal Appeal had held that the appeal to it was competent on both bases; that is, because it was an appeal from a decision of the Supreme Court quashing an information under the first limb of s 5C and also because it was an appeal from a decision in which the Supreme Court in its summary jurisdiction in proceedings to which the Crown was a party, had quashed an application made under s 4(1) of the Summary Jurisdiction Act pursuant to the second limb of s 5C.

43 The appellant in John L argued that the first limb of s 5C did not apply at all in respect of an information instituting proceedings in the summary jurisdiction of the Supreme Court since the second limb of the section, which expressly dealt with appeals from a decision of the Supreme Court in its summary jurisdiction quashing an application under s 4(1) of the Summary Jurisdiction Act, should be construed as exhaustively defining the right of appeal in any case with the consequence that there was no right of appeal lies unless the Crown was "a party" to the proceedings at first instance. In support of its argument, the appellant relied on the legislative history of s 5C, which showed that the second limb of the section, which was added in 1979, transferred the jurisdiction to hear appeals from the Supreme Court in its summary jurisdiction from the Court of Appeal to the Court of Criminal Appeal. The majority of the High Court (Mason CJ, Deane and Dawson JJ) said that there might be considerable force in the appellant's argument if the ordinary procedure for making an application under the Summary Jurisdiction Act was by way of information. However, as otherwise observed in the judgment, the procedure for making such an application was by way of summons and the application in the present matter was made not under either procedure but pursuant to the apparent legislative intent that proceedings under the Consumer Protection Act 1969 should be made pursuant to its particular provisions which required that an information should be filed. The majority, in concluding that the first limb of s 5C conferred a right to appeal, did so on the following basis:

In terms, the first limb of s.5C confers a right of appeal to the Court of Criminal Appeal from a decision quashing an information, regardless of whether the proceedings upon the information, if it had not been quashed, would have been heard by a judge and jury or summarily by a judge alone. We can find no warrant, in either the legislative history of s.5C or the words of the second limb of that section, for constricting the plain general words of the first limb in the manner for which the appellant contends. Indeed, as has been seen, the words of the first limb are more appropriate to refer to a decision quashing an information as defective than are the words of the second limb. It follows that an appeal lay to the Court of Criminal Appeal under the first limb of s.5C from the decision of Yeldham J. that the information in the present case was invalid by reason of its failure adequately to identify the alleged offence.

44 Their Honours noted that it was, therefore, strictly speaking, unnecessary to examine the question whether an appeal was also available pursuant to the second limb of s 5C but, having formed a clear view on the section and since this was the primary basis upon which special leave to appeal had been granted, a brief indication was provided of their Honours' view on the issue. It was concluded that an appeal did not lie to the Court of Criminal Appeal pursuant the second limb of the section because the proceedings before the Supreme Court were not proceedings to which the "Crown" was a "party". This conclusion resulted from an analysis of the role of the informant as an officer of the relevant New South Wales Government Department, and an examination of the nature of his authority to prosecute. Their Honours concluded:

The requirement of the second limb of s.5C is not however that the proceedings be "public" or that they be brought on behalf of "the State" or by "the State" as a party or that they can be equated with "Crown proceedings". It is that "the Crown", which is a limited aspect of "the State" in the broad sense, be itself "a party". In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to "the Crown" being "a party" a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by Mr. Clayton as "a person" (s.56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs (contrast, e.g., proceedings to which "the Minister" (s.56B) or "the Commissioner with the consent of the Minister" (s.56A(1)) is a party). They were not proceedings to which the Crown was a party in any accepted meaning of the words "Crown" and "party".

45 The detailed reference to the judgment to the High Court in John L has been necessary as it demonstrates that the line drawn in the Criminal Appeal Act between the Supreme Court's regular criminal jurisdiction and its summary criminal jurisdiction through the use of the words "indictment" and "information" cannot be rigidly applied. It may be seen from John L that s 5C confers a right of appeal regardless of whether the proceedings upon the information would have been heard "by judge and jury or summarily by a judge alone".

46 It is necessary to refer to a number of authorities that did not figure significantly in the argument before us. They are the judgment of the Court of Criminal Appeal in Fraser v The Queen (No 2) (1985) 1 NSWLR 680 and the subsequent judgment which followed Fraser v The Queen, that is, R v Hull (1989) 16 NSWLR 385. Fraser v The Queen concerned the costs order which should be made following a successful appeal against convictions for contempt of court in which the Crown relied upon the applicability of the Costs in Criminal Cases Act 1967, which provided certain limitations or preclusions in respect of costs orders in criminal proceedings against the Crown.

47 The tension in the relevant legislative schemes was between s 76 of the Supreme Court Act 1970, which provided a broad discretion in the court to award costs and the Costs in Criminal Cases Act which, relevantly, limited costs in certain cases, one of which was in proceedings relating to any offence, whether punishable summarily or upon indictment, where the defendant, after a hearing on the merits, was acquitted or discharged as to the "information then under enquiry". The question was whether the proceedings as to alleged contempt were proceedings to which the Costs in Criminal Cases Act applied and in that context McHugh JA considered the way in which the term "information" had been used historically in New South Wales legislation. Because of its importance to the present matter, and also because it was applied expressly by Gleeson CJ in R v Hull four years later, it is necessary to refer to it in detail and to set out a substantial extract from his Honour's judgment. His Honour initially referred to the difficulties in construing s 2 of the Costs in Criminal Cases Act (at 689):

The terms of the Costs in Criminal Cases Act, s 2, are very curious. They do not appear to apply to an acquittal by a jury after a trial on indictment. This is because the power to grant a certificate in relation to any offence whether punishable summarily or upon indictment is conditioned upon the applicant for the certificate bringing himself within either s 2(a) or s 2(b). Section 2(b) deals with appeals. Section 2(a) deals with a hearing on the merits as to an “information”. There is no mention of a hearing upon an indictment in s 2(a) although that word is used in s 2(b).

48 His Honour then referred to differences in the contemporary use of the term "information" and its older meaning which was "rooted in [New South Wales] constitutional history" (at 689 - 690):

The term “information” is most frequently understood in New South Wales to be the initiatory step before a magistrate in proceedings of a criminal nature which may be disposed of summarily or later on indictment after committal. But the term has an older meaning. In R v Slator (1881) 8 QBD 267 at 274 Bowen J referred to this other meaning of “information”:

“The distinction between an indictment and an information is one founded in the history of the law and liberties of this country. There are two great ways of proceeding against and bringing to trial a person accused of a crime; one is by proceeding against him before a grand jury, and time out of mind that proceeding has been known as an ‘indictment’; the other mode is by proceeding without a grand jury upon an information, which is initiated either by the law officers of the Crown or by a private prosecutor with the leave of the Court.”

In the same case Hawkins J said (at 272):

“A well-defined distinction exists and has long existed between an indictment and an information. An indictment is ‘an accusation found by an inquest of twelve or more upon their oath’ "whilst an information is a proceeding by the Attorney General of his own motion without the intervention of a grand jury.”

The distinction between an information in the usual sense of an initiatory step before a magistrate and an indictment is clearly made in the Justices Act 1902. An information may be laid before a justice in any case where a person has committed or is suspected to have committed any treason or other indictable offence in various specified places: Justices Act, s 21. One of those places is “on land beyond the seas, when for such offences an indictment may legally be preferred in New South Wales” (my emphasis). An information may also be laid before a justice in any case where a person has committed or is suspected of having committed an offence or act in New South Wales which is liable to be summarily punished: Justices Act, s 52. The Justices Act, s 41, dealing with the procedure on the hearing of an information concerning an indictable offence, also draws a distinction between an information against a person and the presentation of an indictment against him.

In New South Wales the term “information” in its older meaning and the term “indictment”, however, are frequently used interchangeably. This apparent anomaly is rooted in our constitutional history. Before the passing of the Act 9 Geo IV c 83 the method of presentment of trial by grand jury existed in New South Wales: R v McKaye (1885) 6 LR (NSW) 123 at 127. But by 9 Geo IV c 83, s 5, it was provided that, until further provision should be made for proceedings by juries, all felonies misdemeanors and offences punishable in the Supreme Court of New South Wales should be prosecuted by information in the name of His Majesty's Attorney-General or other officer duly appointed for such purpose. Jordan CJ pointed out in R v Woolcott Forbes (1944) 44 SR (NSW) 333 at 337; 61 WN 219 at 220, that provision “was afterwards made for trial by petit jury; but no provision has been made for indictment by grand jury. Hence, s 5 of 9 Geo IV c 83 still provides the method for putting persons on their trial in the Supreme Court”. Section 5, of course, must also be read in conjunction with the provisions of the Justices Act, Pt IV, Div 1, which prescribes the procedure before magistrates in committal proceedings for indictable offences: Barton v The Queen (1980) 147 CLR 75 at 88-89 per Gibbs and Mason JJ (emphasis added).

49 McHugh JA then referred, at 690, to s 4 of the Crimes Act 1900, which he noted provides that:

... unless the context or subject matter otherwise indicates or requires, “indictment” includes any “information” presented or filed as provided by law for the prosecution of offences. By a combination of s 3 and the Second Schedule of the Crimes Act, s 4, so far as its provisions can be applied, is in force with respect to all offences, whether by common law or by statute, whensoever committed and in whatsoever court tried.

50 Significantly, the definition of "indictment" in s 4 of the Crimes Act referred to in the last extract from Fraser v The Queen is identical to that in the Criminal Appeal Act, apparently indicating that the source of the definition in the later statute is the definition in the earlier, 1900, Crimes Act.

51 In concluding that in s 2(a) of the Costs in Criminal Cases Act, the word "information" should be construed to include a hearing on indictment, his Honour also noted that, if "information" includes "indictment" in s 2(a), it necessarily means that s 2 does not consistently use the term "information" in the sense that that term is used in the Justices Act, ss 21 and 52.

52 The consideration by McHugh JA in Fraser v The Queen shows, in our view conclusively, that:

(a) terms or expressions such as "information" or "indictment" are used in variety of different senses in various criminal law statutes;

(b) that the definition of "indictment" in some statutory contexts (which in this case includes s 2 of the Criminal Appeal Act) is not intended, notwithstanding it apparent terms, to give the expression an extended meaning but rather to make plain that it applies not only in terms to indictments, but also in circumstances where the term "information" is used, albeit as an historical anachronism, as a synonym for indictment.

53 In so far as s 5F is concerned, given our conclusion that the meaning of the term "indictment" is not extended by the definition in s 2 of the Criminal Appeal Act to include "information" in its most frequently understood sense, "indictment" in s 5F(1)(a) must be taken to refer to the regular criminal jurisdiction of the Supreme Court and not the summary jurisdiction of that Court. It follows that under s 5F an appeal does not lie to the Full Bench of this Court from an interlocutory judgment or order of a judicial member of the Court made in the Court's summary criminal jurisdiction.

54 There are a number of other reasons that are related to the construction of the Criminal Appeal Act that have led us to the conclusion that an appeal under s 5F is not available to the Crown (using that term in its broadest sense) from an interlocutory judgment or order made in the Supreme Court's summary jurisdiction. Those reasons are as follows:

(a) If it were to be accepted that the term "indictment" as it is used in s 5F refers to summary criminal proceedings, it would be the only section in Part 3 of the Criminal Appeal Act where the word “indictment” included a summons filed in the summary jurisdiction of the Supreme Court.

(b) Where Parliament has intended to confer jurisdiction upon the Court of Criminal Appeal in relation to summary proceedings in the Supreme Court, the Land and Environment Court or the Court of Coal Mines Regulation, express reference has been made: See ss 5AA, 5AB, 5AC, 5AE and 5C of the Criminal Appeal Act. By comparison, s 5F only gives the Crown a right of appeal from interlocutory judgments or orders in relation to certain types of proceedings, none of which expressly include the summary jurisdiction of the relevant court, except the Land and Environment Court, which pursuant to s 5F(1)(c), exercises summary jurisdiction over certain classes of offences.

(c) (i) Reference is made in s 5F(1)(c) to appeals from proceedings "in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979)." Section 21 of the Land and Environment Court Act 1979 provides that:

The Court has jurisdiction (referred to in this Act as “Class 5” of its jurisdiction) to hear and dispose of in a summary manner: [the section then lists a number of proceedings including in s 21(a) proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997].

(ii) Section 214 of the Protection of the Environment Operations Act in Part 8.2 of that Act provides:

(1) Proceedings for an offence arising under Part 5.2 may be dealt with:

(a) summarily before the Land and Environment Court in its summary jurisdiction, or

(b) on indictment before the Supreme Court.

(2) If any such proceedings are brought in the Land and Environment Court, the maximum period of imprisonment that the Court may impose for the offence is 2 years, despite any other provision of this Act.

(iii) Part 5.2 of the Protection of the Environment Operations Act refers to "tier 1" offences which are the more serious offences. As s 214 makes clear, these offences may be dealt with summarily by the Land and Environment Court or on indictment by the Supreme Court. Therefore, it became necessary for the legislature to include s 5F(1)(c) in the Criminal Appeal Act to address the fact that an offence that could be dealt with on indictment in the Supreme Court could also be dealt with summarily in the Land and Environment Court. That the legislature chose to include s 5F(1)(c) in the Criminal Appeal Act reinforces the distinction between proceedings by way of indictment on the one hand and summary proceedings on the other.

(d) Counsel were not able to identify any instances of an appeal under s 5F from the Supreme Court's summary jurisdiction. We note, however, there have been a number of instances of stated cases to the Court of Appeal from the Land and Environment Court pursuant to s 5AE of the Criminal Appeal Act and its predecessor provision s 5A(1A).

55 A further matter that requires consideration was the appellant's contention that “section 196 of the Industrial Relations Act calls for the adapted provisions of the Criminal Appeal Act to be construed in the context of the jurisdiction of the Industrial Relations Commission.” In other words, as we understand the appellant's submissions, it was contended that the context in which the Full Bench should consider its jurisdiction was primarily the Industrial Relations Act; there was nothing in that statute that indicated that in exercising summary jurisdiction there was no jurisdiction to hear appeals from interlocutory judgments. Therefore, the Full Bench should regard the term "indictment" in s 5F of the Criminal Appeal Act as including an information, such information being in the form of an application under s 4(1) of the Summary Jurisdiction Act: See Taylor v Environment Protection Authority.

56 Mr Hall submitted that s 5F(2) of the Criminal Appeal Act could be read as follows:

The Minister or the prosecutor in the proceedings before the Commission in Court Session may appeal to the Full Bench of the Commission in Court Session against an interlocutory judgment or order given or made in proceedings to which the Industrial Relations Act applies.

57 We cannot accept the appellant's submissions in this respect. Section 168 of the Industrial Relations Act as it applied to these proceedings required that proceedings for any offence were to be dealt with summarily and that the Summary Jurisdiction Act applied to proceedings before the Commission in Court Session "in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction". Similarly, s 196(2) provides that:

The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction (our emphasis).

58 To accept the contention that the Commission in Court Session has jurisdiction to hear appeals from interlocutory judgments and orders in its summary jurisdiction would mean that the Full Bench had, at least in one respect, greater powers than the Court of Criminal Appeal. Given the wording of s 196(2), we do not consider that was the legislature's intention.

59 The appellant relied on Taylor v Environment Protection Authority where it was held that a summons under Pt 75, r 7 of the Supreme Court Rules, as adapted by Pt 6, r 2(d) of the Land and Environment Court Rules 1980 was an information for the purposes of s 59(3) of the Pesticides Act 1978. In other words, as a summons claiming an order under s 4 of the Summary Jurisdiction Act was regarded by the Court of Appeal in Taylor v Environment Protection Authority as an information, by analogy an application under the Summary Jurisdiction Act pursuant to r 217B of the Commission's Rules was also an information for the purposes of the Criminal Appeal Act. As an "indictment" includes "any information" under the Criminal Appeal Act, the prosecutor in proceedings under s 196 of the Industrial Relations Act could appeal an interlocutory judgment or order under s 5F of the Criminal Appeal Act.

60 It may well be the case that an application under s 4(1) of the Summary Jurisdiction Act can be regarded as an information. However, it is necessary to consider the context in which the term "information" is used. In Taylor v Environment Protection Authority, s 59 of the Pesticides Act provided that an offence could be disposed of by the Land and Environment Court sitting in its summary jurisdiction and that proceedings could be commenced by information. The EPA commenced the proceedings by way of a summons under Pt 75, r 7 of the Supreme Court Rules, as adapted by Pt 6, r 2(d) of the Land and Environment Court Rules. The Court of Appeal held that s 59(3) of the Pesticides Act was mandatory and required that proceedings had to be commenced by an information. The Court held that the summons was an information.

61 The circumstances before the Court of Appeal in Taylor v Environment Protection Authority were quite different to those that are before us. Even though, as we have said, an application under s 4(1) of the Summary Jurisdiction Act may, depending on its context, be an information, the context in which the word "indictment" is used in s 5F does not permit that conclusion for the reasons we have already addressed.

62 It follows from what we have said that we have found it appropriate to reconsider the earlier judgments of this Court in Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16, Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156 and WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128, principally because this is the first opportunity a Full Bench has had to consider the operation of s 5F with the benefit of comprehensive submissions that included relevant statutory histories. It also follows that the judgments in Concrete Constructions, Ridge and TMG are now to be considered, in the one respect identified in this judgment, to be incorrect. It should be made clear that the authority of those decisions is not otherwise affected. In Ridge the appeal was brought by a defendant whose motion at first instance had been rejected by the trial judge. The defendant may well have been able to challenge the trial judge's decision by means of a reference, by leave, to the Full Bench pursuant to s 5AE of the Criminal Appeal Act.

63 The judgment in Concrete Constructions was dealt with and decided as a reference to the Full Bench under s 5AE. The Full Bench made clear that to the extent that it dealt with the purported appeal pursuant to s 5F, it was not determining whether it was competent (see (2000) 99 IR 16 at [47]) and had not heard argument on that question.

64 In TMG, it was argued that the appeal was available under both s 5F and s 5C of the Criminal Appeal Act. Since it was held that s 5F applied, the Full Bench did not consider it was necessary to determine definitively whether an appeal lay under s 5C, although the Full Bench indicated that it was inclined to the view that an appeal did lie (see (2002) 116 IR 128 at [72]). Further, it may have been possible in that case that a reference of questions of law could have been made to the Full Bench pursuant to s 5AE. Whether such reference was available, by leave or as of right, would depend on the identity of the party seeking the reference and whether it was sought "before the completion of [the] proceedings" in terms of s 5AE: See, for example, EPA v Land and Environment Court of NSW [2004] NSWCA 50.

65 We turn to consider whether an appeal is available under s 5C of the Criminal Appeal Act. Under that section, where the Supreme Court quashes any application made under s 4(1) of the Summary Jurisdiction Act, the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal.

66 There has been no order of the Court "quashing" any application under s 4(1) of the Summary Jurisdiction Act or any charge specified in such an application. The term "quashed" in the context of the first limb of s 5C was referred to in John L at 517 where Mason CJ, Deane and Dawson JJ said:

the reference to an information being "quashed" in the first limb of s.5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information.

67 We do not consider that the order of Marks J staying the proceedings could be said to be an order "quashing" the proceedings.

68 We find that the Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act.

69 Before making the orders in this matter there is one further issue that requires comment. Whilst there may be little doubt that the issues in this matter may be ventilated by a reference under s 5AE of the Criminal Appeal Act, we consider, nonetheless, that this judgment demonstrates the need for urgent reform in the statutory scheme of appeals from judgments in this Court's criminal jurisdiction. Such reform would be in the interests of both prosecutors and defendants.

70 We order that the appeal from the judgment and orders of Marks J in Matter No. IRC01/5413 be dismissed. Unless application is otherwise made within 14 days, such application being accompanied by outline submissions, the appellants shall pay the respondent's costs of these proceedings.

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LAST UPDATED: 28/04/2004