Bond v The Queen P57/1999 [2000] HCATrans 10 (4 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P57 of 1999

B e t w e e n -

ALAN BOND

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 FEBRUARY 2000, AT 9.33 AM

(Continued from 3/2/00)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Solicitor.

MR MEADOWS: May it please the Court. May I return to the issue of de facto officers and to refer the Court to the judgment of Chief Justice Butler in State v Carroll (1871) 38 Conn 449. The reason I take the Court to that case is that I think it can fairly be said it contains what would be regarded as the quintessential statement as to the operation of a doctrine. It is to be found at page 471, three-quarters of the way down the page, where the Chief Justice identifies a de facto officer as:

one whose acts, though not those of a lawful officer, the law upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised.

GUMMOW J: Now what is the policy injustice here in the light of the Constitution?

MR MEADOWS: The policy injustice here, your Honour, is that here we have a case of a self-confessed criminal who was convicted on his own plea, who received a sentence from a court of competent jurisdiction which sentence was held to be inadequate by a court of competent jurisdiction.

GAUDRON J: You cannot quite say by a court of competent jurisdiction unless you win on the first point, because if there was no appeal filed, it is - - -

MR MEADOWS: That does not go to the jurisdiction of the court, with respect, your Honour. That goes to the validity of the institution of the proceedings.

GLEESON CJ: On the assumption against you, the jurisdiction of the court was invoked by a person acting in excess of his authority.

MR MEADOWS: Which is what we say brings into operation the de facto officer doctrine.

GLEESON CJ: Suppose the problem had been not the construction of the two statutes that we have been looking at but some irregularity in the appointment of Mr Bermingham as an officer of the DPP, then - - -

MR MEADOWS: Once again, it is a question of whether the person in question had the authority to institute the appeal and that - - -

GLEESON CJ: Yes, but suppose Mr Bermingham had been appointed an officer of the DPP for a term and, unknown to anybody, the term had expired.

MR MEADOWS: Yes.

GLEESON CJ: So that the provisions of section 17 could not have authorised what he did because he was not an officer.

MR MEADOWS: Yes.

GLEESON CJ: But he went ahead and signed a notice of appeal in excess of his authority, invoking the jurisdiction of the Western Australian court which then exercised it. What would the consequence of that be?

MR MEADOWS: Well, we would say, first of all, that if he was no longer an officer of the Commonwealth DPP, there would not be any constitutional inhibition on him receiving an appointment under section 578 and therefore initiating an appeal under section 688.

GLEESON CJ: Suppose the problem was slightly different. Suppose that his appointment under the Western Australian statute had been for a term and, without it being noticed, it had expired?

MR MEADOWS: Well, we would say that the de facto officer doctrine clearly saved that, and it would be saved under the third category identified by Chief Justice Butler because the officer would not be eligible to have exercised the particular power that he sought to exercise.

GLEESON CJ: When Sir Owen Dixon summarised the doctrine, he referred to the acts of an officer de facto done in the apparently regular execution of his office. How can it be in the apparently regular execution of somebody's office if the irregularity can be demonstrated simply by referring to an Act of Parliament?

MR MEADOWS: Yes, well, with respect to what Sir Owen Dixon said in that article, that is just one of the instances where the doctrine is applicable and I think I am right in saying that he refers to the statements of Chief Justice Butler in this case as representing a statement of the application of the doctrine, and we would say that the circumstances of this case and the circumstances which your Honour has outlined would fall within the third of the examples and if it be the case that the appointment is truly unconstitutional, which we say that it is not, then it would fall within the fourth of the ones identified by Chief Justice Butler.

But we would deny the proposition that this is truly an unconstitutional appointment. What has happened is that by a reading down of the operation of the State Act this particular person was rendered ineligible to initiate the appeal.

HAYNE J: Taking this statement from State v Carroll, what are the duties of what office that you say were exercised in this case?

MR MEADOWS: It was a duty of whoever was authorised to prosecute on behalf of the Crown to initiate an appeal.

GAUDRON J: Duty? Power?

MR MEADOWS: Or power, yes, your Honour. But, certainly, if you look at the State v Carroll - - -

GAUDRON J: Discretionary power at that.

MR MEADOWS: It is a discretionary power, no question about that, your Honour.

GAUDRON J: It is clear, is it, that that power resides in any officer of the State DPP who holds authority to present indictment without reference to the State DPP?

MR MEADOWS: Yes, because, as I think we have pointed out in our submissions, yes - - -

GAUDRON J: Yes, I do not want you to put it, but it is clear. That is the practice, I take it?

MR MEADOWS: Not in relation to - - -

GAUDRON J: State offences.

MR MEADOWS: Yes, but not in relation to offences under the co-operative scheme.

GAUDRON J: But what about purely State offences?

MR MEADOWS: Purely State offences.

GAUDRON J: Yes, what about a good old-fashioned fraud that does not involve corporations?

MR MEADOWS: We do have them, your Honour, and in that instance the appeal would be instituted either by the Director himself or some other officer of the State Director's office who held authority under section - - -

GAUDRON J: I am not asking whether it is instituted, which I take it to be the mere filing of a notice of appeal signed by the person who presented the indictment, I am asking if, in practice, a person who holds an authority to sign and present an indictment files what I shall call prosecution appeals without reference to either the State DPP or the Attorney-General.

MR MEADOWS: Well, I would say unquestionably that does happen.

GAUDRON J: That is the practice.

MR MEADOWS: I would not say it is the invariable practice but it does happen.

GLEESON CJ: Is there some kind of internal management rule? Suppose, for example, the problem was that whoever signed the notice of appeal within the State DPP's office had failed to follow some instructions from the State DPP or from the Attorney-General about obtaining proper approval before filing such a document. What would the consequence of that be?

MR MEADOWS: I do not believe that that would affect the validity of the appeal. The validity of the appeal owes its efficacy to the statute. What has happened in practice in Western Australia is that a certain number of officers of the DPP have been given the authority to initiate prosecutions and also, it would follow, to institute appeals. Obviously they are people who are regarded as senior and responsible officers.

KIRBY J: One gets a bit of an impression looking through this case of State v Carroll that the learned judge, Chief Justice Butler, who did a great job of research, has simply picked up principles expounded in England without questioning whether they apply in the context of a written Constitution where there is a higher policy, a higher policy being that expressed in covering clause 5 and that is that all citizens, all courts, must obey the Constitution because it is the fount of everything else that flows.

MR MEADOWS: Yes, but by invoking the doctrine, that does not mean that the Constitution is not being obeyed, to use a double negative, but I think it makes the point.

KIRBY J: If the Constitution says one thing, I just do not see how a common law doctrine can contradict it.

MR MEADOWS: All the Constitution says in this case is that because of an inconsistency a certain part of a State statute is inoperative; that renders this particular person ineligible, then the de facto officer's doctrine can come into play.

GAUDRON J: Well, I do not know that it is as simple as saying it renders this person ineligible. It redefines the ambit of the appeal process. It does not just say that. What it says is, as it were, the prosecution means prosecution other than by an officer of the DPP, and that, in turn, I would have thought, once you redefine in accordance with section 109, the meaning of prosecution, then I think you redefine the jurisdiction of the court, because there is nothing else that defines the jurisdiction of the court other than by reference back to the other statutory provisions, is there?

MR MEADOWS: Well, with respect, it simply confines the number of people who could be authorised to bring the appeal. It does not affect the jurisdiction of the court, because the jurisdiction of the court is, in fact, conferred under section 58 of the Supreme Court Act.

GAUDRON J: Yes. If you read down prosecution, does that not - - -

MR MEADOWS: That just tells you who can initiate it, on behalf of the Crown.

GAUDRON J: Well, may be, but if you read it down to say, other than persons acting as officers of the deputy, the Director of Public Prosecutions, Commonwealth, does that not define the ambit of permissible appeals?

MR MEADOWS: With respect, it does not, because the appellant is the Crown and the only issue is, who is able to initiate the appeal on behalf of the Crown, and where you get to is that persons who are officers of the Commonwealth DPP are not people who can initiate the appeal on behalf of the Crown, but there are other people that could. So, with respect, it does not go to the jurisdiction of the court.

The only other thing I wanted to say about de facto officers was to refer the Court to Professor Campbell's article in Australian Journal of Administrative Law 1994 volume 2, simply because it does deal with the position in the United States. I am not going to take the Court to it in any detail, but it does address the question of how this issue has been dealt with in the - - -

GUMMOW J: Have we got copies of that?

MR MEADOWS: I think not. I will ensure that the Court does receive copies and also, too, the article by Pannam entitled "Unconstitutional Statutes and De Facto Officers" which is in (1966) 2 Federal Law Review, and likewise we will make a copy of that available to the Court.

GLEESON CJ: There is also a reference to the subject in an article by the late Mr Justice Hutley called "The Cult of Nullification in English Law" 52 ALJ 8.

MR MEADOWS: I am indebted to your Honour. Could I now turn to the remaining issue which we raised and that is in regard to section 73 of the Constitution and to make the point that here the Court is not being called upon to examine the correctness of the decision of the Court of Criminal Appeal. The Court of Criminal Appeal was never called upon to adjudicate on whether the appeal, which was clearly within its jurisdiction, had been validly initiated; in other words, whether the person who signed the appeal papers had standing to do so.

GLEESON CJ: Mr Solicitor, was there a time limit for the commencement of this appeal?

MR MEADOWS: I am sure there was, your Honour. I cannot say precisely what it was - - -

GLEESON CJ: Could you give us a note about that when it is convenient?

MR MEADOWS: Yes, I will. By the way, your Honour, while I am thinking about it, the rule-making power is section 747 of the Criminal Code and it is the judges of the Supreme Court who are given that power.

GLEESON CJ: Thank you.

MR MEADOWS: But I will certainly provide that information. I suspect that I can deal with this issue quite shortly and by adopting what your Honours Justices McHugh and Hayne said in the case of, I think it is called Gipp v The Queen, (1998) 194 CLR 106 and, in particular, what your Honours had to say at page 125 in paragraph 56. There, your Honours discuss the effect of section 73 of the Constitution in rendering this Court as being an appellate court in the strict sense and reference was made to Mickelberg as precluding the Court from admitting fresh evidence.

Then further into the discussion of this particular subject, their Honours made the point that what this meant was that the Court was required to adjudicate upon the correctness of the court below and that if it was being asked to deal with a ground or issue which had not been raised in the court below, it was conducting an appeal by way of re-hearing rather than appeal in the strict sense. Here, we would submit, we have a clear case where the issue being raised on this appeal is an issue which was never raised in the court below. It is not a case like - - -

GUMMOW J: It is, however, a constitutional issue.

MR MEADOWS: I accept that it is a constitutional issue.

GUMMOW J: So it is a different area of discourse, perhaps, to Gipp.

MR MEADOWS: Yes, and I was going to say that the case is different from Gipp in the sense that in Gipp the Court was able to say - the majority were able to say that they were able to determine the matter on the basis of the information which was in the - - -

GUMMOW J: The point sought to be raised here is a point in federal jurisdiction in which we have original jurisdiction, because it arises under the constitutional.....its interpretation.

MR MEADOWS: I understand what your Honour says, except that this is an appeal and what the Court is being asked to exercise is its appellate jurisdiction.

GAUDRON J: Now are you putting this on the basis that we cannot look at the affidavits or on the basis that we cannot entertain the ground of appeal?

MR MEADOWS: Both, your Honour.

McHUGH J: Well, the Commonwealth puts against you that as at 1900 there was power to entertain new grounds of appeal that were not argued before or considered in the court appealed from and they refer to the well-known passage in Connecticut Insurance v Kavanagh. Taken at its face value that case, which has been referred to many times, provides strong support for that submission. The only doubt I have about it is it was an appeal from the Court of Appeal of lower Canada, Quebec, and I am not sure what the jurisdiction of that court was. Under the Judicature Acts an appeal is an appeal by way of re-hearing, which is different from an appeal in the strict sense.

So it is possible that, despite what was said in Kavanagh's Case, the distinction is to be drawn between an appeal from a court exercising appellate jurisdiction under the judicature-type provisions and an appeal in the strict sense that Dignan's Case says that this is the jurisdiction in this particular court.

MR MEADOWS: And that is why there is some danger in going to the English authorities in this area.

KIRBY J: Why would our Constitution be locked into the meaning of appeal in a particular statute of the English Parliament? This is the Australian Constitution we are talking of here and the word "appeal" would be, one would think, subject of course to Mickelberg, given the broadest possible ambit.

MR MEADOWS: My answer to that, your Honour, is that section 73 has been consistently construed as conferring an appellate jurisdiction in the strict sense and not appellate jurisdiction by way of re-hearing.

GLEESON CJ: What is the broadest possible ambit of the word "appeal"?

MR MEADOWS: Well the broadcast possible ambit - - -

GLEESON CJ: Here it would include hearing de novo?

MR MEADOWS: It would, yes, and indeed quite often where a right of appeal by way of re-hearing has been construed as encompassing a hearing de novo.

GAUDRON J: It is the fact, is it not, that this Court in its appellate jurisdiction has, at least since Ah Yick v Lehmert, entertained points not taken below subject, however, to the broad rule that a point will not be entertained if to entertain it would cause prejudice, putting it in broad terms; the Suttor v Gundowda principle and the Suttor v Gundowda principle could have no application, could it, if you were right?

MR MEADOWS: I would have to accept that proposition, your Honour, and my explanation or my rationale for still putting the argument is that section 73 was never put to the Court in those cases.

McHUGH J: Until Dignan's Case I am not sure that the nature of appeal was really fully explicated even though in some of the earlier cases the Court had said it had no power to admit fresh evidence, but Dignan's Case, the nature of the appeal was quite critical. The regulations which were the whole basis that the action had changed between the prosecution and the appeal but this Court said we had to consider on the basis as it was at the time of the original order.

MR MEADOWS: You could not get a clearer case than this one of an issue that was never raised.

GAUDRON J: But do you not have to distinguish between points or, perhaps, grounds of appeal and the ultimate question to be decided which, in terms of this appeal, was whether the appeal should be allowed? Certainly, there is a distinction if what is sought to do is to do something that is way beyond the scope of what could have been done in the court below but if it is a question of what could have been done, what should have been done, is that not different?

MR MEADOWS: The Court of Criminal Appeal was never asked to do it.

GAUDRON J: No, I know, but the ultimate question for the Court of Appeal was, nonetheless, whether the appeal should be allowed or dismissed.

MR MEADOWS: Clearly that is so.

GAUDRON J: And that is exactly the same question that is raised, albeit by reference to a different argument.

MR MEADOWS: I would have to accept that proposition, your Honour, but, nevertheless, it is not an appeal going to the correctness of the decision of the court below.

GLEESON CJ: What would the procedure have been for taking this point in the Court of Criminal Appeal?

MR MEADOWS: Yes, we have thought about that, your Honour, and quite candidly we have come to the view that it would have simply had to have been by motion either before the trial commenced or at the trial.

HAYNE J: Trial or appeal?

MR MEADOWS: I am sorry, the appeal. I beg your pardon, your Honour, yes. To have the appeal struck out as incompetent.

GLEESON CJ: A motion that could have been made and probably, in practice, would have been made after the expiration of time for instituting an appeal.

MR MEADOWS: Yes, your Honour.

GLEESON CJ: Is there a capacity in the Court to extend the time?

MR MEADOWS: I believe so, your Honour.

HAYNE J: Section 695(1) prescribes both the times and, on its face at least, seems to give power to extend.

MR MEADOWS: Yes. Thank you, your Honour. Section 695(1) of the Criminal Code prescribes a 21-day limit for bringing appeals after a sentence has been pronounced and allows for extensions of time.

GLEESON CJ: What would have been the nature of the motion?

MR MEADOWS: To strike out the appeal as incompetent and may have been met, we would say, by an application to substitute the Director or some other person whose capacity to bring the appeal was not in question.

KIRBY J: Though that is undoubtedly a procedure, one could imagine raising it as a ground of appeal. I mean, I think what you say is the correct procedure but, if it had been raised as a ground of appeal, there would, I think, have been no objection. That would have been taken first as a preliminary ground and dealt with as an objection to the competency of the appeal as a ground.

McHUGH J: It could not be taken as a ground of appeal because it was your appeal.

MR MEADOWS: Yes.

KIRBY J: I see.

MR MEADOWS: And of course there is no notice of cross-contention procedure under the Criminal Practice Rules, so it was an issue which either had to be raised on motion or at the outset of the hearing of the appeal. It would have been clearly capable of remedy, we would say, by the prosecution seeking an extension of time within which to initiate an appeal which was signed by a person who had clear authority. That raises the issue here which was identified by your Honours as to whether this case should not be sent back to allow that process to occur.

KIRBY J: But how can that be done without our allowing the appeal and setting aside the orders of the Court of Criminal Appeal?

GUMMOW J: It is not for you as an intervener to urge that, surely. It is for Mr Heenan, and he does not.

MR MEADOWS: I just mentioned it in passing, your Honour.

McHUGH J: You are a party under this curious piece of legislation in the Judiciary Act. You are a party.

KIRBY J: Purportedly.

MR MEADOWS: I have been trying to avoid any argument about my position here.

GLEESON CJ: Anyway, you have run up a flag to see if anyone salutes.

MR MEADOWS: Yes. I do not really wish to make any further submissions on that subject. There was just one other point that I wanted to mention. There were some questions asked yesterday about the position of the Attorney-General. I just direct the Court to section 154 of the Supreme Court Act which deals with the office of the Attorney-General and to subsection (2) which provides that:

The Attorney General shall be the legal representative of the Crown in the Supreme Court, and shall have, exercise, and enjoy all the powers, authorities, and privileges usually appertaining and belonging to the like office in England.

GUMMOW J: From time to time, I suppose.

MR MEADOWS: Well, I am not sure I want to get into a debate about that either, your Honour, but I just draw that to the Court's attention.

GAUDRON J: Does that say that of anybody else? Is there any other Act that says anybody else has those powers, or some of them?

MR MEADOWS: Yes, it can be delegated, your Honour. It can be delegated to myself under the Solicitor-General Act, but there are other - - -

GAUDRON J: Yes, because if one were to take the view that the proper party, that the meaning of the prosecution is the Attorney-General or other person to whom the powers of the Attorney-General - in whom they have been vested by statute or properly delegated, then certain consequences flow, do they not?

MR MEADOWS: Yes, well, of course, the State DPP has - - -

GAUDRON J: The State DPP has the power to institute appeals, there is not doubt about that, it is in his Act.

MR MEADOWS: Yes, but that is effectively a statutory delegation of the Attorney's powers.

KIRBY J: Just going back to the 73 point.

MR MEADOWS: Yes, your Honour.

KIRBY J: Given that you are critical of Mr Bond for not having raised earlier a matter which, really, only came to light in the light of the Court's decision in Byrnes - - -

MR MEADOWS: Yes, notwithstanding he was represented by very competent counsel, your Honour.

KIRBY J: Well, doubtless so, but there would have been a lot of people, indeed, there must be many prosecutions which were conducted on assumptions and many appeals heard that preceded Byrnes' Case.

MR MEADOWS: Yes.

KIRBY J: Now, when the application for special leave to appeal was heard before this Court, the 73 point was, at least in the same class, something which one might say is theoretically a basis for not granting special leave in the sense that it would then be futile. Was that a matter which you or the Crown in right of Western Australia sought to urge on the Court at the special leave stage, or not?

MR MEADOWS: No, we did not, your Honour; and, of course, if I may - - -

KIRBY J: Why should we be more indulgent to you, the matter now being - special leave having been granted, the matter now being before the Court, than you are urging that we should be to Mr Bond

MR MEADOWS: Well, let me say this - - -

KIRBY J: Because the Crown was no doubt also represented by very learned counsel.

MR MEADOWS: Yes, well, Mr Heenan, indeed. But, of course, if I could make this excuse: the papers were served on the Commonwealth DPP. Whilst we were aware that the - - -

GAUDRON J: The 78B notices were served, were they?

MR MEADOWS: Yes, they were, we were aware of it, and we are also conscious of the fact that some members of this Court at least believe that interveners are not entitled to intervene in special leave applications.

GUMMOW J: Anyhow, there is no motion to rescind special leave.

MR MEADOWS: That is something I cannot do, as your Honour would be quick to point out.

GAUDRON J: There was no application to intervene. Whether or not you have a right in the special leave, there was no application for leave.

MR MEADOWS: No, there was not.

GLEESON CJ: I thought Mr Heenan yesterday submitted that we should revoke special leave?

MR MEADOWS: My recollection is that he did say that.

GLEESON CJ: I had a look overnight at the transcript of the argument in the application for special leave to appeal in Hopwood and Byrnes and there was no reference to this question in that case.

MR MEADOWS: Yes. If it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for the Commonwealth.

Mr Heenan, just before Mr Solicitor goes any further, was I correct in attributing to you a submission that special leave should be revoked?

MR HEENAN: Yes, your Honour, I did make the submission that that was one option.

GUMMOW J: Where does it appear?

MR HEENAN: During the course of my oral submissions yesterday, your Honour - - -

GUMMOW J: I know that, but whereabouts?

MR HEENAN: I do not have the transcript before me.

GUMMOW J: I see. My impression was that you flirted with it, but it would ordinarily require some process.

GAUDRON J: Yes.

MR HEENAN: There is no process.

GAUDRON J: Do you intend to file a motion to that effect?

MR HEENAN: May I have some time to consider this?

GAUDRON J: It is important because Mr Jackson has got to deal with it.

MR HEENAN: I appreciate that, your Honours.

GUMMOW J: This is inter partes litigation, not some roving commission.

MR HEENAN: I appreciate this, your Honour; it is a matter that I need instructions upon.

GUMMOW J: Thank you. You are now saying that you have made no application, but you are going to think about it and get instructions and if so instructed, you will make an application in proper form?

MR HEENAN: Your Honours, the submission that I made to the Court yesterday was a considered submission which had been raised with my instructing solicitors. We had not at that time given consideration to whether or not formal process was required. All I am asking is a few moments to - - -

GUMMOW J: It is an idea to tell your opponent if you are going to do these things. Anyhow I will not say any more.

MR HEENAN: I am not able to elaborate on the position more than I have, your Honours, but the submission made yesterday was that one method of dealing with the situation arising from the point being raised in the fashion it had, and the Mickelberg point, was that this Court itself could revoke the special leave which, I understand, has on occasions been done, of the Court's - - -

GAUDRON J: But you only make it in relation to the Mickelberg point, and if the matter could be decided without reference to the affidavits, the submission does not arise, which, prima facie, it seems to me it could be made that the matter can be determined on the basis of the indictment, the notice of appeal and the presumption of regularity.

MR HEENAN: The submission was also associated with the proposition that, if the Court were satisfied that the point could have been met effectively by some different disposition of the proceedings before the Court of Criminal Appeal, that also would be a ground not to allow the point to be taken at this stage of the proceedings and, similarly, the Court should not allow the point to be taken and that that could be dealt with either by dismissing the appeal or revoking special leave. That was the submission I understand that I made. If some process is necessary to carry that into effect, I will quickly take instructions. May it please your Honours.

GLEESON CJ: Yes, Mr Solicitor for the Commonwealth.

MR BENNETT: May it please the Court. Other than adopting my written submissions and supplementary submissions, there are four issues on which I wish to address the Court. The first is the application of State law, specifically sections 578 and 688 of the State Act and the extent to which that gave the relevant authority. The second is the questions arising under federal law and section 109 in relation to Mr Bermingham personally, as an individual. The third is federal law and section 109 in relation to the Director as Director and the fourth is the new ground about the inability to raise new grounds raised by my learned friend the Solicitor from Western Australia.

KIRBY J: You are not going to say anything on the de facto officer's doctrine.

MR BENNETT: No, your Honour. We make no submissions on that. Now, in relation to State law, there are four matters I wish to address. The first is the nature of an appeal generally. The second is the application to the two sections I have referred to. The third is the Rohde and Byrnes gloss, and the fourth is the significance of the need for evidence.

The first matter concerns the nature of an appeal and what we submit is that subject to the specific doctrine of Rohde and Byrnes in relation to appeals by the Crown in criminal matters, putting that aside for a moment, an appeal is nothing more than another step in the course of a piece of litigation. No different in its general nature to filing a pleading; issuing a subpoena; setting a matter down for trial; filing a notice of appeal or issue an execution. All are steps in the progression of a matter.

McHUGH J: This seems to reflect a view, very prevalent, particularly in New South Wales, that verdicts are only provisional until confirmed on appeal.

GLEESON CJ: That is right. The trial is a warm up.

McHUGH J: Yes.

MR BENNETT: Your Honour, it is not that the trial is a warm up. It is simply a question of a step in the process.

GAUDRON J: Well, it is not, because the trial gives right to a final and binding determination. It may be set aside on appeal but what you get at that stage is a final and binding determination. That is not what you get by filing a pleading.

MR BENNETT: The argument I am putting has no relation to the question of the finality of a judgment or the - - -

GAUDRON J: But it has. Appeals have everything to do with that. That is why they are creatures of statute, they were not known to the common law, and that is why provisions relating to the right to appeal are construed according to their terms and why they are construed in the manner that they were in Rohde and Byrnes.

MR BENNETT: Your Honour Rohde and Byrnes depended on the peculiar doctrine in relation to Crown appeals which I am going to come to.

GUMMOW J: Why is it a peculiar doctrine?

MR BENNETT: Well, special doctrine is - - -

GAUDRON J: What is peculiar is a Crown appeal. That is what is peculiar, the Crown appeal, particularly when you could have an appeal from an acquittal.

MR BENNETT: Your Honour, I am going to come to that. At the moment I am dealing with the - - -

HAYNE J: Appeals by accused persons are not exactly of ancient lineage, are they?

MR BENNETT: No, they are not, your Honour, but everything in the process - - -

GUMMOW J: Look, Mr Solicitor, you are asserting a major proposition which is far too wide. You invite us to accept that, then you say there are these other matters there, they can be ignored, but, in fact, they have to be taken into account in formulating the major premise. That is what has been put to you.

MR BENNETT: Yes, your Honour.

GUMMOW J: This is not a permissible form of argument.

MR BENNETT: It is not a major premise, your Honour. It is a - - -

GUMMOW J: All right. You leave out the process and steps in the process. What is the process? The answer to the process ends with a verdict and the entry of judgment or with a conviction.

MR BENNETT: In my submission, where there is an appeal the process continues beyond that for certain purposes and for limited purposes, but it does.

McHUGH J: But why? This Court has said in relation to special leaves, for example, that it is not a step in the ongoing litigation. It is an application to commence a fresh proceeding in this Court.

MR BENNETT: It is in, if I can make the pun, a special category, your Honour. First of all it has been held that it is not, of itself, a judicial hearing between parties in the same sense as an appeal is or as a trial is. There are particular matters which concern appeals to this Court but the general proposition in relation to an appeal is, in my respectful submission, that it is one of the steps in litigation and one sees that - - -

GUMMOW J: What do you mean by one of the steps in litigation? Steps to what?

MR BENNETT: Steps between the commencement of litigation and its ultimate conclusion.

GAUDRON J: No.

McHUGH J: That is the fallacy.

GUMMOW J: That is the fallacy.

MR BENNETT: May I give some examples, your Honour. The first example is the Electric Light doctrine [1956] HCA 22; 94 CLR 554. Your Honours need not go to it.

McHUGH J: It is a favourite case of yours, Mr Bennett.

MR BENNETT: Your Honour, it is a good example of this proposition because where you invest new powers on an existing court, one is assumed to pick up all its procedures including rights of appeal from it. That is an example of the law treating an appeal as a step in the process. Another example appears in - - -

McHUGH J: But it is not a step in the process. Once a verdict is given, judgment is entered, it gives rise to final rights and, in fact, at least in New South Wales, until the enactment of the third party insurance legislation, people used to recover their verdicts even if an appeal was lodged and sometimes still do in New South Wales.

GAUDRON J: And if your argument were right in relation to criminal appeals no convict would be in gaol until special leave had been refused in this Court or, if it were granted, the appeal dismissed because if you were right it would entitle the person to bail automatically.

MR BENNETT: Your Honour, it also flows from the nature of the Mickelberg approach to the function of an appeal, that one is only concerned with the correctness of the trial judge, not with new matters and new evidence. One sees the sort of approach in the Judiciary Act where sections like 61 and 62 dealing with suits by the Commonwealth do not talk about appeals separately but clearly apply to them. Those sections say:

63. Suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney-General or by any person appointed by him -

Clearly that applies right through to the appeal. One does not need a fresh authority. If the Attorney-General authorised someone to commence proceedings, that would authorise an appeal, as it would authorise execution, it would authorise the issue of a subpoena. It would authorise every step in that litigation. If a company passes a resolution authorising a junior officer or a solicitor to conduct a piece of litigation on its behalf, that person would not need a fresh resolution to appeal any more than he would to issue a subpoena or issue execution.

McHUGH J: But supposing the resolution was authorising to prosecute somebody, would that enable him to go and spend the company's money on an appeal?

MR BENNETT: Subject to the Rohde doctrine about rights of appeal, yes, your Honour, as it would allow him to resist an appeal in each of the examples I have given. One sees it also in rules 19 and 21.

HAYNE J: The notion, Mr Solicitor, that instructions to commence a proceeding carry with them instructions to commence an appeal is, I think, absolutely startling.

MR BENNETT: No doubt it is a matter of construction of the instruction in the particular case, but as a general matter, in my respectful submission, that is the case. It is interesting when one looks at rule 19 of the Criminal Practice Rules:

Every notice on the part of the prosecution shall be signed by or on behalf of the Appellant or proposed Appellant or his Solicitor -

so it is not treated from the point of signature as something requiring something separate.

The reason all this becomes important is that when one comes to sections 578 and 688, which must of course be read together, one has to see how they operate in combination. Section 578 provides that:

The indictment is to be signed and presented to the Court by the Attorney General or some other person appointed in that behalf by the Governor.

We have been told the practice is that that person then is regarded as having the conduct of the trial, and no one seems to challenge that. Obviously the Attorney-General could appoint someone else to have the conduct of the trial. The Attorney-General ultimately of course represents the Crown in right of the State and can override whatever instructions are given to a particular agent to do something. When one goes to section 688(2)(d) one sees that:

An appeal may be made to the Court of Criminal Appeal on the part of the prosecution.....

(d) against any punishment imposed -

In my respectful submission, the phrase "the prosecution" is not there a term of art. It is simply saying that that side in the litigation is entitled to appeal.

GUMMOW J: What do you mean by "side"?

MR BENNETT: The prosecution side, your Honour.

GAUDRON J: You mean the Queen?

MR BENNETT: It is ultimately the Queen, yes. It is the Crown in right of Western Australia.

GAUDRON J: That is her right personally unless that prerogative is vested in somebody else, either by statute or by constitutional principle.

MR BENNETT: Yes, and it is vested in the Attorney-General by the latter and possibly the former.

GAUDRON J: Yes.

MR BENNETT: Then one has to ask: to what extent have the individual steps been appropriately delegated? That is where we submit that, reading it with section 578, where a person is appointed and is able to present an indictment, that person is also authorised to do all things necessary unless the Attorney intervenes.

GAUDRON J: All things necessary?

MR BENNETT: Necessary or desirable.

GAUDRON J: Desirable, yes, in relation to?

MR BENNETT: In relation to the prosecution and matters flowing from it.

GAUDRON J: In relation to the prosecution and, again, you have come to that. What does that mean? The prosecution of the trial?

MR BENNETT: Yes. It would include issuing a subpoena.

GAUDRON J: Yes.

MR BENNETT: The Attorney-General does not have to give specific authority to issue a subpoena.

GAUDRON J: No, but it raises a real question whether it includes the decision at one's own initiative to institute an appeal.

MR BENNETT: Well, your Honour, in my respectful submission it does.

GAUDRON J: Yes, well you have to say that. But I still think it raises a real question. It is probably not a question that need be decided in this case, but - - -

MR BENNETT: Your Honour, I will come to the Commonwealth aspects but I have to succeed on both.

GAUDRON J: Yes.

MR BENNETT: And we give the example the Chief Justice gave yesterday of resisting an appeal by filing an appearance to resist an appeal.

McHUGH J: But that arises out of necessity. If you are made a party to an appeal, then there is a necessary implication that you can defend yourself. That seems to me to be the answer to some of the problems that are raised about the DPP being a respondent to an appeal. You do not really need any statutory authority. They can be made a defendant and then, by necessary implication, they must have the power to defend themselves.

MR BENNETT: Yes, he can issue a subpoena. He can do all the steps, make submissions on sentence, do all the things which are incidental or desirable in relation to it. And where the Act then says "the prosecution", that party to the litigation can appeal and uses a neutral or vanilla word like "prosecution" rather than a term of art, then that is within, we would submit, the authority of the person doing it unless and until overridden by the Attorney-General.

In that sense, the Attorney may carry the political responsibility because someone can say to the Attorney, "If you say your prosecutor is the one who decided to appeal, at least why did you not withdraw it?". So there is still a political answerability. But the decision can be made by the person who is entrusted with, what I call in general terms, the prosecution in the broad sense. And once the word is used in section 688 as indicating that in certain circumstances there is a right to appeal, that is no different in my submission than a right to issue a subpoena, a right to make submissions on sentence, or a right to do anything else.

McHUGH J: I am not quite sure, Mr Solicitor, where this argument is going. I appreciate you are looking at the matter purely as a matter of State law.

MR BENNETT: Yes, at the moment I am. I mean to come to federal law.

McHUGH J: Purely as a matter of State law. But that said, the authorisation under 578 is an authorisation that the indictment should:

be signed and presented to the Court by the Attorney General or some other person appointed in that behalf by the Governor.

So the person has authority to sign the indictment. Does the person get from 578, the authority to sign the notice of appeal or commence the appeal?

MR BENNETT: Your Honour, we would submit, yes, but if not, the person certainly gets it from the fact that there is a practice under which the person who signs the indictment is in charge of the prosecution and runs it, because then it is merely one incident of it to exercise the rights given under section 688; that is an incident of the prosecution. If the person can run the prosecution, that is sufficient. And that brings me to the third aspect of this, which is the real problem with the issue being raised at this stage.

GUMMOW J: Well, is this not inconsistent with Byrnes really?

MR BENNETT: No, your Honour; I am coming to the Byrnes' situation in a moment. I have put that aside and I was talking in general terms about - - -

GAUDRON J: You are giving to the word "prosecute" in section 578 of the Code, a meaning which was denied in Byrnes, so you have to at least distinguish it from Byrnes.

MR BENNETT: I will invert the two points I was going to make. Your Honour, the way we distinguish Byrnes and Rohde is this, that those cases are concerned with legislation granting a right in the Crown to appeal and where a right of appeal is conferred, it is construed strictly and, for that reason, section 91 was insufficient - for that and other reasons - in Byrnes' Case. But here we have section 688; we therefore do not have the Rohde problem. What we are dealing with is not whether the Crown has a right of appeal, but what we, with the greatest respect, characterise as the fairly trivial question, of whose is the hand that signs the paper.

GAUDRON J: Well, that question has provoked controversy in other contexts too, but there are two questions: one is the meaning of the "prosecution" in section 688; and then there is the question, what is involved in authority to sign an indictment, to sign and present an indictment; the two do not necessarily march hand in hand to me.

MR BENNETT: Your Honour, one wonders if it would be open to an accused person at the trial to object to the retainer of counsel for the prosecution on the basis that the authority to act came only from Mr - - -

GAUDRON J: No, counsel are counsel. Counsel appear in court by right of their admission to practice, not by right of their ability to sign an indictment. It would be quite surprising - let us test it this way. Let us imagine that there is a progressive Attorney-General in Western Australia and she decides, "I am getting rid of lawyers from the courts; I am going to give all these clerical staff in my department the right to sign and present an indictment", which she clearly can do. Section 578 does it.

MR BENNETT: Through the Governor, yes.

GAUDRON J: Yes. Do you think that would seriously bring along the right to appear in court?

MR BENNETT: No, your Honour, it would not, but it would bring the right - - -

GAUDRON J: It would not, would it?

MR BENNETT: No, but it would bring the right to instruct someone who has the right of audience to appear in court.

GAUDRON J: Yes, well it might do that.

MR BENNETT: And that is what I meant by a challenge to the retainer, your Honour. Someone might say, the solicitor appearing for the prosecution and instructing counsel, does not have a proper retainer because it is only signed by Mr Bermingham and Mr Bermingham has no authority other than to sign an indictment. Now that would fail, that challenge to the retainer.

It would fail because the prosecution would say, "He has authority to sign the indictment in the absence of any revocation and in the light of the practice in Western Australia he is authorised to instruct on behalf of the Attorney-General in running that case". That brings me to the point I was about to make about practice because we know here that the practices, before we get to appeal, that a person who signs the indictment is regarded as having authority to give instructions and, in that sense, conduct the prosecution, cause it to be conducted in court and do whatever has to be done in relation to it.

Now, we know that, at least in this case, and by reasonable inference in the thousands of other cases, that the Attorney-General does not intervene and stop that. One has, therefore, a form of agency well recognised by the law under which the Crown would be entitled, in response to that hypothetical challenge to a retainer at the trial, to say, "Look, my retainer comes from practice, from what has been going on for a long time. The Attorney knows that we commence proceedings, he or she knows that we run them, and that has been happening a long time. There is implied authority".

Now, that issue would also arise in a slightly different way in relation to the appeal. If one says that section 578 does not, of its own right, authorise the signing of a notice of appeal by the person who signs the indictment, if one says that, then one has to say the person who can sign it is the Attorney-General, or a person appointed by the Attorney-General, and - - -

GAUDRON J: Or State DPP, or a person to whom he has delegated the power.

MR BENNETT: Yes. Or a person who, as a matter of practice, does it without complaint by the Attorney-General because that is - - -

GAUDRON J: I do not know about that. I do not know that you can bring estoppel notions in when the liberty of the subject is involved.

MR BENNETT: It is not a question of estoppel, your Honour, it is a question of agency by practice.

GAUDRON J: Estoppel.

MR BENNETT: No, your Honour, by practice. One can give instructions expressly or impliedly. One can delegate an agent expressly or impliedly and the practice here might well - I am not suggesting there is evidence of this because the evidence is not available in this Court.

McHUGH J: Your point is that it is not a case of extensible authority, it is a case of implied authority arising from practice over a long period of time.

MR BENNETT: Yes. Now, no one has put on evidence of that because we have the Mickelberg problem and whatever Mickelberg may say about matters of, if I can use the phrase, quasi judicial notice, like signed authorities and signatures of Attorneys-General, and so on, whatever - I mean, it may be that there is no problem in relation to evidence of that type because it may strictly not be evidence, it may strictly be part of the record, in one sense, or a matter of judicial notice. We have not had to get into that in this case and no one has sought to argue that.

But where one is dealing with this sort of evidence, this might well be controversial. There might well be questions of the extent to which the Attorney-General, by practice, or by conduct in relation to the case, had given implied authority to sign this notice of appeal, or ratified it. No doubt it was a very public act which the Attorney would have known about well within the time of the appeal. That has not been explored and cannot be explored and that raises - - -

GAUDRON J: It perhaps need not be explored because section 17 talks in terms of authority, not in terms of - - -

MR BENNETT: I have not come to that, your Honour, I will come to section 17. But the point I am making at the moment is that there is, on this aspect of the case, a real Suttor v Gundowda problem, not because of, as I say, the technical evidence which probably is not a problem or may not be a problem, but because of the very real question of the evidence that would be called if the issue were raised properly at the correct level, as - - -

KIRBY J: In order to establish that, do you not need to show some evidence?

MR BENNETT: Your Honour, I cannot - - -

KIRBY J: I realise that, but on the Mickelberg principle, that if Mickelberg is overruled, then that problem disappears and the material in our appeal book can be used.

MR BENNETT: Your Honour, I am not complaining about the material in the appeal book. I have said that may be in the special category and I do not wish to become involved in that, but - - -

KIRBY J: I know you are not complaining, but it slipped in in clear defiance of the Mickelberg principle, and everybody is looking at it and then we all have to pretend that we put it out of our minds.

MR BENNETT: Well, your Honour, there is a respectable argument that that sort of material is not the sort of material excluded by Mickelberg, but I do not want to get into that because that is not - - -

KIRBY J: But why? Because it does not go to the offence, but goes to the process.

MR BENNETT: Yes, your Honour.

KIRBY J: Is that the only reason?

MR BENNETT: In much the same way, your Honour, as at common law before the current rules about filing particulars, if a defendant at a common law trial, in order to prove that the plaintiff was going outside the particulars, handed up the letter for particulars and the answer, that was not going into evidence. It is the same sort of approach as that, it is something antecedent to and part of the process and it may well be covered by an exception.

But this sort of evidence that I am talking about is not in that category. If there is an issue as to whether the Attorney-General by conduct has impliedly authorised or ratified what occurred, the sort of evidence that would require would be very different and might well be controversial. That is excluded not so much by Mickelberg only but by Suttor v Gundowda, which is a rule of law, not a rule of discretion; and the Suttor v Gundowda rule that one cannot raise a point not taken below if it would involve evidence or if it could by any stretch of the imagination have been answered by evidence then becomes squarely involved.

Now, the final submission in relation to the first aspect, the State law, concerns something your Honour Justice Kirby put in argument yesterday about the question of rules such as the Suttor v Gundowda rule operating where there is a constitutional principle. There are two matters we would wish to say in relation to that. The first is that this Court has never said that it has a duty to take a constitutional point which might be available if procedurally it is barred, and the authority for that, of course, is Metwally [No 2] where your Honours recall it was sought to argue on a second appeal that a statute antecedent to the one attacked in the first appeal was invalid constitutionally and the Court said, "We won't permit you to do that, you should have done it the first time". Now, if the point was right, it was a constitutional invalidity of a statute which would have changed the result in the case but, because of the conduct of a party and procedural considerations, the Court said no. So the Court - - -

KIRBY J: What is the citation of Metwally [No 2]?

MR BENNETT: It is (1985) 59 ALJR 481 at 483 and it is the last paragraph of the joint judgment.

KIRBY J: Do you raise that both as a section 73 point and as a matter of general discretion? Does not this question arise at the point of granting special leave?

MR BENNETT: No, your Honour, it is not a matter of discretion. What we say is if Suttor v Gundowda excludes the point being raised because it would involve evidence then, by parity of reasoning to Metwally, the mere fact that there might be a constitutional point does not affect it.

GLEESON CJ: Is it because it would involve evidence or because it may involve evidence?

MR BENNETT: Because it may involve evidence. The phrase in Suttor v Gundowda is:

evidence could have been given there which by any possibility could have prevented the point from succeeding -

and that phrase was repeated by Justice Mason in Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509 in a number of places. So that is the first point.

The second point is this and this is really analogous to what my learned friend, the Solicitor from Western Australia - - -

KIRBY J: Could I just ask you on that? That seems a somewhat harsh point to raise in respect of Mr Bond; (a) because the Byrnes point supervened and (b) he now has special leave and the appeal is before this Court and (c) the point is said to, at least in some of its manifestations, arise from the Constitution and to strike at the very validity of the process against him.

MR BENNETT: Let me hypothesise, and I stress I am only hypothesising, that the State's Attorney of the time gave instructions to Mr Heenan now which said, "I knew all about the Bond appeal but, in fact, I telephoned Mr Bermingham and said make sure you appeal in this one" or he said, "I knew all about it. I approved. There was constant general discussion and there was never any doubt in my mind there was going to be an appeal." Now suppose one or other of those was said to Mr Heenan. What could Mr Heenan do? He could not put on an affidavit giving that sort of evidence in this Court, especially if it was disputed. That is the reason for the Suttor v Gundowda rule. It may be harsh one way but it is harsh the other if there is evidence of that sort and it cannot be brought and that is the reason for that rule.

The second point is this, your Honour, that all the constitutional principle - and I have not come to the Commonwealth aspects yet - but all the constitutional principle would do if it were to apply is invalidate a State provision. That would simply remove authority. It would not create a prohibition on authority, subject to the section 17 argument which I will come to.

So, if all we are doing is finding inconsistency and there is some other source of authority which is or might have been available, one is not precluded from relying on that because one is in some way subverting a constitutional principle. One is accepting the constitutional principle and saying, "Yes, the State Act does not operate. Now let's see what we have left", and that is all it is doing. Those are my submissions on the first aspect on the State law.

I turn to federal law in relation to Mr Bermingham. Again, there are four matters I propose to deal with. The first is the significance of his being an individual and named as an individual. The second is the construction of section 17. The third is the form of attestation, and the fourth is the aspect concerning Mr Lorkin, which I will deal with very briefly. The first point before one gets to the construction of section 17 is that, whether or not one uses the Latin tag persona designata which perhaps has overtones, the appointment of Mr Bermingham was of Mr Bermingham personally under State law. He was not appointed as the holder of any particular office. No doubt that is why he was appointed but it is not the basis of his appointment. He is not conscripted by the State, he is not required by the State to do anything. He is merely authorised by the State - - -

GUMMOW J: So he would retain his State appointment if he was dismissed from his Commonwealth appointment?

MR BENNETT: Yes, your Honour, no question of that. Indeed, if one looks at his appointment in the appeal book, one sees that it coincides with the cancellation of the appointment of someone who is no doubt his predecessor. If the day before that was done, after the predecessor had left the predecessor had signed something, clearly he would be free to do it even though he had ceased to be a DPP officer. The State appointment stands on its own right.

There is nothing wrong with a State, or for that matter an individual, authorising a Commonwealth public servant to do something. If I give a Commonwealth public servant my personal power of attorney and that public servant signs some document on my behalf even during working hours, the document is not invalid. I have not in some way acted inconsistently with any - - -

GUMMOW J: We are talking about governmental functions here, Mr Solicitor, and you trivialise it by referring to the power of attorney, frankly.

MR BENNETT: Well, your Honour, I can work upwards. But similarly with a State, there is no reason why a State cannot confer power to sign a document for State purposes on any person, whether or not that person happens to be a Commonwealth public servant. There is a restriction in relation to Chapter III judges and inconsistent matters which emerged in Wilson and no doubt, if the authorisation was something totally inconsistent with Commonwealth duties or powers, there might be a problem, and I will come to section 17.

GUMMOW J: What would the problem be?

MR BENNETT: Sorry.

GUMMOW J: What would the problem be? It is no good floating these vague ideas, what would the problem be?

MR BENNETT: Inconsistency, your Honour.

GUMMOW J: Inconsistency with what?

MR BENNETT: The Commonwealth law under which he or she was appointed to the Commonwealth position.

GUMMOW J: Suppose it is simply a minister of State appointed under section 64?

MR BENNETT: I am sorry, your Honour?

GUMMOW J: Suppose the Commonwealth officer holds office pursuant to the Constitution itself?

MR BENNETT: It would not make any difference, your Honour. If the State - - -

GUMMOW J: Well you said "inconsistent"; I am saying, that does not involve section 109.

MR BENNETT: I see, yes, I am sorry.

GUMMOW J: That is why I want to know what the problems are.

MR BENNETT: Yes.

GUMMOW J: It seems to me if the Commonwealth turns up to make the submission, which is a very complex one, it has to be thought out and fully articulated, Mr Solicitor. I do not think it is thought out and fully articulated in paragraph 5 of your written outline. That is all I am going to say.

MR BENNETT: But, your Honour, it is the doctrine of inconsistent commissions, which might arise there, but - - -

GUMMOW J: That is not referred to in paragraph 5.

MR BENNETT: No it is not, your Honour.

GUMMOW J: No. What has happened is, the Commonwealth has turned up here in a rush at five minutes to twelve, produced these submissions, far reaching in nature and insufficiently thought out. That is not an appropriate method of procedure, in myview.

MR BENNETT: Well, your Honour, with respect, my submission is that that is not the case. What we do say is that for a State merely to authorise a person who happens to be a Commonwealth officer to sign some document and, in the absence of any inconsistency with a Commonwealth statute, and again I will come to section 17, there is simply no reason and no problem in relation to it. There may or may not be a public service problem, a disciplinary problem if one likes, if the person does things which use up Commonwealth time when that is not authorised by the employer or the delegate of the employer, but those problems would not result in the invalidation of anything done and, certainly here, where one is talking about, for relevant purposes, a signature, which takes a few seconds to write, any interference with Commonwealth duties, so far as the signature is concerned, is clearly de minimis.

GLEESON CJ: But it is not a question of the signature, is it? Behind the matter of the signature, there is the very important matter of the person who makes the decision to appeal, which can be a very touchy subject.

MR BENNETT: It can be, your Honour, of course; that is a decision which can be overridden by the State Attorney-General, as I have indicated, but, in the absence of being overridden, can be made by anyone who has the express or implied authority of the State to make it. And, if the fact that the person who is given authority to make it may have duties to the Commonwealth, unless one can get to the point where it is going to prevent the person performing those duties in some way, or be inconsistent with those duties, the mere fact that the person is a Commonwealth public servant simply does not invalidate anything.

McHUGH J: No, correct me if I am wrong, but my impression is that the Western Australia Government does no more than authorise this appointment; that Mr Bermingham would not be consulting State authorities about what he does. The State of Western Australia would not be paying for anything.

MR BENNETT: No, your Honour, but it could, and it has chosen to say, because of its view of its statutes perhaps, we will permit the person authorised by the Governor to do all things necessary and the Attorney chooses to permit that to occur, knowing it is occurring, and does not interfere, as he or she could.

McHUGH J: Yes.

MR BENNETT: Now, I come to section 17. And in my respectful submission section 17 is probably unnecessary and certainly is not a section which carries any substantial negative implications. It is concerned primarily with the internal disciplinary function of the public service. What it is saying is - if I can use the colloquial phrase - "We will allow you to moonlight".

GAUDRON J: Well that is hard to say in the light of section 6(1)(m) when it is said to be a function - in section 6(1)(m)?

MR BENNETT: Yes. Section 6(1)(m) - - -

GAUDRON J: It does not seem to me you can say it is just authority to moonlight when section 6(1)(m) says it is a specific function. That may not equate to a duty but it is distinctly envisaged that he will do it in his capacity as an officer of the DPP's office.

McHUGH J: And section 17 raises an Attorney-General v De Keyser's point. It is stating what the ground rules are. You cannot rely on the general executive power. It is drafting the terms of the authority in very precise terms. Prosecutions for such offences. And when you look at the rest of the Act and you see that juxtaposition of appeal and prosecution, it is as plain as a pikestaff, I would have thought.

MR BENNETT: Well your Honour, may I take it in stages. First, one cannot read it with section 6(1)(m) in a limiting way because of section 6(1)(n). Now nothing in section 17 purports to pick up 6(1)(n), but clearly it does. Clearly it would be open to a member of the staff acting pursuant to the permission granted under section 17, and it is not of course an empowering, it is merely a permission, to do something that falls within 6(1)(n) rather than (m).

GAUDRON J: For example, to pay witness's expenses.

MR BENNETT: Yes.

GAUDRON J: This really is all about things being done in an official capacity, and not about moonlighting.

MR BENNETT: No, your Honour. There would be no need for section 17 if it was solely about in that area, because section 6(1)(m) and (n) would carry it. The staff can clearly do anything instructed by the Director that falls within 6(1). You do not need 17 to take it any further.

McHUGH J: But you do. If, for example, the Auditor-General comes on the scene and he says, "What about this fellow Bermingham? He does not spend - he has been paid to sell and he is never here. He is there prosecuting these State offences. What is the answer?". The department - the office says, "Look, section 17 gives statutory authorisation for this".

MR BENNETT: Precisely your Honour, that is my point. It is concerned with disciplinary matters and public service matters. It is not concerned with power.

McHUGH J: It is more to that, it is concerned with authority.

MR BENNETT: But he gets the authority from 6(1)(m), your Honour.

GAUDRON J: No, the Director does.

HAYNE J: The Director does, not the officer.

GAUDRON J: And 17 then comes to the member of the staff.

MR BENNETT: The Director can delegate matters to the staff, can delegate his functions to his staff.

GAUDRON J: He probably cannot delegate his State appointment.

GUMMOW J: He is already a delegate, you see, if we are looking at the law of agency.

MR BENNETT: In fact, everyone is appointed under the State provision. The Director and Mr Bermingham, as we know.

GUMMOW J: Talking about a sub-delegation when you get to the staff.

MR BENNETT: Yes.

GUMMOW J: Yes, that is why 17 is there, to put those worries to rest.

MR BENNETT: Your Honour, in my respectful submission, it is no more than a permission for the purposes of the type referred to by Justice McHugh a moment ago. But even if it goes further, why would one construe it restrictively? Why would one read it down and say, "This creates an expressio unius"? We know that expressio unius is a doctrine which is in disfavour as a general doctrine of law - Houssein's Case, and so on. Why should one read section 17 as if it said, "Such a member can institute and carry on such prosecutions but cannot go one step beyond that even if the State appointment permits it in relation to the prosecutions". Why would one want to read it that way?

GAUDRON J: Why would you read it up? It does not say "and may institute appeals".

MR BENNETT: No, it does not, your Honour.

GAUDRON J: One would hardly think that it would because the States would then be saying, "No, no, no, no".

MR BENNETT: Your Honour, the Rohde and Byrnes doctrine, which resulted in those words "institute and carry on" being read down in section 91, has no application to a section like 17.

GUMMOW J: It is stronger really.

MR BENNETT: Your Honour, section 17 is not creating a right of appeal. The right of appeal is there, that has been done. All this is dealing with is the far lesser question of who makes the decision or who signs the document.

GUMMOW J: No, who makes the decision is the most important question. You do not get off the ground. The question is who has the political responsibility for making the decision, which can be a very grave decision.

MR BENNETT: Yes, your Honour, and which can be reversed by the person who has that political authority, very quickly, with no difficulty, and that political responsibility - - -

GUMMOW J: With great political difficulty, Mr Bennett.

MR BENNETT: Sorry, your Honour.

GUMMOW J: With possibly great political difficulty.

MR BENNETT: Your Honour, no more than in any situation where a junior officer of a department does something and the Minister overrides it or is criticised for not overriding it. The political responsibility has to deal with that and cater for it. It is part of the delegation of functions in government.

GUMMOW J: Within that polity.

MR BENNETT: It makes no difference if it is the same polity or a different polity, or an independent contractor or a Crown employee. Decisions are made under various forms of delegation which can be overridden and the political responsibility comes in when they are not overridden in those cases or, perhaps, at the stage where the person who made the decision was appointed. But there is nothing surprising about the fact that decisions which carry a political responsibility may be made in the first instance by junior officers. There is nothing surprising about that. It happens every day.

GAUDRON J: We are not only, of course, talking about a decision which carries political consequences or, perhaps, should have political consequences attached, but we are talking about something at least analogous to a prerogative power.

MR BENNETT: In a sense, yes.

HAYNE J: And to whom does the convict direct his or her submissions about whether the power to appeal should be exercised?

MR BENNETT: As with any government decision made at a level below the top one may direct it to the officer making the decision or one may direct it to the superior of that officer or to both.

GUMMOW J: There are two tops here and that is the problem. There are two tops here because there are two bodies politic involved.

MR BENNETT: But the ultimate top is the State Attorney-General.

GAUDRON J: Who writes back and says presumably, "Sorry, it is not my decision. I didn't make the decision. You'd better take it up with" - if he or she is an Attorney-General of the kind that likes to avoid controversy of which some of them distinctly are.

McHUGH J: Do you think you would be able to find a file anywhere in the Western Australian government department prior to the lodging of this particular appeal in relation to this matter? Do you think there would be a file there somewhere that you might be able to find?

MR BENNETT: There might be, your Honour, I do not know.

McHUGH J: Well, it may be.

HAYNE J: In relation to this particular matter, there might not.

McHUGH J: Yes, in relation to this matter.

MR BENNETT: There might be a number, your Honour. The point we make about section 17 is that it does not limit and the words "institute and carry on" can, without inconsistency with Byrnes, be given a wider meaning than in a statute which actually creates a right of appeal.

McHUGH J: But section 17 makes no sense unless it was intended to limit the power to prosecutions for such offences. As this Court pointed out in Boilermakers' the fact that affirmative words appoint or limit an order or form of things very often has a negative force and forbids the doing of things otherwise than in accordance with the affirmative grant of power.

MR BENNETT: Your Honour, in my submission, if it had been the intention of Parliament to say the person may conduct the prosecution up to, as Justice Hayne put it, the door of the Court of Appeal registry but no further it would have been very easy to have said so.

McHUGH J: But it does say so. I mean, why would it pick out prosecutions. It does not give any other authority.

MR BENNETT: Your Honour, "institute and carry on" prosecutions in the context of a case where the prosecution has a right of appeal goes that far and may I just give the example again at the risk of repetition of resisting an appeal or, as in the Tasmanian Case, conducting a second appeal of the Davern v Messel type. Each of those, in my respectful submission, is within section 17 as this is so the primary submission is we are within section 17 and the Rohde factors which led the Court to read those words down in section 91 have no application to a mere consent section such as this or even an empowering section, if it is an empowering section such as this because the Rohde doctrine - - -

McHUGH J: But why would not the Rohde principle apply here anyway? After all you are trying to read into a section a power in the Attorney-General to appeal. Why would not one start with the presumption that Parliament was not, in the absence of clear words, going to give the Attorney-General power to appeal against convictions of sentences.

MR BENNETT: Your Honour is talking about State or federal at the moment?

McHUGH J: I am talking about federal, 17.

MR BENNETT: Your Honour, because you do not need to give the power anywhere in the federal Act. The power is in the State Act. That is - - -

McHUGH J: It is a question of authorisation, is it not?

MR BENNETT: It is a question of who exercises the power. The State Act has said Rohde does not apply because here are clear words saying the prosecution can appeal against sentence, so Rohde is now out of it. One is merely looking at the question of who makes a decision, who signs the paper and so on, and that is all - - -

McHUGH J: No. Supposing, for example, this appointment which appears at page 7 of the record had given an authority to Mr Bermingham to lodge an appeal. I would have thought, prima facie, it was outside section 17.

MR BENNETT: Your Honour, my submission would be, and it is at three levels: one is section 17 covers it; and two is section 17 does not exclude it, and it is there from the structure of the Act and from the consensus found in the general co-operative scheme set up by the DPP Act in sections 6(1)(m) and (n), and 17, and one should not read those sections as limiting in some way the extent of assistance which an individual can give to the State.

The only other matter I want to say about section 17 is that your Honour Justice Hayne referred yesterday to section 9(7) as supporting the construction. I just want to make the point in relation to that subsection that it uses the words:

in addition to such rights of appeal (if any) as are exercisable by him -

or her -

otherwise than under this subsection -

which rather suggests that the section is not limiting what may be done, but simply adding a power.

GAUDRON J: It refers back to the powers that may be conferred under another Act.

McHUGH J: Yes.

MR BENNETT: Yes. The section was only used against me by way of analogy. The section was used against me to demonstrate that where there is a reference to appeal, it is expressly spelt out. What we point out is that where there is a reference to appeal, it is simply assumed, but the power may appear somewhere else, and that takes away that effect of that subsection for present purposes.

The third aspect of federal law in relation to Mr Bermingham is the form of attestation and the question of all powers thereunto enabling. All I want to say about that is this, that that doctrine which has been laid down by this Court in cases like Lockwood, and it is referred to, of course, in Newcrest, has an exception where the two sources of power produce different results, and that is what your Honour Justice Gummow referred to in Newcrest itself. Here one has, if one is taking the analogy, an invalid subagency and a valid agency.

May I just explain that a moment. Mr Bermingham had two potential sources of authority available to him - I will come to invalidity. The first was his direct authority as agent under section 578, or under whatever authorisation there may have been by implication. The second was through the Director under the authority given to Mr Lorkin and the authority given in the letter which is in evidence from Mr Lorkin to him, or the letter where Mr Lorkin says he approves of Mr Bermingham signing the document.

For the sake of argument, let us assume for this argument that the authority to the DPP is invalid for constitutional reasons, so the agency through the DPP and the subagency to Mr Bermingham fails because the agency to the DPP fails for constitutional reasons, but assume that the direct agency does not for the purpose of this argument. If that is so, the fact that he has described himself as acting as subagent for the DPP rather than directly as agent for the State Attorney is a classic case for the application of the Newcrest principle or the Lockwood principle. He had two potential sources of authority. One was invalid. That was the one he purported to exercise but he could equally have done it the other way; he had the power the other way.

GUMMOW J: What is the direct route again?

MR BENNETT: The direct route is if your Honours are with me on section 578 and the State authority to Mr Bermingham directly as an individual. So, although he says "for and on behalf of the DPP", he has the direct authority himself if I am correct in that submission and those words therefore do not detract from that.

The final matter concerns Mr Lorkin. I do not propose to address your Honours on that but simply to remind your Honours if one gets into this area of the facts, that at the time he was an Associate Director and there is a route one can trace authority through about the sections concerning Associate Directors and so on. Mr Lorkin of course had a State authority, as Mr Bermingham did.

The third of the four areas concerns federal law in relation to the Director. I accept that this argument is weaker than the argument in relation to Mr Bermingham. It is only needed if your Honours are against me on the last submission about the form of attestation, but I just want to say this about it, that we accept Justice Brennan's statement of course in Duncan that there would be inconsistency where a State confers powers or duties on a federal body or officer as such because it is inconsistent with the federal statute saying the duties and powers shall be - - -

GUMMOW J: This depends on your moonlight theory, does it not, Mr Solicitor?

MR BENNETT: I have left Mr Bermingham now, your Honour; I am dealing with the DPP. It does not depend on the moonlighting theory, no. It is simply that there is an inconsistency between a federal Act - - -

GUMMOW J: These words "as such" always puzzle me.

GAUDRON J: So the inconsistency we are looking at, contrary to what I had assumed earlier, is between section 17 and section 568, not between section 17, on one view, and section 688. So that on one view, if we get to this point of the argument, the question is whether pursuant to section 578 Mr Bermingham could ever have been given authority to institute an appeal.

MR BENNETT: I have dealt with that, your Honour; I have finished my submissions on that.

GAUDRON J: I had not understood you to deal with that so much as - - -

MR BENNETT: Well, your Honour, our submission is, first, that section 17 is wide enough to permit that; secondly, the general structure of the Act permits it; and thirdly, in the absence of a prohibition there is no reason why a State authority, as opposed to conscription, cannot be given to a federal officer.

GAUDRON J: But, on your argument, as I have understood it, if one ever gets to section 109, the 109 question arises in relation to section 578 and not section 688.

MR BENNETT: I see what your Honour is saying, yes. Well, no doubt, if your Honours were against me and construed section 17 as precluding an officer doing anything for a State prosecution, including an appeal, that was not within the narrow meaning of those words as in Byrnes, then, of course, the argument would fail.

GAUDRON J: And if you come to section 578, if you approach it that way, there are a lot of other questions that do not arise.

MR BENNETT: Yes, that is so, your Honour, yes. We say section 578 includes this section 688 right and, of course, if section 17 overrides that, so be it, we lose. I am now talking about the DPP rather than Mr Bermingham, and we accept that there would be an inconsistency in the absence of a manifestation of Commonwealth consent, but we do say the consent is easily found and, if I may use the phrase, lightly found, because if one sees in the Director of Public Prosecutions Act a scheme under which it is desired that there be assistance given and one has State legislation which then confers powers, it is easy to find, we would submit, that the consent has been given and one would not read down that consent by reference to principles such as expressio unius or narrow constructions of words "institute and carry on a prosecution" which arose because of the Rohde doctrine. That really is the beginning and end of that argument.

There is, of course, Commonwealth executive power. This concerns corporations, in this case, although it might not in other cases. One could easily find the relevant executive power in the desirability of having co-operation, and the example your Honour Justice Gaudron gave yesterday as one of the motivating factors behind section 17, joint drug prosecutions, is a very good example. There are many reasons why, as a matter of executive power, it would be convenient for Commonwealth officers to co-operate with State officers in relation to prosecutions where there are related offences. Similarly, where one has an area such as corporations, which is within the Commonwealth power, although left to be dealt with in particular areas by the States under a joint scheme, again we would submit there is no reason why the executive power should not extend to it. We simply remind, your Honours, without going to it, to the passage in Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at pages 92-93, in the judgment of Justices Mason, Deane and your Honour Justice Gaudron. That concerns the bicentennial authority, but there is a very useful general discussion of the general nature of the executive power.

One gets it also in Barton's Case where it was said there is no need to find a power to ask a foreign country to extradite someone to Australia. A request is not invalid for absence of power, it is simply part of an executive act by the government. De Keyser, we would submit, involves a very different sort of principle and that is where there is a direct inconsistency between the exercise of a prerogative right and a statutory limitation on it or private rights.

The final matter, the last of the four areas I deal with very briefly and that is this question of the Connecticut Case and the power of this Court to permit new points to be raised on appeal. The significance of this point for cases in this Court generally should not be underestimated. First of all, there is not a bright line between arguing something which was argued below in a different way and arguing a point which was not argued below. Everyone knows, from many cases one sees in this Court, that there is often a very subtle distinction. When the counsel is asked, "Was this point taken below?", the answer, "Well, not in exactly that way, your Honour", is, of course, one which is frequently given and it is given because the line is not a bright one.

Of course, it has to be drawn sometimes. If it has to be drawn as a matter of power, it is going to be a problem in a great many appeals because there is always going to be an issue of, "Well, is the way you are putting that really the same point that was argued below?", and there are going to be difficulties. But there are other reasons why the argument does not run and reasons of law which, we would submit, are quite clear. First of all, although it is true that when this Court hears an appeal it is deciding the correctness of what took place below, there are cases where the trial judge acts perfectly correctly but he or she is, nevertheless, overruled. When, for example, this Court overrules a prior decision.

Now, in those cases, one knows that one is supposed to go through the ritual of saying to the trial judge, "I formally submit the High Court decision in X was wrong". Is one to say that because one omits those words, which have no particular importance to anyone, one cannot raise the matter on appeal?

McHUGH J: In Piening v Wanless the Court said you could not do it. No doubt it was said as a matter of discretion but the Court made it very plain that they would not allow the point to be raised.

MR BENNETT: Of course one should, but it is a rule which is not always obeyed. But, more importantly, in that type of case where the trial judge follows the decision of this Court, how can one really say, as a matter of analysis, this Court is deciding that the trial judge did the wrong thing?

McHUGH J: Sir Garfield Barwick's answer in Piening v Wanless was that counsel makes the submission. The Court of Appeal in that case, it said, it would be offensive or it would be wrong for counsel to query the decision - he was ridiculed in Piening.

MR BENNETT: Yes. But, your Honour, assume the submission is made - let us accept that for the moment. Counsel says to the trial judge, "I formally submit that the decision of the High Court in X is wrong", and this Court then holds that its prior decision was wrong. Now, one cannot say that this Court, in hearing the appeal, is determining that the trial judge acted wrongly. Indeed, it would have been wrong for him or her to have taken the other course.

I only give that example because one of the bases on which my learned friend puts his principle is that he says we are only concerned in this Court with the correctness of the decision of the trial judge. If the trial judge follows a prior decision of this Court which the Court subsequently overrules there is a real "correctness" in applying that principle.

Your Honour Justice McHugh referred to the Connecticut Case. The language of that case is far wider than the question of whether the court below was dealing with an appeal of the one type or the other type. The language is this. Where a question of law is raised for the first time in a court of last resort it is not only competent but expedient. It was put as a general proposition not dependant on the type of appeal.

McHUGH J: It was Lord Watson, was it not?

MR BENNETT: Yes, your Honour, it was Lord Watson and the Board comprised Lord Watson, Lord Hobhouse and Lord Shand.

KIRBY J: Would you put the citation on the record?

MR BENNETT: Yes, it is (1892) AC 473 at 488.

McHUGH J: By that time - well, Lord Watson was a Scottish judge to commence with and they had over 20 years then of experience under the judicature system and the appeal was in the nature of a re-hearing. It is a powerful point in your favour. There is no doubt about that and it lends much support to the view that appeal as at 1900 would be understood as encompassing grounds which had never been raised in any court below.

I find it somewhat difficult to reconcile it with the logic of Dingjan's Case on the meaning of section 73 and also with the history of - well, they were not appeals but the procedures under the common law system. For example, the court in banc could only interfere with the verdict of the jury in respect of a point that had been reserved at the trial by reason of the parties and it was for that reason that section 7 was put into the Supreme Court Procedure Act in New South Wales in 1900 to allow a court to enter a verdict as it did in Hampton Court v Crooks in 97 CLR on that basis, but I appreciate the force of what you put.

MR BENNETT: Your Honour, may I just add this to it. In one sense one is dealing with something the trial judge could have dealt with because, although it might not have been the duty of the trial judge to look at the question of law not raised, it would certainly have been open to the trial judge at the trial to say to counsel, "There is another point. I want to hear you on that and I may decide the case on that point."

McHUGH J: I am not sure, though, in this case the Full Court could have dealt with it in the appeal, could it? The point that is now raised goes to the competency of the appeal. It was a question that really should have been dealt with by a motion to strike out the appeal rather than by any grounds within the appeal.

MR BENNETT: Yes, well, that is probably so, your Honour. This is an argument which, in a sense, we are supporting the appellant. But all I am concerned about is that the view tentatively expressed in Gipp's Case is one which we would respectfully submit, is not correct.

McHUGH J: Yes, I know. When Justice Hayne and I wrote Gipp, I must say, for my part at least, I did not have in mind that passage in Connecticut v Kavanagh with which, of course, I am very familiar.

MR BENNETT: Yes, I have not checked whether lower Canada in 1892 had a judicature system or not.

McHUGH J: No. Maybe they did not, because there was a writ issued and there was a declaration in that case, so it would tend to indicate it might have been the old common law procedure type style.

MR BENNETT: Yes.

GLEESON CJ: There is another problem, is there not? The first question that was asked, I see, from a reading of the transcript of the special leave application here was whether there was any objection to the application for special leave being made out of time. That it might be thought was the time to say, "Yes, there is an objection to this being made out of time because it is only being made because somebody has read the law reports, and read the decision in Byrnes and Hopwood, and thought of a point they did not think of below". If every time this Court delivered a decision that produced the result that people in courts below had proceeded on a misapprehension of law, somebody out of time could come along and apply for special leave to appeal to raise a new point. It would certainly be very good for business.

MR BENNETT: Well, your Honour, someone could apply at the moment. It would be unlikely in the vast majority of cases that it would be granted.

GLEESON CJ: Yes, but the time to take that point was at the time when the question was raised as to whether the extension of time to apply for special leave to appeal was opposed. That might have been a powerful ground for opposing that extension of time.

MR BENNETT: Yes, that may well be so, your Honour. But we are not concerned with that aspect in this case as an intervener. All I am concerned with is to scotch the view expressed in Gipp as a general proposition because it is that which causes concern, and that is the only reason I am putting this argument.

GLEESON CJ: Thank you, Mr Solicitor.

KIRBY J: That view was essential to the reasoning of Justices McHugh and Hayne to their conclusion which was in dissent in the result.

McHUGH J: We were dissentients anyway. But Justice Mason- - -

MR BENNETT: It may not have been, your Honour. There are other ways it could have been. There were discretionary routes that might have led to the same result.

KIRBY J: I realise that. It is some time since I have read it carefully. But my impression was that that was a step on the reasoning which those two Justices took in their conclusion to that result in that case. I may be wrong.

McHUGH J: Yes, it was. We said the point could not be raised.

MR BENNETT: Yes.

McHUGH J: I am not sure now whether - we said it probably failed anyway.

MR BENNETT: I think your Honours put that as a discretionary matter as well. It was a case where a point was not taken at a criminal trial in an objection to the trial judge's summing up, and then it was taken for the first time - - -

McHUGH J: But is there not an earlier statement by Chief Justice Mason and Chief Justice Brennan when they doubted - was it Pantorno where they doubted whether the Court could entertain a ground that had not been raised below?

MR BENNETT: I am not sure it went that far in Pantorno, your Honour. In Pantorno special leave was granted and the appeal allowed.

McHUGH J: Yes, but I think the Chief Justice and Justice Brennan thought the point had been raised implicitly in the Court of Appeal, but they tended to doubt the jurisdiction of the court.

MR BENNETT: Yes, what was said was, even when a point which counsel seeks to argue in this Court for the first time can be seen to fall within the grounds of appeal to an intermediate appellate court, this court will not give effect the point if evidence could have been given in the court below, et cetera, which is the Suttor v Gundowda principle.

McHUGH J: Yes, I know that is the standard point, but I think they went further than that.

MR BENNETT: Yes, all that is said in the further page is:

Whether the Court's reluctance to entertain such a ground has its foundation in an absence of jurisdiction or in a discretionary rule or rule of practice is a question which this Court left unresolved in -

a string of cases -

.....As this question was not argued, it would be undesirable now to attempt to resolve it.

So it seems to be left open in - - -

KIRBY J: What is the citation of that page, please?

MR BENNETT: That is [1989] HCA 18; (1989) 166 CLR 466 at 475.

GAUDRON J: A different view is taken in Robinson, then? In Robinson, even though the point was not taken - - -

McHUGH J: And in Giannerelli. Giannerelli is an express decision.

MR BENNETT: Yes.

McHUGH J: I mean, if you were to uphold the view of Justice Hayne and myself in Gipp, then you would require overruling Giannerelli. The point was never taken in Giannerelli.

MR BENNETT: No, and as was said....., it would make the Suttor v Gundowda distinction unnecessary because one would never be able to take the point regardless. Suttor v Gundowda is, of course, the other side of Connecticut Fire and, in our respectful submission, that has always been the rule and is an appropriate rule, because the Court has the discretion and can always refuse to hear the argument, can refuse to grant special leave or refuse it in its discretion at the hearing, or be bound to dismiss it if it violates Suttor v Gundowda because of the need for evidence. So with those safeguards, there is certainly no policy reason for extending the rule to become an absolute rule in the manner which was suggested. May it please the Court.

KIRBY J: Just two little questions. You remember when the decision was made on the juries which held that unanimity was necessary?

MR BENNETT: Cheatle v The Queen?

KIRBY J: Yes, now that must have affected a lot of cases in the pipeline, a lot of connections. What happened in that case?

McHUGH J: We had a case in Adelaide - I cannot remember the name - where we quashed the conviction. In fact, it was the second special leave application - - -

MR BENNETT: Yes, I think Cheatle only involved South Australia in practice. I may be wrong in that, but I think the particular provision which was invalidated only operated in one State and - - -

McHUGH J: A few months later we had another case from South Australia in which we actually quashed the conviction. It was the second - there were two people involved, I cannot remember their names. There was hardly any argument about it, I think.

KIRBY J: The second question is one I asked Mr Heenan yesterday. Is there a Bill, has a Bill been introduced into the Parliament to deal with the Byrnes problem?

MR BENNETT: No, your Honour, not yet. If the Court pleases.

GLEESON CJ: Yes, Mr Jackson. Mr Heenan, you wanted to say something?

MR HEENAN: May it please your Honours. Your Honours, in relation to the proposed revocation of a grant of special leave, can I just mention that the issue this morning arose in questioning from the Court to my learned friend, Mr Meadows, the Solicitor-General, in regard to whether or not his point about section 63 of the Constitution and of the power of this Court to entertain a point afresh could be raised now. If Mr Meadows' point on that matter is sound, then the Court simply has no jurisdiction to deal with the issue raised and whether the matter is disposed of by the revocation of special leave or by simply being dismissed is neither here nor there.

The position that the Director has taken, and which my instructions led to making the submissions yesterday, relate to the Mickelberg point and the prejudice point of failure to take the point in the Court of Criminal Appeal where it could have been effectively remedied.

Can I say that when we expressly and on instructions did not take any point about time on the application for special leave, that was because the Director thought it inappropriate to deprive a litigant, whose liberty was at stake, from his access to the redress of this Court on simple technical grounds, but that was not intended to mean, and we submit it has not meant, that issues arising from the Mickelberg principle or the Suttor v Gundowda principle ought not be raised before this Court and when we made the submissions yesterday, that one method of dealing with this was to revoke special leave, the intention was that that would be, as it were, a remedy or one manner of disposition, which the Court could use to dispose of these proceedings. But as the question has directly arisen, and as we have been asked whether we wish to make a formal motion, the answer is, we do; a motion is in the course of preparation, but the substance of it is in these terms: that the respondent moves that this Court revoke the special leave to appeal granted on 20 October 1999, on the grounds that the issues raised by the appellant were not raised before the Court of Criminal Appeal and that the omission to raise those issues below has the consequences that: (a) for the respondent to answer the appeal adequately, it is necessary to adduce fresh evidence to establish that Mr Bermingham was duly authorised to institute the appeal to the Court of Criminal Appeal and (b) the respondent has been deprived of the opportunity to overcome the alleged invalidity of the appeal to the Court of Criminal Appeal by applying to amend the notice of appeal in relation to the capacity by which Mr Bermingham signed it or by substituting a duly authorised person to sign the notice of appeal or by initiating an appeal by a duly authorised officer and, if necessary, seeking an extension of time to do so.

GUMMOW J: Now who is the appellant there identified? Who has been deprived? You talked about the Director, then you talked about the appellant; who has been deprived of what? We seem to be back at the beginning of yesterday.

MR HEENAN: Well, it must be - yes, and all the complications that that gives rise to, your Honour. We say that in this respect Mr Bermingham was the authorised officer of the Crown in the right of the State of Western Australia. That is the motion and a document will be filed in the Registry as soon as possible.

There is one outstanding question which the Court put to me yesterday, and that is the date of release or parole for Mr Bond. We have not been able to obtain formal confirmation, but the best information we are able to obtain - and I am not able to vouch for its absolute precision - but it is this, that if the decision of the Court of Criminal Appeal were set aside and Justice Murray's decision would stand, Mr Bond would have been eligible for parole on or about 16 April 1999.

If the Court of Criminal Appeal's sentence stands, Mr Bond should be eligible for parole on or about 16 April 2001. I cannot vouch precisely for those dates, your Honours.

HAYNE J: When does the head sentence as originally passed expire?

MR HEENAN: Justice Murray's sentence was - we cannot give that answer directly, your Honours, because we do not know the details of the earlier sentence to which it was cumulative at the moment.

HAYNE J: I assume somebody in prison records somewhere in Western Australia might have some record of this?

MR HEENAN: That is certainly the case, your Honour.

GAUDRON J: Your answer may also indicate why there is some necessity in matters such as this to segregate the State and federal authorities and precisely identify their roles, not from the point of view of the Justices of this Court or counsel, but from the point of view of the individual who is entitled to know where he or she stands both in relation to prosecutions and in relation to the penalties imposed.

MR HEENAN: Your Honour, I am sure there is no doubt at all that there is precise information available and that it is accessible to Mr Bond and his advisers who may probably have this information in their possession and know it better than we do. There has been some difficulty in obtaining the information at short notice but there can be no doubt that it exists in Western Australia and that it is jealously - - -

GUMMOW J: That is because you appear for a Commonwealth functionary and these records are State records.

KIRBY J: That is right, exactly.

MR HEENAN: That is part of the matter, your Honour. At any event, those are the dates.

GLEESON CJ: Thank you, Mr Heenan. Yes, Mr Jackson. When does your client's sentence, as imposed by Justice Murray, expire?

MR JACKSON: I am sorry, your Honour, I do not have the date myself here. We have had some difficulty getting it ourselves, I think for similar reasons, and I will endeavour to put it on a piece of paper for your Honours and see if we can agree about it. I gave some dates on the special leave hearing. I just do not have the transcript in front of me at the moment.

So far as the application for revocation of the special leave granted is concerned, I have heard our learned friend's oral description of the grounds of it. May I say two things about it. The first is that we would seek to deal with that if we may, having seen the papers, and I had assumed that there would be something in support of it to demonstrate the evidence that it is said might have affected the potential outcome. May we deal with that, your Honours, in a written form when it appears.

GLEESON CJ: Yes, you have seven days from the date of filing of that document to put in written submissions.

MR JACKSON: Thank you, your Honour. I did wish to deal with aspects that relate to that by way of reply but to the extent to which reliance was placed on the fact that the issue was not raised below as being a ground for dismissal of the appeal. What was said was that it gave rise to, on the one hand, some form of estoppel and, on the other hand, that there had been the loss of an opportunity to, as the word was used, redress the situation.

Could I deal with the question of redressing first of all. In the end, the only form of redressing which would be either necessary or, in our submission, appropriate would be to institute a new appeal. To do that it would be necessary for there to be a decision made by the State, if I could use that term, to appeal.

The fact that the Attorney-General now seeks to maintain the decision does not mean that the decision to appeal would have been taken if the issue had arisen at some time in the past. It may or may not have been. It would depend, of course, not on the views of Commonwealth prosecuting officers, but on the view of those bearing responsibility in the State. But, your Honours, in any event, the fact that another appeal might have been brought, perhaps might even still be brought out of time if leave were granted, does not alter the fact that the court is dealing only with this case and, your Honours, in this case the question which arises is whether the appeal was competent.

Your Honours, another feature is that it may well be that some constitutional issues, if not taken, may, in some circumstances, be treated as not available on appeal. For example, if a section 92 defence were available in some circumstances but the issue had not been taken in the courts below and the issue was itself one on which there might be evidence germane to the resolution of it, then one would understand that the ordinary principles in Connecticut, and so on, and Suttor v Gundowda, would apply.

But, your Honours, where one is speaking of estoppel from taking a point of considerable significance as the point presently is, one sees that even under the general law in cases not involving constitutional questions, public policy may prevent the taking of the point. Could I give your Honours a reference in that regard to a decision of the Privy Council - in Kok Hoong v Leong Cheong Kweng Mines Ltd (1964) AC 993? We have given your Honours an extract from that at pages 1016 to 1017 where Viscount Radcliffe, speaking for the Privy Council, and the passage, your Honours - I will not read it out - it commences at page 1016 in the first new paragraph on that page and goes over to the end of the first new paragraph on page 1017.

Your Honours, the point that is being made in it is that although there is a principle of estoppel and estoppel that might be brought about even by a judgment, the public policy of the statute against which the estoppel is said to arise may be such that the policy that lies behind the ability to rely on estoppel may itself be taken away by the existence of a higher public policy such as that contained in the Money-Lender's Act where the legislature has decided that the members of the public should have certain protections. Now, your Honours, if that is the case under the Money-Lender's Act, a fortiori the Constitution, and the policies contained in it.

Your Honours, the next issue with which I seek to deal is the proposition that was relied on by the Commonwealth that one does not need statutory authority from the Commonwealth for Commonwealth officers to exercise State powers. Your Honours, that view does not sit well, in our submission, with The Queen v Duncan and the first The Queen v Cram in this Court. Your Honours, I will go to those cases briefly but could I refer your Honours to the summary by your Honour Justice Gummow on the issue in the Federal Court in Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409 at page 439.

Your Honour, at page 439, said at about point 4 on the page said that:

The first of the above cases -

and your Honours will see that immediately above there is a reference to Duncan and Re Cram -

is authority for the proposition that whilst a State cannot unilaterally vest State functions in a Commonwealth instrumentality, the Parliament of the Commonwealth may establish a body such as the ASC and declare that it may exercise functions arising under State laws -

and your Honour gave a number of references to Duncan and then said:

The remarks of Brennan J -

that is in Reg v Duncan -

as to the necessity for authorisation under a law of the Commonwealth for the exercise of powers conferred by State legislation was affirmed in the joint judgment of all members of the High Court in Cram (supra) at 127. Otherwise, the basic proposition remains that a State cannot unilaterally vest functions under State laws in Commonwealth instrumentalities -

and your Honour referred to a number of observations in decisions of the Court. Now, your Honours, may we invite your Honours to refer to the references there given. I shall not take your Honours through them in detail now but we would submit that remains the position. There is no particular basis for setting aside that approach.

Your Honour Justice Gummow referred to the position under section 64 of the Ministers of State. Your Honours, that perhaps raises a slightly different question and if one were to stand aside for a moment from the question of the Ministers of State in relation to departments where there is exclusive power under section 52, because those were originally departments of the colonies but were transferred, one might think that the underlying proposition would be that the notion of being a Minister of State of the Commonwealth under the Constitution was such that States could not, at least without the consent of the Commonwealth, impose functions and duties upon the Ministers of the Commonwealth which might, potentially, interfere with their capacity to exercise, at times of their own choosing and in the manner of their own choosing, their powers as federal Ministers and that might be an implication that would need to be drawn from the Constitution itself.

Your Honours, could I come then to the de facto officer's doctrine. The first thing we would seek to say about that is that the doctrine would seem only to apply where a person has purported to exercise the powers of an office which exists de jure. It does not apply to the purported exercise of an illegal office or one not known to the law and, your Honours, the cases in which the de facto officer's doctrine has been relied on seem to be ones where a person has purported to act in an office that did exist but, in the present case, reliance on the de facto officer's doctrine first encounters a difficulty because of section 109 of the Constitution and, your Honours, if it is the case that section 17 of the Director of Public Prosecutions Act of the Commonwealth renders section 688 of the Criminal Code pro tanto invalid by reason of section 109, the consequence is that during the subsistence of section 17 section 688 is not capable of conferring a power on the Commonwealth Director of Public Prosecutions or any of his officers. There is no office to which the de facto officer's doctrine could apply.

GAUDRON J: And is the same true if you relate section 109 to the other section?

MR JACKSON: Yes, your Honour, it is because it is either 574 plus 688 or 688 by itself. I mentioned the question of jurisdiction and one sees - if I could just pause to say this - in relation to the Supreme Court of Western Australia that its jurisdiction for relevant purposes is not stated by reference to some general concept of jurisdiction of an historical nature, but by reference to a number of specific provisions, which take one back inevitably to section 688. Your Honours, that comes about first by going to the Supreme Court Act and to section 58(1)(g). If one goes to section 58(1)(g), it says that:

the Full Court shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine -

and one goes to (g):

appeals to the Court of Criminal Appeal under and subject to Chapter LXIX of The Criminal Code.

Could I just pause to say to things. First, the Full Court is the Court of Criminal Appeal, you see that from section 57(1), the proviso. Secondly, Chapter LXIX is the chapter which contains section 688 and all the other relevant provisions and may I go now to those provisions in the Criminal Code. The provision with which one commences in that chapter is section 687. Your Honours will appreciate that the provision in the Supreme Court Act to which I referred said that the Full Court, as the Court of Criminal Appeal, had the jurisdiction conferred by Chapter LXIX. One sees what that is from section 687(1). It says:

The Full Court.....shall, subject as hereinafter provided, have jurisdiction to hear and determine appeals under this chapter -

et cetera. Now, your Honours, to see what is the jurisdiction, one then has to go to section 688 and the jurisdiction appears from the provisions to which your Honours have already been taken. The point I am seeking to make in referring to that is that if one says that there is no ability to enliven the jurisdiction of the Court of Criminal Appeal in this manner because section 688 has had part, in effect, cut out of it by the operation of, say, section 17, the result is that the jurisdiction of the Court of Criminal Appeal, in our submission, abates pro tanto.

GLEESON CJ: Well, I do not imagine anyone could suggest that if some indignant citizen took the view that Justice Murray had been too lenient with Mr Bond and instituted an appeal, her action in that regard would regularly invoke the jurisdiction conferred by section 58.

MR JACKSON: I am sorry; I did not catch whether your Honour was saying would or would not.

GLEESON CJ: No one would suggest that it would.

MR JACKSON: No. Your Honours, the other thing I was going to say then about the de facto officers doctrine was this, that if one looks at the United States cases that are referred to by the Attorney-General for Western Australia, what they do show is that the de facto officers doctrine does not rescue, as it were, the acts of persons whose appointment to an office contravened - if I could use the expression in one of the cases to which I will refer in a moment - basic constitutional protections and, in our submission, prohibitions derived from the distribution of powers in the federal system. The particular case to which I wish to refer is Glidden Company v Zdanok [1962] USSC 121; 370 US 530 and in the opinion of the court per Justice Harlan, at page 536.

Your Honours will see, if I could go to the last paragraph on page 536, his Honour says:

The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. It should be examinable at least on direct review.....At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers.

Could I give also two other references without going to the detail of them: Freytag v The Commissioner of Internal Revenue [1991] USSC 118; 501 US 868 at 879 and Ryder v The United States 132 Lawyers Edition 136 at 143. There is another reference to it: [1995] USSC 63; 515 US 177. I am afraid I just do not have the page number of that. Mr Pannam's article my learned friends referred to in [1967] FedLawRw 3; 2 Federal Law Review 37 refers to the issue and notes the qualifications at 58, 61 and 63.

Could we also say our learned friend mentioned in passing the Manitoba Language Rights Cases in Canada. We would submit - and these are submissions of exactly the same nature as we made in relation to the same issue, I think responding to exactly the same words, actually, in one of the Eastman Cases - they are either wrongly decided or confined to their particular and extraordinary facts. Perhaps there is a doctrine of necessity involved.

Could I come then to our position because what we really say seems to have been, if I may say so with respect, massaged a little by some of the arguments on the other sides. We are not attacking the propriety of the trial. The case concerns the appeal and what we seek to say is that if one looks at the Commonwealth DPP Act, it draws a clear distinction between instituting and carrying on prosecutions on the one hand and appeals on the other. I will not go back over the detail of the Act but the language which it uses in the central provisions for the purpose of this case is language which is the same as that contained in section 91 of the Corporations (Western Australia) Act and which was construed by the Court in Byrnes and Hopwood and construed, your Honours, if I may say so with respect, in the way in which it was for reasons of high judicial policy not to include appeals. We would submit it would be an unusual course for the Court to depart from that view in relation to similar wording in the Director of Public Prosecutions Act, particularly when it is perfectly possible to see good policy reasons why the decision to appeal in State offences would not be given to Commonwealth officers.

Now, your Honours, that is to take, as it were, the section 17 route. The section 91 position is also of some importance because it is clear that in relation to this specific area the State has not given the power to appeal. And if I could just pause to say without elaborating upon it, that what you have is a situation where, in relation to the co-operative scheme, specific but limited rights were given in relation to prosecutions for offences under the scheme and the right was given only in relation to prosecutions at first instance. To the extent to which one looks at the matter as a question of State law and compares the provision of the later enactment with the earlier, where the specific but limited right is given or powers are given in relation to one area, then it is submitted that should be treated as an implied repeal of section 688(2), if I can use the expression again, pro tanto.

We would rely, your Honours, on the various discussions of the implied repeal in, for example, Kartinyeri. This is not on our list but the Court's decision in Kartinyeri [1998] HCA 22; (1998) 195 CLR 337, a particular passage, for example, at the bottom of page 375, at the top of page 376, your Honours Justices Gummow and Hayne dealing, amongst other things, with the case to which we referred in our written submissions, Goodwin v Phillips [1908] HCA 55; 7 CLR 1 at 14.

Now your Honours, there are two further matters with which I wish to deal. One is in relation to the question of alternative sources of power. We have put in writing - may I hand to the Court a submission which we have put and your Honours will see it has some handwritten amendments on the question of the ability to rely upon alternative sources of power. Some of the matters contained in it, your Honours, I have already said one way or another. Could I come immediately to the heart of it, and your Honours will see in paragraph 1.3 that after accepting in paragraph 1.2 the existence of some broad principle, what we seek to say is that there are limitations upon the proposition.

Could we refer again to the second of the cases there set out, Mercantile Mutual Life Insurance v ASC 40 FCR 409, and to two references, the first by Chief Justice Black at page 413. I am sorry, that reference I think should be page 412 rather than 413. And at page 412 your Honours will see, commencing halfway down the page, his Honour says:

There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power.

His Honour goes on to deal with that through the remainder of that page and over to the top of the next page. I shall not read it out but would invite your Honours to adopt - we would submit to your Honours that what his Honour says there is correct.

And could we go on also to refer to page 437 where your Honour Justice Gummow said in the second new paragraph - and what your Honour says there must, in our submission be correct:

the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision -

and your Honour developed that through to about two-thirds of the way down the page.

Now, your Honours, we seek then to make two points from that. The first is that which we set out in paragraphs 1.4 and 1.5, namely, that only specific and limited powers were given by section 91. I dealt with that a moment ago. We seek to say that it would be against, amongst other things, the policy or the conferral of that power to allow an officer of the Commonwealth a greater power.

The second point we seek to make, your Honours, is that in paragraph 1.8 and in paragraph 1.8 we refer to section 17 of the Director of Public Prosecutions Act and go on to say in the top of the last page in paragraph 1.9 that the result of the operation of section 17 is to render section 688(2)(d) relevantly inoperative, and there was no alternative source of power. Could I pause to say, your Honours, this, that in the submissions of my learned friend the Solicitor-General for Western Australia, there appeared to be a notion, not, if I may say so, with respect, entirely stated fully, but one that was there to the effect that the provisions of section 688 should be treated in some way as there, but not operative.

Well, your Honours, no doubt, and I used the expression myself on a number of occasions the other day, the way in which, or the description that has been used of the operation of section 109 has been that invalidity in it means that it is inoperative. But, your Honours, it is clear, in our submission, that what is meant by that is that whilst the statute might be acted validly, it has no effect, and no effect at all, while the invalidating Commonwealth statute remains in operation, to the extent of the inconsistency, of course. After the Commonwealth statute is repealed or ceases to operate, then the State statute will come alive if there is anything for it to operate upon.

In that sense, it is different from, for example, the invalidity brought about by conflict with section 52 where there is an exclusive Commonwealth power and the State simply never has a power. The point I am seeking to make about it, your Honour, is that it is not really a case where you have the State power somehow in existence in a kind of suspended animation. It might be suspended, of course, but it is not animate. Now, your Honours, the nature of section 119 consistency is dealt with by the court - I will just give your Honours the reference - in Western Australia and the Commonwealth, The Native Title Case[1995] HCA 47; , 183 CLR 373 at pages 464 to 465 in the joint judgment.

Your Honours, the last matter with which I wish to deal concerns the question of jurisdiction. May we say that there is a large number of cases in which the Court has adopted the course on appeal of allowing points to be taken where the issue has not been raised in the court below. Your Honours, I am conscious of the time, would it be convenient if we listed the passages on a note which we could give to your Honours rather than go through the eight cases I wanted to refer to?

GLEESON CJ: Yes, thank you.

MR JACKSON: I will do that within the same time if that is convenient, your Honours. Could we just say one thing about it, in conclusion, your Honours, that if it be that the submission on behalf of Western Australia is correct and that the ambit of a section 73 appeal is really determined by the parties, by the points that are taken and not taken in the court below, then that notion of appeal, the concept of appeal, being so limited would seem to affect also the Commonwealth's power in relation to the regulation of appeals and the manner in which they are dealt with by the court.

McHUGH J: But it really seems to turn on a question of whether the order below was correct in the materials before the Court, or was correct on the grounds of appeal before the Court, and that seems to be the choice, does it not?

MR JACKSON: I am sorry, before this Court or that court, your Honour, I am sorry?

McHUGH J: The nature of the appeal, everybody seems to agree, the question is whether the order of the court below is correct. The question is does that mean whether it was correct on the materials before it or it or was it correct on the grounds of appeal that were argued before it? Is there any other view?

MR JACKSON: Well, your Honour, perhaps on the issues that were argued before it, I suppose, in a case of this kind.

McHUGH J: Yes, yes.

MR JACKSON: Well, your Honour, that is one way of encapsulating it, but, of course, in the end - and the references I will give your Honours tend to indicate this - what is being looked at in cases of this kind - by that I mean criminal appeals - is the result, in effect, as distinct from quite entirely, though not irrelevantly, the means to it. Your Honours, what I was going to say particularly was this, that if it be that it is really to be determined by the way in which the parties conducted in the courts below and that it is the parties who determine the ambit of it, that must affect - because of the nature of - section 73 containing the constitutional inhibition - that must affect the Commonwealth's legislative power in relation to the disposition of appeals. It seemed difficult, your Honours, to see how that legislative power could authorise provisions such as section 78A of the Judiciary Act in relation to appeals allowing interventions by the Attorneys.

McHUGH J: Might be a ground for taking a narrow view.

MR JACKSON: I am sorry, your Honour?

McHUGH J: That might be an argument for taking a very narrow view.

MR JACKSON: Well, your Honour - - -

GUMMOW J: That is why I was surprised that the Commonwealth put its submissions.

MR JACKSON: Yes, your Honour, well it is like the curate's egg argument, yes.

GUMMOW J: I mean, that Western Australia put its submissions.

MR JACKSON: Yes, indeed, your Honour. It is a bit like the curate's egg, I suppose.

GLEESON CJ: Thank you, Mr Jackson. We reserve our decision in this matter and we will adjourn to reconstitute in Court No 2.

AT 12.10 PM THE MATTER WAS ADJOURNED