q % CATCHWORDS Court of Petty Sessions - respondent bv consent dealt with summarilv for an indictable offence - appeal to the Supreme Court of Australian Capital Territory said to be incompetent - consideration of relevant provisions of Ordinance in force at relevant time (note: pravisions of Ordinance since amended). Crimes Act 1900 (N.S.W.) in its application to A.C.T.. ss. 59. 477, Court of Petty Sessions Ordinance 1930 (as in force in 1983). ss. 590A, 92, 113 - 116, 207, 208. NETL WILLIAM GRAHAM v. RICHARD THOMAS NINNESS No. ACT GS of 1985 Coram: Shepvoard, Neaves and Miles JJ. Date : 12 March 1986 Place: Canberra ee epee ae ' et pee weer ge tls epee ee anes ee oy ee ae were ees ee cece coe, Bay wens PTE A Tt a IN_ THE FEDERAL COURT OF AUSTRALIA } ANISTRALIAN CAPITAL TERRITORY ; DISTRICT REGISTRY ) No, ACT G5 af 1985 GENERAL DIVISTON BETWEEN WEIL WILLIAM GRAHAM Appellant RICHARD THOMAS NINNESS Respondent JUDGES MAKING ORDER: Sheppard. Neaves and Miles JJ. DATE OF ORDER : 12 March 1986 WHERE ORDER MADE : Canberra MINUTES OF ORDER THE COUPT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pav the respondent's casts Fa] £ the appeal. NOTE: Settlement and entry of orders is dealt with in Order 346 of the Federal Court Pules. Beer teen See nee one ——— Se ee / a r 4 TN THE FEDERAL COURT OF ATISTRALTIA 3} AUSTRALIAN CAPITAL TERRITORY BISTRICT PEGISTRY } No. ACT G5 of 1985 GENERAL DIVISTON BETWEEN NEIn WILLTAM GRAHAM Appellant AND: PICHARD THOMAS NINNESS Respondent Bo CORAM: Sheppard. Neaves and Miles JJ. DATE : 12 March 1986 REASONS FOR JIDGMENT THE COURT: This is an appeal from a decision of fhe Supreme Court of the Australian Capital Territory {Gallop J.) in which it was held that it was competent for the respondent to appeal to that Court aqainst his conviction and sentence by the Court of 's Petty Sessions of che Terriforv an a charge of assault laid pursuant fo s. 59 of the Crimes Act, 1900 %(N.S.W.) in its application to the Australian Capital Territorv. ~ The apveal to this Court being against an interlocutory order that the apveal WAS competent, leave to apneal was necessarv. Noa apolication for leave had been made prior ta the commencement of the hearing of the appeal, Nevertheless. we acanted leave and the matter any we on ve ee ee we mere oe wee oe ae ite eaianen Serkan an proceeded accordinaly. =" Iv a fu y tg Tv > 1D As the notice of appeal to the Sipreme Court was f respondent on 10 Februarv 1983 following his conviction and sentence on the previous dav. it is necessarv to determine the auestion that arises on the appeal by reference toa the relevant Jeqislative provisions in force at that time. We refer in passing, however. to the Crimes (Amendment) Ordinance (No. 3) 1985 which repealed ss. 476, 477, 477A and 4798 of the Crimes Act and replaced them with new sections and to the Court of Petty Sessions (Amendment) Ordinance (No. 3) 1985 which effected amendments toss. 92 and 208 of the Court of Pettv Sessions Ordinance 1930. These provisions have put bevond doubt that an in appea] lies in a case such as the present but, of course. anlv a i Hd + n fo cases arising after the amendments came into force. perhaps unnecessary to say that the amending provisions are not af relevance ta the question of construction which confronts us. Section 59 of the Crimes Act has at all material times provided that whosoever assaults anv person. and thereby gecasions actual bodilv harm. shall be liable to imprisonment for five vears. An offence under s. 59 is an indictable offence. However. Part WI of the Court of Petty Sessions Ordinance 1930 ("fhe Ordinance") makes provision for the hearina of certain indictable offences ina summary wav by the Court of Petty m2 essions, That provision is found ins. 92 which. at th 1) aah! coh iene Eelostedetennat as a, v7 i o t Pu 3. 92. (¢1) Where the Court 18 of the opinion that the evidence for the prosecution has established a prima facie case against the accused person in respect of an indictable offence, the Court shall charge the accused person with such offence and - (i) aif it appears to the Court that the case may be properly dealt with summarilv, and if the offence is one which mav be dealt with summarily if the accused person consents to it being so dealt with and the accused person does sa consent: ed shall ask the accused person if he has anv cause bo show whv he should not be convicted or whv an order should not he made aqainst him and thereupon the Court shall proceed ta hear and determine the charde in the manner hereinafter provided for hearing and derermining an information: Provided that if the defendant does not admit Ehe truth of the charae, the depositions of the witnesses who dave evidence for Ehe prosecution shall be deemed Fo be evidence given on the hearina of the charde and thease witnesses. or anv of them, shall. 1f so required by the prosecution or the defendant. be called or recalled, as the case mav be, for examination ar cross-examination: a Ce esuant to s. 477 of the Crimes Act. an offence against s. 59 miaht be dealt with summarilv with the consent of the accused. In the It Ordina present case the respondent did so consent. is toa be observed that the words of s. 92(1)¢i) nee included the words. "the Court shall praceed of the fo hear ree emna ee oT peer ene en eens rory * ry = oa ny os ee pee een ee ee we ee we ee ee + ~f weer re 4. and determine the charge in the manner hereinafter provided for hearing and determining an information". Those provisions were to be found in Part VII of the Ordinance entitled. "PROCEEDINGS IN CASE OF OFFENCES PUNISHABLE SUMMARILY". The relevant sections of Part VII were ss. 113 - 116. It is wnnecessarv to refer to the detail of these provisions. The important thing to note is Hhat the vrocedure which the Court was to adopt when dealing summarilv with an offence which would otherwise have been tried on indictment was similar to the procedure it adopted shen hearing and determining an information for an offence which was anly punishable summarilv. The provisions of the Ordinance providing for an appeal from fhe Court of Pettv Sessions to the Supreme Court were at the relevant time to he found in Parc XI entitled, "PART XI - APPEALS TO THE SUPREME COURT". The relevant sections were ss. 207 and 208 which comprised Division 1 and part of Division 2 of Part XI. Those provisions, so far as they are relevant. were as follows:- "Division 1 - The Appellate Jurisdiction of the Supreme Court 207. (1) The appellate jurisdiction of the Supreme Court with respect to decisions of the Court of Petty Sessions under this Ordinance extends to the hearing and determination of the following appeals and no others, namelv: (a) appeals to which Division 2 of this Part applies: and (b>) appeals from decisions of the Court of Petty Sessions by wav of orders to review made in accordance with Division 3 of this Part. on ' ee ee em rere eee eee noo cer me ye aw ro yee pomcne - ? arte wy t etree corey ete eee 5. (2) Nothing in this Part limits the Operation of anv other Ordinance that makes provisions with respect ta the appellate jurisdiction of the Supreme Court. Division 2 - Appeals 208. (1) Each of the following appeals is an appeal to which this Division applies - (a) anappeal., by the person convicted, froma ecanviction for an offence dealt with by the Court of Petty Sessions under Part VII ar under section two hundred and fifty-five of this Ordinance: (b) an appeal. by the person against whom the order is made, from an order made in pursuance of section one hundred and thirteen or section one hundred and fourteen of this Ordinance in proceedinas dealt with hv the Court of Petty Sessions under Part VII: fc) an appeal from a sentence or penaltv imposed by the Court of Petty Sessions bv a person convicted of an offence dealt with bv that Court under section ninetv A&A or two hundred and fifty-five of this Ordinance or under Part VII, whether or not that person appeals against the conviction in respect of which the sentence or penalty was imposed: Nf the provisions of the Ordinance referred to in the ahove quoted paraaraphs of sub-sec. 208(1) it is only necessarv to refer to s. 90A of the Ordinance which is mentioned in para. (c). Sectian 90A provided in sub-sec. (1) that a person who appeared or was broucht before a Court of Petty Sessions charaged with an indictable offence. not being an offence punishable bv death or penal servitude for life. miaht at anv staqe of the proceedinas plead qauiltv to the charqe and. upon the accused person. so OT nti eer San eal py tee cern eee , 1a : z ye a foot ng pir wees pe pee, &. ct pleading quiltv, the Court should proceed in accordance with the succeeding provisions of the section. Paragraph 208(1)(c) of the Ordinance thus operated to confer a right of appeal. but against sentence onlv, upon a person who had pleaded quiltv to an indictable offence and been sentenced by fhe Court of Petty Sessions. Tk is now possible to state the matter tpon which the appellant relies in support of his submission that there was no eompetent appeal from the conviction to the Supreme Court. Because of the provisions of s. 207. there could be no appeal unless the matter fell within one of those specified in s. 208. Division 3. havina no application to the circumstances of the present case. The onlv relevant provision of s. 208 could he para. (1)(a) which provided for an appeal by the person convicted from a oconviction "for an offence dealt with bv the Court of Pattv Sessions under Part VII... of the Ordinance", The appellant's point is that these praceedinags were under Part VI. not Part VII of the Ordinance, with the consequence that there was no appeal. - In the submission of the respondent there was an appeal because, although 1t was Part VI of the Ordinance which enabled the matter to be heard summarilv before the Court of Pettv Sessions, the matter was heard. as was required bv s. 92, a section in Part VI. in the manner provided for hearind and determining an information, that is in accordance with the Hy mpimn wn ae ee we poe sae procedure provided for in ss. 113 - 116. That was a matter provided for ain Part VII and it fallowed that. within the lanquaqge used in para. 208(1)(a). the respondent was appealing from a conviction for an offence dealt with bv the Court of Pettv Sessions under Part VII af the Ordinance. That was the view which the learned primarv Judge adopted. Both parties referred to the lecislative historv of the provisions of ss. 207 and 208 of the Ordinance and it is necessarv to refer to that historv. Before doina so, however. it mav be noted in passina that it would seem strange if no appeal lav. Part VI enables certain indictable offences to be dealt with summarily, These offences. in the nature of things. are usuallv more serious than offences which are punishable onlv summarily. MNormallv,. the maximum penaltv for such offences. even where dealt with summarilv. will be qreater than it is for offences which mav onlv be dealt with summarilv. Undoubtediv fhere was an appeal against a conviction for an offence which might onlv be dealt with summarilv. It is difficult ta understand whv the legislature would not have intended that there be an appeal also in the case of an offence, in this case an assault, which was an indictable offence. Furthermore. if the appellant's araument be right, there was not onlv no appeal against conviction: there was no appeal aqainst sentence. Aaain this would seem a strange result, particularly as there would have been an appeal against sentence ina case where a plea of auiltv had been entered: s. 90A and para. 208(1)(c) of the — , voyay y lees, a: Bay | ccnenemeepttenns tet pacar denen aaamantaanant aioe ac aumaamnnar ademas' ieeee taseee oe a a icateeaiicieaac aie cahantei sana teenie many q pen oe Ordinance earlier referred to. If the matter went to trial by indictment and there were a conviction. an appeal would lie from the Supreme Court to this Court both in relation to the conviction and sentence. It is true that the arounds of appeal would be limited and the matter would not be in the nature of a rehearina. That is because the matter would have been tried bv jurv. Nevertheless there are substantial appeal ridghts aqiven a person convicted of a crime on indictment. Thus it would appear. if the appellant's arqument be viaht, that. under the legislation in question. there could have been no appeal in the case of an indictable offence dealt with summarily either against conviction or sentence. but there was an appeal if the offence were dealt with on indictment or were not an indictable offence and were dealt with summarilv bv the Court of Pettv Sessions under Part VII of the Ordinance. Those considerations lead us to think that the appellant's arqument must be Looked at closelv. TJntil 1972 there could have been no doubt that an appeal lav to the Supreme Court from convictions and sentences imposed stmmarilv whether in respect of offences which miaht have been tried on indictment or offences which were summarv offences onlv. Turisdiction was oriainally conferred upon the Hidgh Court of Australia to entertain appeals from the Court of Pettv Sessions (Ordinances Nos. 10 and 21 of 1930). After the creation of the Supreme Court of the Australian Capital Territory, provision was — foo er epee ane . ™ 9, made for appeals from the Court of Pettv Sessions to that Court (Ordinance No. 28 of 1937). Substantial amendments were made to the Ordinance in 1972 (Ordinance No. 37 of 1972). Sections 207 and 208 then took the form relevant to this appeal. The learned primarv Judae has pointed ta the reason whv the 1972 amendment was thouaht necessary. In 1969 there were two decisions of the Supreme Court of the Australian Capital Territorv. Kellv _v. Russell (1969) 14 F.L.R. 255 (Fox J.) and Applebee v. R. (1969) 14 F.L.R,. 444 (Kerr J.). It was there held that a person who had pleaded quilty before a court of petty sessions might appeal against his conviction. and on the appeal insist that his quilt be established bv the respondent. In the second of the cases Kerr J. reiected a submission made on behalf of the Crown that. as the appellant had pleaded quiltv before the Court of Petty Sessions. he could not appeal aaainst his eqnviction in such a wav as to put the Crown to proof of his quilt. but could onlv appeal aaqainst the sentence imposed. It seems likelv that Part XI of the Ordinance was amended in 1972 in order to provide more specifically for the richts of appeal which canvicted persons were to have to the Supreme Court. Certainly the new provisions were very much more specific than were those which were in force when the two cases referred to were decided. Despite the specificity of the provisions. one would not readily infer, particularlv in the light of the leqislative history of the provision, that it was intended to take awav the wee me ee ene epee we . yey ee one uM oe watt et ee ine, eet eee SPA wae Se ee LO. cticht of appeal which had previouslv existed in cases such as the present. There is no reason apparent to us whv that should have been the leqislature's intention. Notwithstanding these considerations there are problems raised by the appellant's submissions which do provide difficulties for the respondent. These derive from the lanaquade ef the provision. In the submission of the appellant the effect of the use of the words in sub-sec. 92(1) of the Ordinance. "to hear and determine the charge in the manner hereinafter provided". was to import into Part VI the procedures set forth in Part VII so far as thev were applicable. But. in the submission of the appellant. such an importation did not make the offence one which was "dealt with ... under Part VII" within the meaning of para. 208(1)(a). The words. "in the manner ... orovided for »»-", must be qiven effect to. It was submitted that such a phrase was appropriate to bring into Part VI the provisions dealing with proceedings in cases of offences punishable summarilv. but not appropriate to describe a proceeding in which a person was charged with an indictable offence. but dealt with summarilv. as being dealt with under Part VII. In short it was the appellant's submission that the ordinary meaning of the lanauage used in sub-sec.92(1) was that the procedure provided for in Part VII was picked up and incorporated in Part VI. It followed, according to the submission, that the offence was not - dealt with under Part VII but under Part VI. Accordinalv. the appeal was an appeal against a conviction under Part VI and et Sr eens -7 a we wr - Tat ty therefore incompetent. The respondent approached the matter from a different direction. According to his submission, once the conditions of sub-s. 92(1) were met, the Court of Petty Sessions' function under the section was at an end and its further adjudication on Ehe case was pursuant to Part VII. There was no provision in Part VI providina for the procedures to be adopted on the further hearing except those which indicated the application of the appropriate provisions of Part VII. The respondent referred to the fact that he had given evidence before the Court of Pettv Sessions. There was no provision in Part VI enabling him to take that course. Clearly, according to the respondent's submission, he was exercising the riaht conferred on him in Part VII bv s. 114. In summary the respondent submitted that once the conditions of s. 92 were met. the further hearind took place. and could only take place. pursuant to Part VII. The learned primarv Judae preferred the respondent's submissions saving, "It seems to me to be normal in ordinarv lanauage to refer to such a person as havina been dealt with under Part VII". In aur opinion the competinda submissions of the parties on Che lancuace which is used demonstrate that the lanauage in question is ambiquous. The language is capable of sustaining either construction. althouch. if the matter were to be decided by considering the lanquaqge alone. we would be inclined to adopt Ehe construction contended for by the appellant. But there beina rot ote are peepee Fodeiieten & etedintied apr ree rm mee oe » tas fon 12. an ambiaquitv. one needs to look at matters such as the historv of the leaqislation, the purpose and intendment of the Ordinance and, most importantlv. to the question of whether one construction or the other will have an arbitrary or capricious effect. We have earlier alluded to the fact that the sustainina of the appellant's arqument would have some curious results. Firstlv. a person charged with an offence under s. 59 of the Crimes Act would have had an appeal aqainst conviction if the offence were tried on indictment but would not have had an appeal if the offence had been dealt with summarilv. Furthermore, he would have had an appeal against sentence if he had pleaded aquilty to Fhe offence. but no appeal aaainst sentence if he had been convicted after entering a plea of not auiltv. And a person charqed with an offence which miaght onlv have been dealt with summarily would have had an appeal because the matter had clearlv arisen under Part VII of the Ordinance. Yet a person charaed with a more serious offence such as assault occasioning actual bodilv harm under s. 59 of the Crimes Act would nak. There appears to us to be no legislative purpose or reason discernible in such a rasulk which would be highlv capricious. For those reasons we prefer the construction contended for bv the respondent and adopted bv his Honour. Before we conclude. we should mention that his Honour considered that the respondent was entitled to succeed on a around separate and independent of that relied upon before us. That around was not the subject of arqument before us. We have a rae Wo ent eee Ter tare we t> e » i L vo. i r 13. not. therefore, considered it and do not it. Tn the result the appeal is dismissed. pay the respondent's costs thereof. 1 certify that this ang the /2 express anv view upon The appellant is to Ppreced 2g pages are a true copy of the reasons for judgment herein of the Court theca 9 ' a, Asseclaze Bered /2 "YORCH/ (9786 er pore a er