The Queen v Lowrie[1997] QCA 434

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4487 of 1997

Brisbane

[R. v. Lowrie]

THE QUEEN

v.

KERRY CATHERINE LOWRIE

(Applicant)

Davies J.A.

Pincus J.A.

Shepherdson J.

Judgment delivered 2 December 1997

Separate reasons for judgment of each member of the Court, Davies and Pincus JJ.A. concurring as to the orders made, Shepherdson J dissenting.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4487 of 1997

Brisbane 

Before Davies J.A.

Pincus J.A.

Shepherdson J.

[R. v. Lowrie]

THE QUEEN

v.

KERRY CATHERINE LOWRIE

(Applicant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 2 December 1997

The facts relevant to this appeal, or purported appeal, are set out in the reasons of Pincus J.A. which I have read.  I adopt his Honour's statement of those facts and I agree with his Honour that the only question which this Court must now decide is whether it has jurisdiction to entertain the applications made to it for leave to appeal against orders made by White J. on 5 March 1997 refusing to stay proceedings on or to quash the indictment for murder against the applicant.

It was not contended for the applicant that he had any right of appeal to this Court under the Criminal Code and I agree with the reasons of Pincus J.A. in rejecting the view that the Criminal Code conferred any such right.

One basis for such a right, for which there is authoritative support,^[1] is s.254 of the Supreme Court Act 1995^[2] which is in the following terms:

"An appeal shall lie to the Court of Appeal from every order made by a judge in court or chambers except orders made in the exercise of such discretion as aforesaid."

The reference to "the exercise of such discretion as aforesaid" is a reference to the preceding s.253^[3] and the more general reference to "every order made by a judge in court or chambers" is a reference to orders made in the exercise of the jurisdiction referred to in s.250^[4] which is in the following terms:

"(1)Any judge of the court may subject to any rules of court exercise in court or in chambers all or any part of the jurisdiction of the said court in all such causes and matters and in all such proceedings in any causes or matters as before the commencement of the Judicature Act 1876 might have been heard in court or in chambers respectively by a single judge of the said court or as may be directed or authorised to be so heard by any rules of court to be hereafter made.

2. In all such cases any judge sitting in court shall be deemed to constitute the court.
3. However, every issue of law and every special case stated by a consent of parties shall be heard and determined by a single judge in the first instance unless either party shall require that the same be heard and determined by the Court of Appeal in the first instance in which case the same shall be so heard and determined accordingly."

The question then is whether the orders made by White J. were orders made in a cause or matter or in a proceeding in a cause or matter of a kind which, before the commencement of the Judicature Act 1876 might have been heard in court or in chambers by a single judge of the court.  The only prior relevant reference to "causes or matters" in the Supreme Court Act 1995 is in s.244^[5] which refers to "every civil cause or matter commenced in the Court after the passing of this Act".  There is no relevant provision referring to criminal causes or matters but there was in s.19 of the Judicature Act 1876, from which Act the above sections were taken.  That section provided as follows:

"The practice and procedure in all criminal causes and matters whatsoever in the Court including the practice and procedure with respect to Crown cases reserved shall be the same as the practice and procedure in similar causes and matters before the commencement of this Act."

That section was repealed by the Supreme Court Act 1921.^[6]

At the time of the enactment of the Judicature Act there was no right of appeal in criminal matters.  There was of course no common law right and the only statutory rights of review were of very limited operation.  They were by way of writ of error brought upon any judgment on an indictment in a criminal case;^[7]  and by way of reserving a question of law, upon conviction, for consideration of the judges of the Supreme Court.^[8]  That s.10 was  not intended to change that is confirmed by s.19.  The Criminal Code Act 1899 repealed those statutory rights but re-enacted them in a modified form in the Criminal Code.^[9]

Rules of Court had been enacted as a schedule to the Judicature Act.  Order XXXVIII provided for new trial and O.LVII provided for appeal but O.LIX provided that nothing in the rules should affect the practice or procedure in criminal proceedings.  Even before the Judicature Act there had been provisions for new trial of civil actions at common law^[10] and the Supreme Court Act 1867^[11] provided for appeals in equitable and other matters.

By the Criminal Code Amendment Act of 1913 ss.668 to 672 of the Criminal Code were repealed and replaced by sections conferring upon a person convicted, for the first time, a right of appeal against conviction and, with leave, a right of appeal against sentence.  That Act also established a Court of Criminal Appeal and conferred on the judges the power to make general rules for the purposes of appeal.  Such rules came into effect in 1914.^[12]  Rules with respect to the trial of criminal offences and for review by writ of error and by the reservation of questions of law had come into force in 1900.^[13]  But it could no longer be said by 1914 that the practice and procedure in criminal causes and matters was the same as the practice and procedure in similar causes and matters before the commencement of the Judicature Act.  Section 19 of that Act no longer had any operation.  It was not surprising therefore that it was repealed in 1921.

As the extensive historical analysis conducted by members of the Court in The King v. Foster & Ors.;  ex parte Gillies^[14] shows, a similar development took place in England.  It was not until 1907 that in that country the writ of error was abolished and a right of appeal against conviction conferred.^[15]

The question before the Full Court in The King v. Foster was whether an appeal lay to that court against a judgment of a judge of the Supreme Court that each of three persons was guilty of contempt of court.  It was common ground in the judgments of the court that, if any such appeal lay, it lay under s.10 of the Judicature Act;  that the cause or matter in which the judgment was given was a criminal cause or matter;  and that whilst s.19 remained in the Judicature Act no such appeal lay.  But the majority held that the repeal of s.19 enlarged the operation of s.10 so that it applied to a judgment in a criminal cause or matter for contempt.^[16]

The majority reached this conclusion because they held, in effect, that s.19 operated by way of a proviso to s.10 and that, the proviso having been removed, s.10 should be given the meaning which it would ordinarily have borne had s.19 never been enacted.  They relied upon Bank for Savings v. The Collector^[17] for the proposition that the removal of a proviso to a section enlarges the application of the words to which it is a proviso.

However there is no basis, in my view, either contextually or historically for construing s.19 as a proviso to s.10.  It is not stated as such and on its face does not appear to be related to s.10.  Moreover s.19 was a section dealing with procedure generally in criminal cases and matters whilst s.10 was a section dealing specifically with appeals.  Nor does such a construction accord with the historical content before the Judiciary Act or after it.  In particular it is inconsistent with the provisions of the Criminal Practice Act, the Criminal Code 1900 and the Criminal Code Amendment Act 1913 to which I have referred.  These provisions are inconsistent with an intention to give s.10 an expanded operation by the repeal of s.19.  In both its linguistic and its historical context the intention of s.19 was that the practice and procedure of criminal causes and matters, both at trial and on review, should remain unaffected by the Judicature Act;  and, as appears from subsequent legislation, so they did.

If the reasoning of the majority in The King v. Foster is correct, the repeal of s.19 had the effect either of repealing the recently enacted ss.668B to 669 of the Criminal Code to the extent that they limited appeals from any order of a judge, for example a sentence;  or it had the effect of conferring wider rights of appeal in respect of interlocutory decisions made in the course of a criminal trial than in respect of some final decisions.

I therefore think that the reasoning of the majority in The King v. Foster was wrong and that Blair C.J. was correct in concluding that the repeal of s.19 did not enlarge the operation of s.10.  It is unnecessary to consider whether, on any other basis, the Full Court in that case had jurisdiction to determine whether the judgment below was wrong.  It is sufficient for present purposes to say that, for reasons which I shall mention later, proceedings for contempt may never have been within the contemplation of s.19.

The reasoning of the majority in The King v. Foster was accepted as correct in Ex parte Maher^[18] and Ex parte Veltmeyer.^[19]  Both cases involved appeals against orders made in bail applications.  The first was an appeal by the Crown against the grant of bail pending appeal.  The second was against a refusal to grant bail to persons charged with indictable offences under the Drugs Misuse Act.  And, as Pincus J.A. has pointed out, it was followed in R. v. Queensland Television Ltd.;  ex parte Attorney-General,^[20] another contempt case.  To the extent that they rely on the reasoning in The King v. Foster they are, in my respectful opinion, wrong.  That is not to say that the decisions in any of those cases was wrong.^[21]  But it is unnecessary to consider the correctness of these decisions.  It is sufficient to say of them, as I have of The King v. Foster, that their correctness cannot depend on the repeal of s.19 of the Judicature Act.

It follows from what I have said that the practice and procedure referred to in s.19, so far as it is relevant to appeals, was the practice and procedure referred to in ss.39, 40 and 48 to 51 of the Criminal Practice Act 1865.  Section 40 conferred a right to bring a writ of error upon any judgment "on any indictment" in any criminal case and s.48 referred to reserving any question of law upon conviction for, in effect, an indictable offence.  Those provisions were thus confined to proceedings on indictment.  It may be therefore that s.19 was limited in its operation to orders made in proceedings on indictment.  The limited rights of appeal provided in Chapter 67 of the Criminal Code in respect of judgments or orders in such proceedings lends support to the conclusion that, at least in respect of those judgments or orders, those rights are exclusive.^[22]  The appeal sought to be instituted here was in respect of orders made in proceedings on indictment.

The only other possible statutory basis for a right of appeal here is that which derives from the Supreme Court of Queensland Act 1991.  Section 7 provides that the Supreme Court, as formerly established as the superior court of record in Queensland, is continued in existence;  s.8 provides that the court has all jurisdiction that is necessary for the administration of justice in Queensland;  and s.9 provides that, except as provided in it, the Act does not take away, lessen or impair any former jurisdiction.  These sections appear to be doing no more than confirming that, notwithstanding changes in structure of the court effected by the Act, its jurisdiction is not affected.  Sections 21 to 24 of the Supreme Court Act of 1867, which stated that jurisdiction, continued in force and were, in effect, re-enacted as ss.200-202 of the Supreme Court Act 1995.

Two further sections appear to deal specifically with the jurisdiction of the Court of Appeal.  The first of these is s.29 which is in the following terms:

"(1)Subject to this Act, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine.

2. The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act.
3. The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act."

This section appears to do no more than replace the Full Court with the Court of Appeal in civil matters and, by the combination of subs.(2) and the amendment by the then s.111 of s.668(1) of the Criminal Code, to replace the Court of Criminal Appeal with the Court of Appeal in respect of matters under Chapter 67 of the Criminal Code.

The other section is s.69, subs.(1) of which is in the following terms:

"Subject to this and any other Act, an appeal lies to the Court of Appeal from -

1. any judgment or order of the court in the Trial Division;  and
2. without limiting paragraph (a) -

1. a judgment or order of the court in the Trial Division made under this Act;  and
2. any opinion, decision, direction or determination of the court in the Trial Division on a stated case;  and
3. any determination of the court in the Trial Division in a proceeding remitted under s.68."

Section 10 of the Judicature Act continued in force and was, as I have mentioned, re-enacted as s.254 of the Supreme Court Act 1995.  Section 29 has the section heading "Jurisdiction and powers" and s.69 has the section heading "Appeal in proceedings in the court".  It may be doubted whether, having regard to that historical context, its position in the Act and its section heading,^[23] s.69 was intended to confer on the Court of Appeal any appellate jurisdiction not formerly possessed by the Full Court or the Court of Criminal Appeal.  Nor is there anything in the explanatory note to the Bill for that Act or in anything said by the Premier on its introduction into Parliament which indicates any such intention.

But I think it is unnecessary here to explore that question further.  The statutory context, to which I have already referred, with respect to proceedings on indictment remained unchanged by the Supreme Court of Queensland Act 1991.  I would therefore conclude that, whatever effect these provisions may have upon the jurisdiction of this Court in respects other than appeals against judgments or orders made in proceedings on indictment, they were not intended to enlarge the rights of appeal, conferred by Chapter 67 of the Criminal Code, from judgments or orders made in such proceedings.^[24]

The applications are therefore incompetent and should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4487 of 1997.

Brisbane

Before Davies J.A.

Pincus J.A.

Shepherdson J.

[R v. Lowrie]

THE QUEEN

v.

KERRY CATHERINE LOWRIE

(Applicant)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 2 December 1997

These are applications for leave to appeal in a criminal matter.  The notice of motion seeks leave to appeal in relation to three decisions.  The first is one of Dowsett J on 22 March 1996, described in the notice of motion as being "that the Appellant not be arraigned on an indictment for accessory after the fact of murder".  The second and third are said to have been made by White J on 5 March 1997, being a decision "that the Crown have leave to have the indictment for accessory after the fact returned to enter a nolle prosequi and to present a new indictment for murder" and a decision "not to stay or quash the indictment for murder".

On 8 July 1995 the applicant was charged with having murdered Grace Madonna Heathcote and with other offences, and at that time one Kerri Ross was charged with having been an accessory after the fact to the murder.  On 20 October 1995 the applicant and Kerri Ross were committed for trial in respect of those charges.  On 22 March 1996, before Dowsett J, an indictment was presented against the applicant charging her with being an accessory after the fact of murder; there was another count which requires no further mention.  There was some discussion before Dowsett J as to whether or not the applicant could be dealt with in respect of the charge of being an accessory after the fact, when the principal offender had not been tried.  Reference was made to Rowley (1948) 32 Crim.App.R. 147, in which it was held that a plea of guilty from a person charged with being an accessory after the fact could not be accepted until it had been determined whether or not the principal offender was guilty.  The basis of the decision was that if (as in Rowley) the principal offender was acquitted, the entry of a conviction against the accessory after the fact would be inconsistent with that.  No reference was made, before Dowsett J, to the provisions of s. 569 of the Criminal Code which, in the form it bore at the relevant time, read:

"A person who counsels or procures another person to commit an offence, or who aids another person in committing an offence, or who becomes an accessory after the fact to an offence, may be charged in the same indictment with the principal offender, and may be tried with the principal offender or separately, or may be indicted and tried separately, whether the principal offender has or has not been convicted, or is or is not amenable to justice."

The question whether the principle of Rowley would, but for the terms of s. 569 of the Code, be applicable in this State need not be decided.  But I note that the basis upon which Rowley was decided cannot be reconciled with Darby (1982) 148 C.L.R. 668, relating to the analogous position of conspirators;  that is authority for the proposition that it is possible to have a conviction of one of the alleged co‑conspirators co-existing with an acquittal of the other, "unless in all of the circumstances of the case his conviction is inconsistent with the acquittal of the other person".  Darby was applied in King (1986) 161 C.L.R. 423, involving a principal and accessory indicted together for murder.  I refer also, in this connection, to Shannon [1975] A.C. 717, to Hart, Cuzzo and Smith [1980] Qd.R. 259 and to Deane (1996) 88 A.Crim.R. at 36.

Relying, it appears, upon Rowley which is, with respect, erroneously referred to in the standard text as an authority on s. 569, Dowsett J intimated that the applicant’s plea should not be dealt with and the matter should be stood over.  The principle of Rowley is inapplicable in this State;  to put that another way, s. 569 makes clear that a record which discloses that the principal offender has been acquitted and the person charged with being an accessory after the fact convicted is not inconsistent with itself, nor does that situation produce the result that "the only course . . . is to quash the conviction";  to use the expression which is to be found in  Rowley.  Any question of inconsistency between verdicts in a case of this sort, where one accused is charged as a principal and the other as accessory after the fact, must be dealt with without regard to what was said in Rowley.

It seems clear that, assuming there were jurisdiction to do so, it would not be appropriate to grant leave to appeal against the decision of Dowsett J, which was simply to stand the case over.  That course was not opposed by counsel for the applicant, nor was the decision, in itself, damaging to the applicant’s interests.  It was what happened subsequently which is the real subject of complaint.  On 2 July 1996, at the hearing of committal proceedings in relation to a charge against Kerri Ross of having murdered Grace Madonna Heathcote, the applicant was called to give evidence on behalf of the prosecution, but, having been given a warning about her right not to incriminate herself, she claimed privilege and gave no further evidence.  Subsequently the prosecution decided not to offer any indemnity to her and they suggested that she should give evidence and then see whether the charge against her was reduced to manslaughter.

On 28 February 1997, White J was informed that an indictment had been prepared charging the applicant with murder.  After some discussion, the matter came before White J again on 3 March 1997, when an application was made on behalf of the Crown for the return of the indictment charging the applicant with being an accessory after the fact of murder, with a view to presenting the fresh indictment charging murder.  White J, on 5 March 1997, decided to order the return of the indictment charging the applicant with being an accessory after the fact and that was done.  Thereupon the Crown presented a fresh indictment charging murder.

An application was made, at that stage, for a stay of proceedings or an order quashing the fresh indictment and White J refused that application.

Mrs Clare for the Crown did not dispute that the applicant has an arguable case on the merits, in relation to the attempt to challenge the decision of White J, but pointed out that this Court had before it only material from the applicant, the Crown not having filed any affidavits.  In the circumstances it is unnecessary to discuss the facts of the case further.   The question remains whether the Court has any jurisdiction to entertain the application for leave to appeal against the orders made by White J.  Neither counsel addressed this issue;  it is one of some difficulty.

The appellate jurisdiction of this Court in relation to charges of indictable offences is at least primarily, if not exclusively, that set out in ch. 67 of the Code.  Section 668B requires this Court to determine as an appeal any question of law reserved under that section by the trial judge and s. 668C makes further provision with respect to that subject.  Section 668D permits appeals against conviction on questions of law; against conviction on other questions with leave or upon the trial judge’s certificate; and, with leave, against sentence.  Section 669A provides for appeals by the Attorney-General against sentence and also provides for determination by this Court of certain points of law.  By an amendment made by s. 119 of the Criminal Law Amendment Act 1997, s. 669A now provides, additionally, for an appeal by the Attorney-General "against an order staying proceedings or further proceedings on an indictment".  The same amending Act, by s. 108, inserted a new s. 592A into the Criminal Code providing for pre-trial directions and rulings, including directions or rulings in relation to the quashing or staying of an indictment.  Section 592A(4) says that:

"A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence."

The 1997 Act cannot have been intended to alter, retrospectively, any right of appeal subsisting at the date of its passage;  such a right is a matter of substance and not mere procedure:  The Australian Coal & Shale Employees’ Federation v. Aberfield Coal Mining Co. Ltd. (1942) 66 C.L.R. 161.  The question is whether, prior to the 1997 Act, there was a right of appeal to this Court against a decision refusing a stay or refusing to quash an indictment.  Putting the question more generally, it is whether there was a right of appeal from orders of the Supreme Court made in an interlocutory way in criminal matters.

It is, as it seems to me, curious that this is still a debatable question.  In R v. Foster;  ex parte Gillies [1937] St.R.Qd. 67, the appellants were adjudged guilty of contempt of the Supreme Court and fined;  they sought to appeal to the Full Court and a preliminary objection to the competency of the appeal was overruled, by a majority.  The contention that no appeal lay, which was accepted by the Chief Justice, who dissented, was based on the proposition that contempt proceedings are of a criminal nature.  The majority held that there was a right of appeal under s. 10 of the Judicature Act 1876, which read:

"An appeal shall lie to the Full Court from every order made by a judge in Court or Chambers except orders made in the exercise of such discretion as aforesaid."

The reference to discretion had to do with orders for costs.  Henchman J, who with Webb J formed the majority, appeared to treat the question as simply being whether s. 10 covered criminal causes or matters:  p. 91.  It is not at first sight easy to see how one can confine the reasoning of Foster to appeals in a particular species of criminal matter, namely contempt proceedings.

Foster was followed in R v. Queensland Television Ltd;  ex parte  Attorney-General [1983] 2 Qd.R. 648 at 657, and received some consideration in Ex Parte  Maher [1986] 1 Qd.R. 303.  That was an appeal by the Crown against a grant of bail pending an appeal.  It was argued, unsuccessfully, for the respondent that there was no right of appeal.  As to that, Kelly SPJ remarked at 304:

"The reasoning of the majority in R v. Foster;  ex parte  Gillies [1937] St.R.Qd. supports the view that the effect of the repeal of s. 19 of [the Judicature Act 1876] by the Supreme Court Act Amendment Act 1921 was to enlarge the scope of the operation of s. 10 so as to include an order made in a criminal cause or matter. . . " (emphasis added)

This suggests that Foster is authority for the view that the Full Court had jurisdiction under s. 10 of the Judicature Act 1876 to hear appeals "in a criminal cause or matter" and therefore that the decision was not confined to appeals against convictions for contempt;  see also per Thomas J at pp. 306, 307.

A different approach to the problem was made in Skase [1995] 2 Qd.R. 297, an attempt to appeal against the issue of a warrant of arrest, in the District Court.  It was contended that s. 9(1) of the Supreme Court of Queensland Act 1991 has the effect of conferring appellate jurisdiction in criminal matters;  it says:

"The Court has all jurisdiction that is necessary for the administration of justice in Queensland."

The argument was that the provision has the effect of giving this Court jurisdiction to hear appeals against any order, whether in a criminal matter or not, but the contention was, at least as to appeals from the District Court, rejected.  There is some discussion of Skase in Pettigrew [1997] 1 Qd.R. 601 at 614, 615.

There has been a number of decisions relating to the effect of the Western Australian provision corresponding to s. 10 of the Judicature Act 1976, the present day equivalent of which is s. 254 of the Supreme Court Act 1995 (Qld).  Section 58(1)(b) of the Supreme Court Act 1935 (WA) gave the Court jurisdiction to "hear and determine . . . appeals from a Judge . . . whether sitting in court or in chambers".  The original version of that provision was read down by the High Court in Riebe v. Riebe (1957) 98 C.L.R. 212, as being concerned only with the distribution of business in the Western Australian Supreme Court (220), but that conclusion depended upon a heading which has no counterpart in our Act.  The effect of the then current version of s. 58(1)(b), which had been amended so as to overcome the decision in Riebe v. Riebe, was considered by the Western Australian Supreme Court in Connell v. The Queen (No. 5) (1993) 10 W.A.R. 424.  The Court held that the provision gave no right of appeal from interlocutory orders made in the course of a criminal trial. That was decided principally on the basis, as I read the judgments, that the provisions of the Criminal Code were intended exhaustively to define the rights of appeal in respect of trials on indictment.  The Western Australian appellate provisions, contained in that State’s Code, are not identical with those in force in Queensland, but are sufficiently similar to make Connell at least a persuasive authority in this State.  The decision was followed in Carter (1994) 74 A.Crim.R. 300 in which an order refusing an application for a separate trial was held not to be a proper subject of appeal, other than by recourse to what was described as the "ex gratia jurisdiction", which cannot apply in the present case.

In Helmhout (1981) 5 A.Crim.R. 42, it was assumed that the Full Court of the Federal Court has jurisdiction to hear an appeal from a refusal, by the ACT Supreme Court, of a stay in a criminal proceeding and in Goia (1988) 81 A.L.R. 656 at 664, Miles J expressed the view that an order for a stay does not involve the determination "in a criminal cause or matter".  It does not appear to me that these decisions are of real assistance in resolving the present problem.  The difficulty, in my view, is to determine whether the effect given to s. 10 of the Judicature Act in Foster and in the two cases which have followed it can be confined to the subject matter of those decisions:  proceedings for contempt and orders in respect of bail.  It is not at first sight easy to see why it should not follow, if those three cases are correct, that this Court has jurisdiction to hear an appeal against any order made in the Supreme Court relating to a criminal matter;  I reiterate that the recent insertion of s. 592A(4) in the Code alters the position, as to matters falling within its scope.

The solution, in my opinion, so far as the present case is concerned, is to be found in the fact that none of the three Queensland cases on s. 10 of the Judicature Act to which I have referred (Foster, Queensland Television and Maher) was an appeal against an interlocutory order made in relation to a trial on indictment.  The two contempt cases are clearly outside that category; so is Maher, in which the order granting bail was made at a time when the trial was completed and an appeal was pending.

There is, as far as I have been able to discover, no authority holding that there is a right of appeal against an order of the Supreme Court made in an interlocutory way in relation to a trial on indictment.  It has always been assumed that no such appeal lies and, fortified by the views adopted in Connell, I have concluded that s. 254 of the Supreme Court Act 1995 (the present equivalent of s. 10 of the Judicature Act) should be read as if it excluded from its scope interlocutory orders made in respect of trials on indictment.  Since there is, in my opinion, no other provision which could give this Court jurisdiction to hear such appeals - i.e. no provision other than s. 254 - there is no such jurisdiction in respect of the orders of White J refusing to stay the proceedings or quash the indictment.  It follows that the applicant’s complaints about the course of proceedings to date can only be agitated on an appeal against conviction, if one ensues.

I would dismiss the applications.

IN THE  COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane Appeal No. 4487 of 1997

Before Davies JA

Pincus JA

Shepherdson J

[R. v. Lowrie]

THE QUEEN

v.

KERRY CATHERINE LOWRIE

(Applicant) Appellant

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 2 December 1997

I have read the separate reasons for judgment prepared by Pincus JA and Davies JA.  I do not agree with their Honours’ views that there is no jurisdiction to deal with the order made by White J on 5 March 1997 when she decided “not to stay or quash the indictment for murder”.  In my view this order was made by White J in exercising the Court’s inherent jurisdiction - an aspect to which I shall later return because of its importance in this case.  As to the two earlier orders made by White J, I agree that the appeals against them are incompetent and for reasons stated by Pincus JA.

I agree with Pincus JA’s views concerning the matter of Rowley (1948) 32 Crim. App.R 147.  I agree also that were there power to do so it would not be appropriate to grant leave to appeal against the order of Dowsett J made on 22 March 1996.

The principal issue with which my present reasons are concerned is whether there existed (before s.592A was introduced into the Criminal Code to operate on and from 1 July 1997) a right of appeal from a decision of the Supreme Court made on an application to stay an indictment on grounds of abuse of process.

There is a decision of this Court - The Queen v. Pettigrew [1997] 1 Qd.R 601 - which in my view suggests that s.8(1) of the Supreme Court of Queensland Act of 1991 confers on this Court jurisdiction to deal with the appeal against the refusal to stay.  In Pettigrew the applicant had sought an extension of time to apply for leave to appeal against sentences imposed on him in the District Court and in the Trial Division of the Supreme Court, leave to appeal, and that the appeals be allowed.  The applications in respect of the sentences imposed in the District Court were not pressed and were refused at a prior hearing of the Court of Appeal on 1 February 1996.  Leave to appeal from the sentences in the Trial Division had been refused by the Court of Appeal on a prior occasion and the order refusing leave had been entered.  The Court then had a threshold question whether there was power to grant the orders which were still sought.  Two of the members of this Court in Pettigrew - Pincus JA and Mackenzie J - held that where this Court had disposed of an application for leave to appeal against sentence on the basis of a misapprehension  as to the content of court orders previously made, s.8(1) of the Supreme Court of Queensland Act of 1991 conferred jurisdiction on this Court to reconsider the matter.

Section 8 relevantly provides:-

“Jurisdiction generally

8(1)The Court has all jurisdiction that is necessary for the administration of justice in Queensland”

Fitzgerald P, the other member of the Court in Pettigrew, did not decide this point but held (p 615) that whether or not the Supreme Court of Queensland Act of 1991 added substantially to the Court’s inherent jurisdiction, the Court has power to prevent injustice and that power clearly included power to set aside an interlocutory order refusing leave to appeal after that order had been perfected when the interlocutory order was based upon a factual misapprehension, shared by the parties and the Court and derived from ambiguity in the order of a lower court.

Pettigrew is authority that in certain circumstances s.8(1) can be the source of this Court’s jurisdiction to entertain an application for leave to appeal.

The Supreme Court of Queensland Act of 1991 contains a number of provisions with respect to the Supreme Court of Queensland’s appellate and other jurisdiction.  Section 29 provides:-

“Jurisdiction and Powers

29.(1)Subject to this Act, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine.

2. The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act.
3. The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the Court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act.”

“Full Court” is defined to mean the Full Court of the Supreme Court and includes the Supreme Court sitting as the Court of Criminal Appeal and the Court as a court consisting of two or more judges.

Section 69.(1) which appears in “PART 6 - APPEALS TO COURT OF APPEAL” commences:-

“69.(1)Subject to this and any other Act, an appeal lies to the Court of Appeal from -

1. any judgment or order of the Court in the Trial Division ... .”

The Criminal Code of Queensland confers on the Court of Appeal jurisdiction to deal with appeals under ch.67 of the Criminal Code.  In that chapter “Court” means the Court of Appeal (s.668(1)) and “appellant” includes a person who has been convicted or desires to appeal under that chapter.  The Criminal Code provides no authority for the present application for leave to appeal.

For historical reasons, I note that s.668A of the Criminal Code was repealed by the Supreme Court of Queensland Act of 1991 (Act No. 68 of 1991) (see s.111 and schedule 2).  That repealed section had established the Court of Criminal Appeal.

Before I go further I should say, in reference to s.8(1) of the Supreme Court of Queensland Act of 1991 that “Court” in that sub-section means the Supreme Court of Queensland (see s.2 of the Act). By sub-s.16(1) the Court was divided into:-

1. the office of the Chief Justice; and
2. two divisions, namely, the Court of Appeal and the Trial Division

Thus the Court of Appeal is but one of the two divisions of the Supreme Court of Queensland specified in sub-s.16(1)(b).

Against these statutory references I return to Pettigrew.

The judgments in Pettigrew and especially the reasons for judgment of the President show clear references to the existence of a superior court’s inherent jurisdiction.  In my view the aspect of the Court’s inherent jurisdiction is important in the resolution of the matter presently before this Court.

As Fitzgerald P pointed out in Pettigrew the ambit of the inherent jurisdiction of a superior court has never been exhaustively described (p 610).  His Honour continued:-

“the modern trend is towards an acceptance that power exists to do what is necessary for the court ‘to fulfill its judicial functions in the administration of justice’ and ‘prevent any obstruction or interference with the administration of justice’.”

Later in his reasons for judgment Fitzgerald P said:-

“. . . reliance on s. 8(1) of the 1991Act does not seem to me essential in order to find a satisfactory solution to the present case.”  (p 613)

In Pettigrew the ratio of the case is that s.8(1) provided this Court’s jurisdiction to deal with the matters then before it.  With respect, such reliance was not necessary to justify the conclusion reached.  I respectfully agree with the views of the President.  Indeed, a reading of the reasons for judgment of the other two members of the Court leads me to conclude that there was really no need to rely on s.8(1) - rather it seems to me they relied on the Court’s inherent jurisdiction to prevent obstruction or interference with the course of justice.  It may well be that s.8(1) does in a broad way define the inherent jurisdiction of the Supreme Court of Queensland (including all divisions stated in s.16) but on that, I express no final view.  Certainly, in Pettigrew Pincus JA and Mackenzie J decided that s.8(1) provided the statutory authority for this Court to entertain the application before it.

In Grierson v The King (1938) 60 CLR 431 Dixon J (with whose reasons McTiernan J agreed) when speaking of the relevant New South Wales Act said (at p 435):-

“It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources.  It defines the grounds, prescribes the procedure and states the duty of the court.  The statute deals with criminal appeals  rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure  which they must observe.  It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court  to extend the period except where the sentence is capital.  The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed.  The determination of an appeal is equally definitive, and a conviction unappealed is equally final.  No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.  Appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute.”

In Pettigrew, Fitzgerald P, after referring to the above extracts from Grierson (and others) said (at p 606):-

“And the jurisdiction and powers of this Court under the provisions of the Criminal Code which are presently material (see ss.668D, 671, 672A) are not significantly different from those of the New South Wales Court of Criminal Appeal which were discussed in Grierson which is, of course binding on this Court.”

I have mentioned Grierson because it makes clear that the jurisdiction of this Court’s appellate power in criminal cases is derived from statute and that appeal is not a common law remedy.

The application before White J was primarily to stay or quash the indictment for murder.  Such application sought that White J exercise the inherent jurisdiction of the Supreme Court of Queensland - a superior court.

In Williams v. Spautz (1992) 174 CLR 509 the High Court of Australia considered the jurisdiction to grant a permanent stay for abuse of process.  At p.518 Mason CJ, Dawson, Toohey and McHugh JJ said:-

“It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process.”

In a footnote to that statement their Honours, after citing Clyne v. New South Wales Bar Association (1960) 104 CLR 186 at 201; Barton v. The Queen (1980) 147 CLR 75 at pp.96, 107, 116 and Jago re: District Court (NSW) (1989) 168 CLR 23 said:-

“Although the term ‘inherent jurisdiction’ has acquired common usage in the present context, the question is strictly one of the power of a court to stay proceedings.  That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings.”

In their joint judgment (still at p.518) the above 4 members of the High Court said:-

“The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair.”

There can be no doubt that White J was called on to exercise this jurisdiction.  She exercised it against the appellant.  Thus, White J who was sitting in the Trial Division made the order from which appeal is brought.  In my view a right of appeal to this Court lay from that order (s.69(1) Supreme Court of Queensland Act of 1991).

I add a reference to Director of Public Prosecutions (Queensland) v. Wentworth (Appeal No.4118 of 1996 - judgment delivered 10.09.1996) - it is mentioned in footnote 24 in the reasons of Davies JA.

This was a case relied on by Ms Dick counsel for the appellant.  There a judge of the Trial Division of this Court had stayed a second indictment against Wentworth.  Wentworth had already pleaded guilty to a number of charges and the sentencing process was en train but not completed at the time the second indictment was presented.

The Director appealed to this Court (before sentencing concluded) - there was no contest as to the trial judge’s jurisdiction to stay - the appeal was on the basis that the discretion to stay was wrongly exercised.

This Court’s judgment did not discuss the matter of its jurisdiction to entertain the appeal - it seems to have assumed that it did have that jurisdiction.

I mention also Drozd and Director of Public Prosecutions (Appeal No.10 of 1993) - the second case mentioned in footnote 24 in the reasons of Davies JA - another case where this Court entertained an appeal against a decision of a judge of the Trial Division of this Court refusing to stay an indictment.  The applicant had sought a stay as a means of achieving the result that two proposed additional Crown witnesses should be cross-examined in further committal proceedings.

It is true that the matter of this Court’s jurisdiction to entertain the appeal is not mentioned in the judgments of the members of this Court.

Nevertheless Wentworth and Drozd are two cases where this Court has heard and decided appeals against decisions of a judge of the Trial Division who in one case stayed a second indictment and in the other case declined to stay proceedings on an indictment.

The High Court in the footnote to Williams v. Spautz to which I have referred has gone to the trouble of pointing out that in a case such as the present the question is strictly one of the power of a court to stay proceedings.  In that same footnote it has cited three of its earlier authorities. 

I consider it important to bear in mind the role of the court when called on to exercise its power to stay proceedings.

In Connelly and Director of Public Prosecutions (1964) AC 1254; Lord Devlin dealt with a submission by the Solicitor-General that the danger of abuse of a court’s process is a matter for the Crown.  He said ((1964) AC at p.1354):-

“But in his submission the danger of abuse is a matter for the Crown; the Crown itself may be trusted not to abuse its powers and if a private prosecutor is abusing his, the Attorney-General can interfere by means of a nolle prosequi.

The fact that the Crown has, as is to be expected, and that private prosecutors have (as is also to be expected, for they are usually public authorities) generally behaved with great propriety in the conduct of prosecutions, has up till now avoided the need for any consideration of this point.  Now that it emerges, it is seen to be one of great constitutional importance.  Are the courts to rely on the Executive to protect their process from abuse?  Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them?  To questions of this sort there is only one possible answer.  The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.”

This passage emphasises the role of the court on an application to stay an indictment for abuse of process.  Any court dealing with such an application stands squarely between the Executive and the citizen accused and the latter relies on the court to discharge what Lord Devlin called its “unescapable duty to secure fair treatment” for him or her with respect to those who think otherwise.

I find a decision that this Court which in most cases is the ultimate court of appeal in Queensland has no power to entertain before trial on indictment an appeal by an accused from a refusal by a judge of the Trial Division to stay an indictment for alleged abuse of process, is both very surprising and unacceptable.

If no such appeal lies it follows that the accused person will be obliged to undergo trial (perhaps lengthy and costly) on the indictment (the stay of which has been refused) and if convicted may then appeal to this Court (which has undoubted jurisdiction to entertain such appeal) with one of the grounds of appeal being that the learned trial judge wrongly refused or dismissed the application to stay.  Of course if not convicted and the learned trial judge wrongly refused the stay the accused will needlessly have endured a trial and incurred expense, possibly very considerable.

The reasons prepared by Pincus JA show His Honour’s concern with the effect of R v. Foster; ex parte Gillies (1937) St.R.Qd 67 and R v. Queensland Television Ltd; ex parte Attorney-General [1983] 2 Qd.R.648 which followed R v.  Foster and also ex parte Maher [1986] 1 Qd.R 303 and the interpretation Kelly SPJ in that case gave to R v Foster.

His Honour has distinguished these three cases by deciding that none of them was an appeal against an interlocutory order made in relation to a trial on indictment and pointing out that two of them were contempt cases and outside that category.  The third case, Maher concerned an order granting bail made after a trial had been completed and an appeal was pending.

In ex parte Maher bail had been granted under the Bail Act 1980 (as amended) and the heading to that Act read:-

“An Act to consolidate and amend the law relating to bail in or in connexion with criminal proceedings and for incidental and other purposes.”

In my view Maher concerned bail granted in or in connexion with criminal proceedings and for that reason ex parte Maher is relevant and should be followed in the present case.  I do not propose to repeat the extract from the judgment of Kelly SPJ quoted by Pincus JA.  I note that Moynihan J (as he then was) the third member of the Full Court in ex parte Maher, agreed that the Full Court had jurisdiction to deal with the appeal for the reasons given by Kelly SPJ and Thomas J.

With the greatest respect, I do not believe that the cases of Drozd and Wentworth can be dismissed on the ground that in each of those cases the question of this Court’s jurisdiction to entertain each of those appeals was not raised.  The matter of staying criminal proceedings for abuse of process has been highlighted in comparatively recent past years by a number of cases in the High Court of Australia.

The principles and relevant considerations have been stated by that court.  Add to those cases, the views of Lord Devlin as to the role of the court when hearing an application for such a stay (as I have earlier set out) and the importance of such applications becomes clear.

The law in this area, based as it is on the inherent jurisdiction of the court to which the application is made, is being developed by case law.  Case law particularly emanating from appellate courts produces precedent and Drozd and Wentworth are precedents in this Court which cannot now be ignored although it is true to say neither case dealt with the question of jurisdiction.

In my respectful view, each of these two decisions was heard and determined without the matter of this Court’s jurisdiction being raised because this Court appears to have assumed that jurisdiction was present.

Wentworth and Drozd support the view that there exists a right of appeal to this Court (in my view under s.69) from an order made by a judge of the Trial Division exercising or called on to exercise the court’s inherent jurisdiction to stay a criminal proceeding for abuse of process.

In Williams v. Spautz, the four members of the court continued (at p.518-9):-

“This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process.  That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.

However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them.  If a permanent stay is sought to prevent the accused from being subjected to an unfair trial,  it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed.  In other words the court must be satisfied that there are no other available means, such as directions to be given  by the trial judge, of bringing about a fair trial.  Jago was such a case.  Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.

If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped.  There are some policy considerations which support the view that the court should so satisfy itself.  It is a fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution.  It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it.  In the United States, great weight has been given to these factors (See Rosemont Enterprises Inc. v. Random House Inc. (1966), 261 F. Supp. 691, at pp.696-697.)

These factors have considerable force.  There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons.  But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances.

As Lord Scarman said in Reg. v. Sang [1980] AC 402, at p.455, every court is ‘in duty bound to protect itself’ against an abuse of its process.  In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings.  Richardson J. referred to them in Moevao v. Department of Labour [1980] 1 NZLR 464, at p.481,  in a passage which Mason C.J. quoted in Jago (1989) 168 CLR, at p.30.  The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike.  The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.  As Richardson J.  observed [1980] 1 NZLR., at p.482, the court grants a permanent stay:

‘in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law.  It may intervene in this way if it concludes ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression.’

Other objections to the exercising of the jurisdiction arising from the availability of other remedies in the form of contempt, malicious prosecution and the tort of collateral abuse of process have not prevailed ... .”

(The above underlining is mine.)

In the present case the material shows that the prosecution has changed its stance towards the applicant on different occasions.  Initially she was charged on indictment with murder and Ross was charged with being accessory after the fact to murder.  They had been so committed for trial before presentation of the indictment.  The sequence of events thereafter appears from the reasons for judgment of White J pronounced on 5 March 1997.  On 22 March 1996 an indictment was presented against the appellant charging her with one count of being an accessory after the fact to murder.  No plea was taken by Dowsett J on that day but the Crown entered a nolle prosequi on the earlier indictment charging the appellant with murder and charging Ross with being an accessory after the fact to murder.

Committal proceedings against Ross on a charge of murdering Heathcote occurred in July 1996.  The appellant gave evidence for the prosecution.  During her evidence in chief, at the instigation of the appellant’s solicitor, the Magistrate warned the appellant who then claimed privilege and was asked no more questions.

When the matter came before White J in 1997 the Crown sought return of the indictment charging the appellant with being an accessory after the fact to murder.  After argument, White J made the first of the orders of 5 March 1997 from which this appeal is brought.  In the course of her reasons on the application for a stay, White J dealt with matters said to amount to prejudice to the appellant, apart from the prejudice she will suffer if exposed once again to a murder charge.

Her Honour said that the real question was whether any unfairness accrued to the appellant by virtue of an understanding that she would only be charged with the lesser offence, that understanding apparently having existed from about 13 March 1996 to August 1996.  As I understand her reasons this question was to be answered in deciding whether such unfairness, if it existed would amount to an abuse of process resulting in an unfair trial.

As Her Honour said:-

“It then became clear that the prosecution would not offer any indemnity to Lowrie, and some indication was given to her legal advisers that her best prospects would be an acceptance of a plea to manslaughter.”

White J considered the limited evidence in chief given by the appellant at Ross’s committal and also the fact that in February 1996 she had given an extensive statement to police in the hope that the prosecution would accept a plea of guilty to manslaughter.  Her Honour correctly recognised that any evidence prejudicial to the accused flowing from the committal evidence and the February 1996 statement could be excluded by the trial judge.  Her Honour concluded,  correctly in my view, that the two orders on 5 March above set out should be made.  There was and is no justification to stay the indictment charging the appellant with murder.

It is now over 2 years since Grace Madonna Heathcote was allegedly murdered.  The citizenry of Cairns will wonder why the trial has taken so long to come to pass and there may well be a danger of “erosion of public confidence” in the manner in which the court’s processes are being used.

In my view, it is of the utmost importance that the Trial Division exercise its jurisdiction to try the appellant and Ross.

I would grant leave to appeal against the decision to refuse the stay and dismiss the appeal.