IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 361 of 1997.

Brisbane

[Leavers v. Purcell]

IAN JOHN LEAVERS

v.

ZARINE LESLEY PURCELL

(Applicant)

Pincus J.A.

McPherson J.A.

Muir J.

Judgment delivered 10 February 1998

Separate reasons for judgment of each member of the Court;  all concurring as to the order made.

THE TWO DOCUMENTS FILED BY THE APPLICANT IN THIS COURT ON 22 SEPTEMBER 1997, ONE HEADED "NOTICE OF APPLICATION FOR LEAVE TO APPEAL" AND THE OTHER HEADED "NOTICE OF APPEAL OR APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION OR SENTENCE" ARE STRUCK OUT.

CATCHWORDS: Criminal Law - application for leave to appeal against convictions in Magistrates Court - applicant originally appealed to District Court where appeals were held incompetent - appeal instituted in Court of Appeal after repeal of Court of Appeal’s jurisdiction.

Courts Reform Amendment Act 1997 ss. 14, 15

Counsel:  Mr C Chowdhury for the respondent.

Applicant conducted her own case.

Solicitors:  Director of Public Prosecutions (Queensland) for the respondent.

Applicant conducted her own case.

Hearing date: 27 October 1997.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 10 February 1998

This is an application for leave to appeal against convictions in the Magistrates Court.  Two notices have been filed on this Court, both on the same date, and each refers to convictions of four counts of assault at the District Court held at Ipswich.  However, there were no convictions in the District Court;  the only order made by that court, dated 20 August 1997, was an order that a notice of appeal be struck out.  The fact that the relevant convictions were entered in the Magistrates Court also appears from what seem intended to be grounds of appeal, dated 18 September 1997 and signed by the appellant.  From those grounds it may be gathered that the appellant’s intention then was, not to challenge conviction on four assault charges, but on three only, being "the three charges I pleaded not guilty to".

These three charges of assault, in relation to which the persons assaulted were L T Marshall, M C Pickering and I J Leavers, were tried in the Magistrates Court at Ipswich on 19 May 1997 and at the conclusion of that trial the learned magistrate (MacCallum S.M.) convicted the appellant.  On the same occasion her Worship also dealt with three other charges against the applicant to all of which the applicant pleaded guilty;  they were charges of using insulting words to a police officer S. M. Beavis, obstructing the same police officer in the performance of her duties, and assaulting her.

All these charges arose out of events which occurred at William Street, Coal Falls on 20 January 1997, at the conclusion of which the applicant was arrested.  The learned magistrate grouped together the assault upon Snr Constable Leavers and that upon Mrs Pickering with the charges of obstruction and using insulting words and imposed a fine in relation to those four.  As to the remaining offences, namely the assaults upon Constables Marshall and Beavis, the magistrate grouped those together also, and imposed a suspended sentence.

On 30 May 1997 there was filed in the District Court a notice of appeal under s. 222 of the Justices Act 1886.  On the face of that document it was an appeal against an order made on 19 May 1997 at Ipswich by a magistrate, not identified in the document, whereby the applicant was given a suspended sentence.  That was the punishment imposed in respect of two of the six charges;  in relation to one of those two, the assault on Constable Beavis, the applicant as I have mentioned had pleaded guilty.  The grounds of appeal, as stated in the document received in the District Court on 30 May 1997, were:  "The magistrate made an error in law and in fact in convicted me".  The notice of appeal to the District Court is therefore unclear;  the reference to an error in convicting the applicant suggests that the notice related to one or more of the three cases in respect of which there was a contest about the appellant’s guilt.  They were the assaults on Constable Marshall, Mrs Pickering and Snr Constable Leavers;  but the punishment in the notice of appeal mentioned related to only one of those three charges. 

When the matter was heard in the District Court, on 20 August 1997, there was a discussion between the learned District Court judge and the appellant, in the course of which his Honour attempted to find out to what the defective notice of appeal was intended to relate.  The judge’s conclusion, which was I think tentative, was that the applicant wished to appeal against her conviction and sentence in respect of the assaults on Constable Marshall and Constable Beavis as well as against her conviction in respect of the assault upon Mrs Pickering.  The judge informed the applicant that he had no power to deal with appeals in relation to those matters and a little later, apparently by qualification of his Honour’s earlier statement, informed the applicant that appeals against the two assault convictions in respect of which a suspended sentence was ordered were incompetent and must be taken to the Court of Appeal.  His Honour struck out the notice of appeal to the District Court.

When the matter came on for hearing in this Court, the applicant was unrepresented, as she had been in the Magistrates Court and in the District Court;  however, the Court had assistance from Mr Chowdhury for the respondent.  Until 1 August 1997 when relevant parts of the Courts Reform Amendment Act 1997 ("the 1997 Amendment Act") were proclaimed to commence, this Court had jurisdiction under two statutory provisions to hear appeals from magistrates.  Under s. 209 of the Justices Act 1886 there was jurisdiction to hear appeals by way of order to review and under s. 673 of the Criminal Code there was jurisdiction to hear appeals in respect of summary convictions of indictable offences.  Both these provisions were repealed by the 1997 Amendment Act:  see ss. 61 and 14.

It seems clear that it was s. 673 which the learned District Court judge had in mind in discussing the question of jurisdiction, for the right of appeal given by that provision was made exclusive by subs. (2) of any other right of appeal conferred by the Justices Act 1886 "on persons aggrieved by summary convictions and sentences passed on such convictions".  By s. 15 of the 1997 Amendment Act, s. 14, which repealed s. 673 of the Criminal Code, applied if before August 1, 1997:

"(a) a person convicted summarily of an indictable offence started an appeal under section 673 as in force immediately before the commencement;  and

2. the appeal has not been finally decided."

Under s. 708(2) of the Criminal Code, inserted by the same provision (s. 15 of the 1997 Amendment Act), the "appeal may be dealt with as if the Courts Reform Amendment Act 1997, section 14 had not been enacted".

The new s. 708 of the Criminal Code makes it clear, in my view, that this Court retains jurisdiction under s. 673, despite its repeal, only in respect of appeals begun before 1 August 1997 and not finally decided on that date.  Proceedings were not begun in this Court in relation to the subject convictions until 19 September 1997 and this Court therefore has no jurisdiction in relation to the matters under s. 673 of the Criminal Code.  The other provision giving this Court jurisdiction to hear appeals from a magistrate, s. 209 of the Justices Act 1886, has as I have mentioned also been repealed and there is a similar, but slightly more elaborate, transitional provision relating to it:  see s. 68 of the Courts Reform Amendment Act 1997.   Since no relevant application for an order to review had been made before 1 August 1997 this Court has no jurisdiction in relation to these matters under s. 209 of the Justices Act. 

It follows that the notices filed by the applicant in this Court should be struck out.  The question arises whether any further steps should be taken.

As I have explained, it is not clear, on the face of the notice filed in the District Court, to what proceeding it was intended to relate.  It is unnecessary, however, to decide whether the notice of appeal has as wide a scope as the appellant, in argument before the learned District Court judge, attempted to ascribe to it, for it must cover at least the two assaults in respect of which a suspended sentence was imposed, those being the assaults on Constables Marshall and Beavis;  whether it also covered the third assault does not matter.  Both these charges were brought under s. 340(b) of the Criminal Code;  the offences created by that section are misdemeanours and are therefore indictable offences:  s. 3(3) of the Code.  Under s. 341 of the Code, any person who unlawfully assaults another may, subject to the provisions of Ch. 31 of the Code, be summarily convicted before two justices.  That power may by virtue of s. 30 of the Justices Act 1886, be exercised by a stipendiary magistrate.

The jurisdiction of the District Court to hear appeals from magistrates (and justices) in criminal matters has been, indirectly, enlarged by the repeal of s. 673 of the Criminal Code to which I have referred to above.  Section 673(2) made the right of appeal conferred by the section exclusive of any other right of appeal conferred by the Justices Act "on persons aggrieved by summary convictions and sentences passed on such convictions".  So prior to 1 August 1997 the right of appeal given by s. 222 of the Justices Act 1886 was excluded to the extent indicated by s. 673(2) of the Code.  Since 1 August 1997 there has been no such exclusion.  The notice of appeal to the District Court to which I have referred above was a nullity because at its date (30 May 1997) the exclusory provision still applied.  It follows that the learned District Court judge was right to strike out the notice of appeal to that court, the appeal having been instituted at a time when the District Court had no relevant jurisdiction.  

It will be noted that s. 222 of the Justices Act 1886 gives a right of appeal subject to the condition that the notice of appeal be filed within 28 days after the decision sought to be appealed against.  There is a possibility of enlarging the time for appeal, but that is subject to the applicant being able to show inability "through no fault of his or her own to serve notice as aforesaid";  the power to enlarge time is subject to compliance with that condition:  G.S.A. Industries (Aust) Pty Ltd v. Tully [1995] 1 Qd.R. 607 at 610.

One other aspect which should be mentioned is that the right of appeal given under s. 222 relates to "any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty";  the right to hear such appeal is not restricted to convictions of simple offences, but extends to appeals relating to indictable offences.  With respect to the convictions here in question, I have noted that the charges (of assault) followed upon arrest and there was no written complaint.  Nevertheless, it seems clear from s. 42(2) of the Justices Act 1886 that particulars of the charge entered on the bench charge sheet are taken to constitute a complaint;  such particulars were entered in respect of the relevant charges here.

The peculiarity of the present case is that at the time the notice of appeal was filed in the District Court that court had no jurisdiction to hear the appeal and the notice of appeal was therefore a nullity;  by the time the matter came on for hearing in the District Court it had acquired jurisdiction, but there was no valid notice of appeal before it.  I have been unable to discern any principle in accordance with which the District Court would be empowered to treat the null notice of appeal as good.  It is I suppose possible that the applicant might think it worthwhile to seek an extension of time from a District Court judge to file a further notice of appeal, but it  could be inappropriate to express a view as to whether that would be an advisable course, or whether such an application would have any chance of success.

In the circumstances, then, I would order that the two documents filed by the applicant in this Court on 22 September 1997, one headed "Notice of Application for Leave to Appeal" and the other headed "Notice of Appeal or Application for Leave to Appeal against Conviction or Sentence" be struck out.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 10 February 1998

In this matter I have had the advantage of reading the reasons of Pincus J.A. and Muir J.  Briefly stated, the sequence of events is that the offences in respect of which the applicant was convicted were committed on 20 January 1997.  The offences were dealt with in the magistrates court at Ipswich on 19 May 1997, which is when sentence was imposed.  On 30 May 1997 the applicant lodged a notice of appeal against one, or possibly more, of those convictions.  There was a hearing in the District Court on 20 August 1997, when the appeal was struck out.  In doing that, the learned judge of District Courts explained that he had no power to deal with appeals in relation to those matters.

In the meantime relevant provisions of the Courts Reform Amendments Act 1997 had come into force.  They are set out in the reasons for judgment of the other members of this Court.  The effect of s. 14 of that Act is to remove the jurisdiction of the Court of Appeal under s. 673 of the Criminal Code to hear an appeal from summary conviction of an offence of this kind, but to do so subject to the transitional provision in s. 15 of that Act.  The operation of that saving provision is, however, confined to an appeal that was “started under s. 673” before 1 August 1997.

The question therefore is whether the matter before us constitutes an appeal started under s. 673 prior to that date.  The application for leave to appeal and accompanying notice of appeal to this Court are dated 14 September 1997, which is after and not before the date in question. The notice of appeal on which the matter came before the District Court on 20 August 1997 is dated 30 May 1997; but it is on its face plainly directed to a judge of the District Court.  It is true that the body of the document states that the appeal is to a Judge of the Supreme Court (rather than the Court of Appeal); but the title heading to the notice has been amended so as to cross out the word “Supreme” Court and insert the word “District” Court, and it was to a judge of District Courts that the appeal was in fact taken and by whom it was determined on 20 August 1977 by striking it out.

In those circumstances, it seems to me that there is no escaping the conclusion of Pincus J.A. that there never was to this Court an appeal “under s. 673” that could in any sense be said to have been “started” before 1 August 1997.

It follows that for the reasons his Honour has given, I agree with the order proposed by Pincus J.A.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 10 February 1998

I have had the opportunity of reading the reasons for judgment in this matter of Pincus J.A.  I agree with the order he proposes and generally with his reasons except that I am unable to conclude that the applicant’s rights of application or appeal to the Supreme Court under s. 209 of the Justices Act 1886 and s. 673 of the Criminal Code were extinguished by the repeal of those provisions and the enactment of s. 273 of the Justices Act and s. 708 of the Criminal Code.

The applicant’s convictions in the Magistrates Court were recorded on 19 May 1997.  She then had a right of appeal to the Supreme Court, under s. 209 of the Justices Act 1886, by way of  order to review and under s. 673 of the Criminal Code.  Section 209(1) of the former Act required applications for orders to review to be made within 28 days from the making of the conviction the subject of the application.  Section 671(1) of the Criminal Code provides:

“Any person convicted 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 the prescribed manner, within 28 days of the date of such conviction or sentence.

. . .

3. The time within which notice of appeal . . may be given . . may be extended at any time by the Court.”

On 30 May 1997 the applicant filed a notice of appeal, purportedly under s. 222 of the Justices Act 1886, in the District Court.  That court then had no jurisdiction to entertain the appeal.  The sections in the Courts Reform Amendment Act 1997 (“the Amendment Act”), which effected the repeal of s. 209 of the Justices Act and s. 673 of the Criminal Code came into force on August 1997.  By that time the appeal periods prescribed by both repealed provisions had expired.

Section 14 of the Amendment Act effected the repeal of s. 673.  Section 15 of the Amendment Act inserted the following new transitional provision into the Code:

“708.(1)  This section applies if, before the commencement of the Courts Reform Amendment Act 1997, section 14:

1. a person convicted summarily of an indictable offence started an appeal under section 673 as in force immediately before the commencement; and

2. the appeal has not been finally decided.

(2)The appeal may be dealt with as if the Courts Reform Amendment Act 1997, section 14 had not been enacted.”

Section 68 of the Amendment Act provides for the insertion in the Justices Act 1886 of a transitional provision (s. 273) similar in effect to the new s. 708 of the Criminal Code. 

The effect of the repeal of s. 673 on 1 August 1997 was to confer on the District Court the jurisdiction to hear appeals pursuant to s. 222 of the Justices Act 1886.  That jurisdiction however did not exist at the time the applicant commenced her appeal on 30 May 1997. 

I will put aside, for the moment, the question of the effect of the expiration of the time limited for appeal under ss. 209 of the Justices Act and 673 of the Criminal Code.  Section 708(1) expressly preserves the rights of appellants who had commenced appeals under s. 673 immediately before 1 August 1997.  It says nothing expressly about the rights of persons who had an unexercised right of appeal under s. 673 immediately before 1 August 1997.  On one view of the section, the rights of such persons have been excluded by necessary implication as s. 708 refers to appeals which have been commenced and not to any existing but unexercised right of appeal.

Before reaching a conclusion on this question of construction, it is desirable to consider the common law principles applicable to extinguishment of substantive rights by legislative enactment and the relevant provisions of the Acts Interpretation Act 1954.  In re Athlumney: Ex parte Wilson [1898] 2 Q.B. 547 at 551-552 Wright J. said:–

“Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.  If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”

That passage was cited with approval by Gibbs J. (as he then was) in Mathieson v. Burton (1971) 124 CLR 1 at 32 and by Brennan J. (as he then was) in Carr v. Finance Corporation of Australia Ltd [No. 2] (1982) 150 C.L.R. 139 at 158.  It is well established that a right to appeal from a determination of a lower court is “an existing right” and not a mere “matter of procedure” for the purposes of the application of the above principle, see Colonial Sugar Refining Company v. Irving [1905] A.C. 369 at 372 (PC);  Australian Coal and Shale Employees’ Federation v. Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 185;  R v. McKeown [1940] St.R.Qd. 202 and O'Connor v. The Argus and Australasian Ltd [1957] V.R. 374.  At 381 O'Bryan J. with whose reasons Herring C.J. agreed, stated:

“There is strong authority for the proposition that the right of appeal to a particular court is a valuable right and not a mere matter of procedure and that a statute taking away such right should not be read as having retrospective operation unless it expressly says so or it so appears by necessary intendment.”

His Honour then quoted from a passage from the judgment of their Lordships in Colonial Sugar Refining Company v. Irving at 372 which included the following:–

“And therefore the only question is: Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure?  It seems to their Lordships that the question does not admit of doubt.  To provide a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.  In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal.  In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.”

His Honour then observed:

“That is strong language, and as far as I know the passage has ever since been accepted as a correct statement of statutory interpretation.”

In Sunskill Investments Pty Ltd v. Townsville Office Services Pty Ltd [1991] 2 Qd.R. 210 McPherson J. (as he then was) observed at 218:

“A right of appeal that exists when proceedings are instituted is considered as inhering in the proceedings from commencement of the action, and so will not be affected by subsequent statutory restriction unless it is plain that the restriction is intended to have retrospective application.  Colonial Sugar Refining Co. v. Irving is itself an illustration of that principle.”

Demack J. expressed agreement with the reasons of McPherson J. 

The common law principles discussed above also find expression in s. 20 of the Acts Interpretation Act 1954.  It relevantly provides:

“(1) The repeal, amendment or expiry of an Act or a provision of an Act does not–

. . .

3. affect a right, privilege or liability acquired, accrued or incurred under the Act or provision; or

. . .

5. affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).

3. The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced penalty and the imposed, as if the Act or provision had not been repealed or amended or had not expired.”

In Carr v. Finance Corporation of Australia Ltd [No. 2]  it was observed in the joint judgment at 151:

“The common law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right.  If it were otherwise, the essential justice of the rule would be eroded.”

A right of appeal in an existing matter is a “right” for the purposes of s. 20 and not a mere “power to take advantage of an enactment”, cf. Mathieson v. Burton (1971) 124 CLR 1 at 23;  Robertson v. City of Nunawading [1973] V.R. 819 and Esber v. The Commonwealth (1992) 174 C.L.R. 430 at 440.

The first question which needs to be resolved is whether, having regard to the wording of s. 20 and the above strong expressions of principle, s. 708 of the Criminal Code should be taken as having implicity abolished rights of appeal to the Supreme Court conferred by s. 673 if those rights were not exercised by 1 August 1997.

The obvious argument in favour of implied repeal is the espressio unius one.  The rights of an appellant who had already commenced an appeal prior to the repeal of s. 673 are clearly preserved by s. 20 of the Acts Interpretation Act.  They would have continued in existence even without the benefit of a provision such as s. 20.  It seems curious that the legislature would expressly preserve a right which obviously required no preservation but say nothing about rights which were, arguably, less obvious if it was intended that the latter be preserved also.

On the other hand, it is possible that the rights of persons who had not instituted appeals by 1 August were overlooked.  If such rights were adverted to, it may have been considered that such persons would proceed to exercise a right of appeal to the District Court.  Another possibility is that section was inserted out of an abundance of caution.

In Wentworth v. N.S.W. Bar Association (1992) 176 CLR 239 Deane, Dawson, Toohey and Gaudron JJ. said at 252:

“There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication.  They include important common law rights, procedural and other safeguards of individual rights and functions and the jurisdiction of superior courts.”

See also Bropho v. Western Australia (1990) 171 CLR 1 at 17-18.

Not without hesitation, I have come to the conclusion that, having regard to the provisions of s. 20 and the strongly entrenched and oft stated principle against derogation from vested rights without a clearly stated statutory intention, an intention to divest existing rights of appeal to the Supreme Court is not to be found in s. 708 by necessary implication.

The above discussion is generally applicable to the repeal of s. 209 of the Justices Act.

It is now necessary to consider whether the applicant, having failed to exercise her rights of appeal to the Supreme Court within the terms prescribed for appeals, lost her rights in that regard or whether the Court retains power to extend time.

Once the appeal periods expired the applicant’s rights, in my view, lost the character of substantive rights protected by s. 20 or the above common law principles.  The applicant was then left with something akin to “a power to take advantage of an enactment”, cf. Esber at 440.  Such a right was not preserved by s. 20 or by application of common law principles.