THE MYSTERIOUS WORD "SENTENCES" IN
s 73 OF THE CONSTITUTION
The Hon Justice Michael Kirby AC CMG*
CRIMINAL APPEALS
A glance at the recent decisions of the High Court of Australia
confirms an impression that appeals in criminal matters constitute an
important and growing proportion of the Court's business.
This
impression is borne out by statistics published in Annual Reports of the
Court and otherwise available1.
To some extent, the growth of the number and proportion of
criminal appeals may reflect the changing interests of the Justices of the
Court and changing attitudes within the legal profession towards the
significance of crime and punishment in the landscape of Australian law.
*
The author acknowledges his indebtedness to Justice McHugh for
reference to, and discussion of, some of the historical sources
mentioned in this article. The views expressed are solely those of
the author.
1
High Court of Australia, Annual Report 2000-2001, 72. the number
dropped to 82 in 2001. The number of criminal applications and
appeals to the High Court of Australia has increased significantly
since the 1970s. In 1970 there were 14 applications for special
leave to appeal in criminal cases. In 2000 the number was 112: cf
M D Kirby, "Turbulent Years of Change in Australia's Criminal Law"
(2001) 25 Criminal Law Journal 181.
2.
To some extent, the change may follow the introduction of the universal
requirement for special leave in order to engage the appellate
jurisdiction of the High Court2. When, as was the case for three quarters
of a century, special leave was required in criminal appeals but a
significant number of appeals in civil cases could secure a hearing as of
right3, the obligatory jurisdiction had a tendency to oust criminal appeals,
given the limited available time and the fact that the Court had no option
but to adjudicate upon appeals brought to it as of right.
Now that virtually all appeals require special leave, the mix of the
cases is different. The statutory criteria for special leave expressly draw
attention to the "interests of the administration of justice, either generally
or in the particular case"4. Inescapably, this consideration obliges the
High Court to notice cases of apparent injustice. Especially where a
person has lost his or her liberty and reputation as a result of a criminal
conviction and sentence, an appellate court, faced with an arguable
error of law or serious mistake in fact-finding by the courts below, may
be moved more easily to consider the matter than, say, one where the
concerns of injustice are not so personal and urgent.
2
Judiciary Act 1903 (Cth), ss 33, 35A.
3
Judiciary Act 1903 (Cth), s 35(1)(a). Originally the judgment had to
be one which "involves directly or indirectly any claim, demand or
question, to or respecting any property or any civil rights amounting
to or of the value of £300": Amos v Fraser (1904) 4 CLR 78;
Jenkins v Lanfranchi (1910) 10 CLR 595 at 598; Milner v James
(1910) 13 CLR 165 at 167.
4
Judiciary Act 1903 (Cth), s 35A(b).
3.
Considerations such as these may render it necessary to revisit
some of the earlier observations of the High Court concerning criminal
appeals that were made before the universal system of special leave
was introduced for the Court's appellate jurisdiction5.
Certainly, the
earlier opinions of the Court in respect of its acceptance of appeals
about sentencing exhibit an antagonistic attitude. For example, in White
v The Queen6, which was an application for special leave to appeal
against sentence, the Court7 said8:
"Prima facie we do not think a case is special unless it
involves some point of law of general application and,
therefore, of importance. This case involves no point of law,
none whatever, and we do not think that in such a case we
should intervene unless there appears to have been a gross
violation of the principles which ought to guide discretion in
imposing sentences. In the history of the Court I think no
such case has appeared and we have refused in matters of
sentence to interfere time and time again under this
jurisdiction to grant special leave".
5
There is one effective exception to the requirement of special leave
to appeal, namely, the power of the Family Court to grant a
certificate permitting an appeal to the High Court: Family Law Act
1975 (Cth), s 95(b). See DJL v Central Authority (2000) 74 ALJR
706 at 711-712 [20]-[21], 721-724 [73]-[86]. Appeals from the
Australian Industrial Relations Court required leave but this is now a
dead letter. Appeals from an interlocutory order of a single Justice
to a Full Court require leave: Judiciary Act 1903 (Cth), s 34(2).
6
(1962) 107 CLR 174.
7
Dixon CJ for the Court comprising McTiernan, Kitto, Menzies and
Owen JJ and himself.
8
(1962) 107 CLR 174 at 176.
4.
The present statutory criteria for special leave are not the ones to
which Dixon CJ referred to in the foregoing passage. In recent years,
appellate courts in several countries of the common law, including
ultimate appellate courts, have acknowledged the "important function [of]
reviewing and minimising the disparity of sentences imposed by
sentencing judges for similar offenders and similar offences" 9.
Nevertheless,
legal
and
practical
considerations
discouraged appeals involving criminal sentences.
have
usually
Disturbance of
sentences, especially by an ultimate appellate court, has been confined
to rare cases.
Amongst the legal considerations sustaining this approach has
been the fact that a sentence is a judicial determination of a quasi
discretionary character. It is therefore subject to the restraints that must
ordinarily be observed by an appellate court in interfering with such
determinations10.
Secondly, the composition and workload of an
appellate court, particularly of an ultimate appellate court, necessarily
restrict the number of appeals that can be heard and limit them, usually,
to cases involving important matters of principle11. An ultimate court is
not simply a further national court of criminal appeal. Were it to assume
that function such a court could be diverted from its constitutional and
legal responsibilities.
9
R v M (CA) (1990) 105 CCC (3d) 327 at 375 per Lamer CJ.
10
House v The King (1936) 55 CLR 499 at 504-505.
11
Postiglione v The Queen (1997) 189 CLR 295 at 337 [4].
5.
This said, a question is raised by the provisions of s 73 of the
Constitution as to whether the language of the grant of jurisdiction to the
High Court of Australia by that section indicates a particular
constitutional purpose that the High Court should fulfil, so far as its other
stated functions allow, a general national superintendence over
"sentences" imposed by Australian courts. This is not a question that
has yet been determined by the High Court. Nor, so far as I am aware,
has it been fully addressed in argument. It is simply another of the
unresolved questions presented by the century-old text of the
Constitution, every phrase of which is important and full of meaning.
One day it may be necessary for the High Court to consider this
constitutional question.
The source of the puzzle lies in the mysterious word "sentences"
appearing in the text of s 73 of the Constitution. That section states
(with added emphasis):
"73
The High Court shall have jurisdiction, with such
exceptions and subject to such regulations as the
Parliament prescribes, to hear and determine appeals
from all judgments, decrees, orders, and sentences (i)
Of any Justice or Justices exercising the original
jurisdiction of the High Court;
(ii)
Of any other federal court, or court exercising
federal jurisdiction; or of the Supreme Court of
any State, or of any other court of any State
from which at the establishment of the
Commonwealth an appeal lies to the Queen in
Council;
(iii)
…
6.
and the judgment of the High Court in all such cases
shall be final and conclusive.
But no exception or regulation prescribed by the
Parliament shall prevent the High Court from hearing
and determining any appeal from the Supreme Court
of a State in any matter in which at the establishment
of the Commonwealth an appeal lies form such
Supreme Court to the Queen in Council.
Until the Parliament otherwise provides, the conditions
of and restrictions on appeals to the Queen in Council from
the Supreme Courts of the several States shall be applicable
to appeals from them to the High Court".
Although courts of criminal appeal are established in Australia by
special legislation and, where they exist, are constituted by the judges of
the Supreme Court of the State in question12, from early days, "appeals"
from courts have been treated as appeals from the Supreme Court of a
State within s 73 of the Constitution13. The jurisdiction and powers of
such courts of criminal appeal (or their equivalent) extend to the
determination of appeals against conviction and appeals against
sentence. Indeed, such appeals comprises the bulk of the work of such
courts. Their determinations are ordinarily expressed in the form of an
"order" or "judgment" of the court concerned. The issue I wish to explore
is what additional jurisdiction (if any) s 73 of the Constitution confers on
the High Court by its use of the word "sentences"?
What is the
significance of the express mention of that word? Upon these questions
two views might be held.
12
See eg Criminal Appeal Act 1912 (NSW), s 3.
13
Stewart v The King (1921) 29 CLR 234; cf McIlwraith, McEachern
Ltd v Shell Company of Australia Ltd (1945) 70 CLR 175 (appeals to
the High Court from a Colonial Court of Admiralty).
7.
THE NARROW VIEW
The phrase "all judgments, decrees, orders and sentences",
appearing in s 73 of the Constitution, appeared on the Judicial
Committee Act 1944 (Imp) although, in that Act, the order of the words
was different14. The provenance of this collection of judicial dispositions
cannot be ignored, given that s 73 of the Constitution proceeds to make
reference to the appeals which had, until the passage of the
Constitution, been (and were thereafter) available to the Queen in
Council.
In the 1890s, such appeals lay pursuant to the Judicial
Committee Act 1844 (Imp). The cross-reference to that Act in s 73 of
the Constitution, therefore suggests that the text of the earlier imperial
enactment was in the mind of the drafter of s 73.
Although in common speech the word "sentences" undoubtedly
refers today to a judicial determination involving criminal punishment,
this would not necessarily have been the way in which the word would
have been read in England in 1844. At that time, the adjudication of
ecclesiastical courts, and possibly of Admiralty and prize courts, might
be referred to as the "sentence" of that court. The use of the collection
of nouns, describing different judicial determinations together, might
therefore suggest that the word "sentences", appearing in the phrase
14
It was "Judgments, Sentences, Decrees and Orders".
8.
picked up from the Judicial Committee Act, was used in a special and
historical sense; not the popular sense connoting the punishment
imposed upon a convicted criminal.
On the face of things, the word "sentences", whether appearing in
the Judicial Committee Act or in the Constitution, was intended to
exhaust the various categories of judicial determination from which
appeal might be brought to the appellate court in question.
Such a
comprehensive function for the phrase would have been apt to the broad
ambit envisaged for the Judicial Committee of the Privy Council in 1844
as the final court of the British Empire, supervising, amongst other
things, all the many and varied courts of the British colonies, settlements
and plantations beyond the seas.
But it would also have been the
purpose of including the identical collection of words in the Australian
Constitution.
The balance of the provisions in s 73 indicate that a
coalescence was intended, within the Australian Commonwealth,
between the jurisdiction of the Privy Council and that of the new High
Court.
Differentiation between "judgments" and "orders" is relatively
simple to explain.
The former typically disposed of an entire action,
whereas the latter need not do so but might include interlocutory
orders15. A "decree" is a common form of judicial disposition provided
15
cf Onslow v Commissioner of Inland Revenue (1890) 25 QBD 265
at 266.
9.
under Scottish law16. It was the term used in England for the judgment
of a court of equity and in matrimonial suits17. It was by the Judicature
Acts 1873-75 (UK) that the expression "judgment" (which had formerly
been used only in respect of the formal depositions of courts of common
law) was adopted to refer to the judicial determinations of all Divisions of
the new English Supreme Court. However, in matrimonial suits in the
Probate, Divorce and Admiralty Division, "decrees" for dissolution or
nullity of marriage were still made18.
In living memory before the
passage of the Family Law Act, Australian divorce courts made "decrees
nisi" and "decrees absolute."
Because the collection of words appearing in s 73 of the
Constitution can properly be traced to the Judicial Committee Act which
preceded the statutory reforms of the 1870s, it would not have caught up
with the change of nomenclature in England. The position at the time of
16
Formerly known as a "decreet". Scots law allows for "decrees
conform", "decrees dative", "decrees of exoneration", "decree of
locality", "decrees of modification" and "decrees of valuation of
teinds": L Jowitt (ed) The Dictionary of English Law, 1959, 589-590.
17
As to "decrees" in Chancery before the Judicature Acts, see
Daniell's Practice of the High Court of Chancery, 3rd ed, Vol 11,
784: Colonial Securities Trust Co Ltd v Massey [1896] 1 QB 38 and
the reference to Dimes' Case (1849) 12 Beav 63 at 80 [50 ER 984
at 990] mentioned in Barton v Walker [1979] 2 NSWLR 740 at 753754.
18
Jowitt, ibid, 591. Note that in the Court of Arches, a suit was
commenced by a process called a "decree", ibid, 589.
10.
the enactment of s 73 was that stated in the Encyclopaedia of the Laws
of England19:
"In its original or primary sense 'judgment' meant a decision
or adjudication of a Court of the common law, whether of
record or not, and whether of civil or criminal jurisdiction. In
the ecclesiastical court such decision was termed a
'sentence' and in courts of equity or in the civil law, a
'decree'".
Digging back further into legal history, before the enactment of the
Judicial Committee Act of 1844, it can be discovered that the earlier
jurisdiction of the Privy Council included appellate jurisdiction in
ecclesiastical and Admiralty matters. In 1832, appeals in such matters
in England were transferred20 from the King in Chancery to the
Sovereign in Council21. A year later the jurisdiction of the Privy Council
was submitted to general statutory regulation, replacing the large areas
of the Royal prerogative which had formerly governed the Privy Council's
jurisdiction and powers22. It was under this legislative reform that rights
of appeal were accorded "in respect of the Determination, sentence,
Rule or order of any court".
19
Second ed (1907), Vol 7 at 528.
20
2 and 3 Will IV c 92.
21
Stafford and Wheeler, Practice of the Privy Council in Judicial
Matters (1901) at 2.
22
3 and 4 Will IV c 41 (Lord Brougham's Act).
11.
A later Judicial Committee Act of 1843 made additional provision
for appeals in ecclesiastical, Admiralty and prize matters.
The
provisions
from
of
the
lastmentioned
Act,
regulating
appeals
Ecclesiastical and Admiralty Courts23 referred to "any Order, Decree or
Sentence appealed from".
This might suggest that the judicial
determination of Admiralty courts was sometimes called a "sentence".
But this is not necessarily so. Another view might be that the words
were used distributively, "sentences" being a reference to the
determination of ecclesiastical courts and "orders" or "decrees" being to
those of the Admiralty courts and prize courts.
However that may be, the Judicial Committee Act of 1844, still in
force at the time of the adoption of the Australian Constitution, picked up
and elaborated the words previously used, adding to them a reference to
the common law "judgment" and recasting their order to read, in respect
of the extended appellate jurisdiction of the Judicial Committee:
"any Appeal or Appeals … from any Judgments, Sentences,
Decrees or orders of any court of justice within any British
Colony or possession abroad".
In 1844, when this collection of words was adopted, there was no
process of "appeal", as such, in England, or in any British colony or
possession abroad, in respect of criminal convictions or sentences. At
23
Judicial Committee Act 1843 (Imp), s xi.
12.
that time, such judicial determinations could be challenged only by a writ
of error or other complicated procedures24. In England the process of
"appeal" was eventually adapted as part of the general judicial
procedures by way of an innovation of the Court of Chancery25. It did
not come about as a general facility for other superior courts until the
passage of the Judicature Acts.
Because criminal sentences were imposed in common law courts,
the ultimate order of disposition, when the Privy Council statute was
reformed in 1844, would have been described as a "judgment". The
sentence that followed the jury's verdict of guilty, with consequent
conviction, would be part of the "judgment" of the court concerned.
Against this background, it can be said, with a high degree of certainty,
that in 1844, the word "sentences" in the jurisdiction of the Judicial
Committee of the Privy Council would not have been taken to extend to
criminal sentences.
At that time, both in English and imperial legal
history, the word would have been understood as having a technical
meaning, apt in the context to provide the Privy Council with a
comprehensive appellate jurisdiction including in respect of appeals from
the determination of applications in the ecclesiastical courts which, at
that time, still called their judicial determinations "sentences".
24
R v Snow (1915) 20 CLR 315 at 349-350; Conway v The Queen
(2002) 76 ALJR …
25
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq)
(1999) 73 ALJR 306 at 323 [73]; Conway v The Queen (2002) 76
ALJR … at …
13.
Conforming
to
this
historical
understanding
of
the
word
"sentences", it is no doubt unsurprising that the Privy Council in the
nineteenth century limited its intervention in criminal matters to cases
where such intervention was necessary to set aside a conviction that
constituted a miscarriage of justice on the ground that it represented a
fundamental departure from the rules of law and procedure governing
the trial26.
At the time that the Australian Constitution was being
negotiated and adopted both in England and Australia, the facilities for
appeals in criminal causes remained strictly limited. The breakthrough
in criminal appeals occurred after the passage of the Criminal Appeal
Act 1907 (UK)27. By that Act, the English Court of Criminal Appeal was
established. It enjoyed power to set aside a conviction where there had
been a miscarriage of justice "whether the objection is a legal objection
or not". Like legislation was quickly enacted by most of the Australian
States, although not immediately by Victoria. This omission was pointed
out in Peacock v The King28.
Because of it, the Supreme Court of
Victoria was held by the High Court, even in 1911, to be confined to
26
cf Riel v Queen (1885) 10 AC 675; In re Dillet (1887) 12 AC 459; Ex
parte Deeming [1892] AC 422; Ex parte Macrae [1893] AC 346;
Cops v The Queen; Ex parte Cops [1894] AC 650; Ex parte Carew
[1897] AC 719.
27
cf Fleming v The Queen (1998) 197 CLR 250 at 257-258 [16]-[17];
State Rail Authority of New South Wales v Earthline Constructions
Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322-324 [73]-[75]; 160 ALR
566 at 609-610.
28
(1911) 13 CLR 619 at 673.
14.
setting aside judgments in criminal matters only for "error of law". It was
assumed that the High Court, on appeal from the Supreme Court, had
no larger constitutional jurisdiction than the State court enjoyed.
The foregoing history suggests a very limited purpose, if any
purpose at all, for the inclusion of the word "sentences" as it appears in
the list of judicial determinations from which appeals might lie to the High
Court from federal and State courts in Australia pursuant to s 73 of the
Constitution.
Historically, the word was almost certainly a borrowing
from the Judicial Committee Act. If it had any application at the time that
the Constitution was adopted, it was confined to appeals in the
anomalous case of ecclesiastical courts that were not properly described
as "judgments, decrees [or] orders".
Upon this view, the word
"sentences" did not have the meaning ordinarily attributed to it in
common speech, whether at the time of the Constitution or at the
present time.
convictions.
It did not refer to "sentences" following criminal
It did not confer on the High Court any additional
jurisdiction of national superintendence of criminal "sentences". Above
all, it did not indicate that such superintendence was a special, new,
federal and constitutional function of the High Court of Australia.
According to this narrow view, the word "sentences" was nothing
but a technical anomaly.
It could be safely ignored.
It afforded no
barrier to the continued observation by the High Court of an attitude of
resistance to appeals involving nothing more than criminal "sentences".
Technically, any such appeals were not appeals from "sentences" at all,
15.
in the constitutional sense of that word.
"judgment" or possibly an "order"29.
They were appeals from a
As such, they had to run the
gauntlet of the attitude to such "appeals" that had predated (and which
long followed) federation and reflected the general distaste and
disinterest of the higher appellate judiciary of the British Empire
(including Australia) in respect of such matters. According to that view,
such appeals were not legally significant. Even in the days where they
came from sentences of death, in the crimes that at federation attracted
capital punishment and attainder and corruption of the blood30, they
were not viewed as the proper business of an appellate court. Criminal
sentences were generally regarded as beneath the dignity of such a
court. A "sentence" of an ecclesiastical court might possibly engage
appellate judicial attention.
But a "sentence" of death or prolonged
imprisonment was not ordinarily to be viewed as falling in the same
class.
THE BROADER VIEW
There is a broader view. Arguments for the broader view do not
ignore the historical background to the use of the collection of judicial
determinations appearing in s 73 of the Constitution. But they balance
29
eg Criminal Appeal Act 1912 (NSW), s 24.
30
R v Kelly [1950] 2 KB 164 at 171; Duggan v Mirror Newspapers
Limited (1978) 142 CLR 583.
16.
such considerations of legal history against other considerations that
must be taken into account in giving meaning to constitutional words.
First, the constitutional setting of s 73 must be remembered. In
that section, the word "sentences" is not simply a word apt to be revised,
re-ordered or amended as the words of the Judicial Committee Act were,
being words of a statute enacted by a parliament unable to bind its
successors. In the context of the Australian Constitution, the word
"sentences" assumed a new quality derived from its origin and purpose.
It was
included in a document which (as the experience of the
intervening century shows) is highly resistant to formal amendment. The
Constitution is a statute pursuant to which other statutes are to be made.
It is designed to provide for the federal governance of a new nation and
to do so indefinitely. Being an instrument for future governance, it would
not normally be assumed that a word used in the Constitution is,
effectively, surplusage or confined to a purely historical application. On
the contrary, unless the contrary is demonstrated, it will usually be
assumed that the word has a contemporary relevance.31.
According to ordinary canons of interpretation, the use of the word
"sentences" in the context of s 73, with its reference otherwise to
"judgments", "decrees", and "orders", itself implies that some new idea
31
As is the case now with s 74 of the Constitution (providing for
appeals, by certificate, to the Privy Council): Kirmani v Captain
Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 at 464.
17.
was contemplated by the insertion of the additional word. If all criminal
"sentences" were merely part of the "judgments" or "orders" of courts
imposing criminal punishment, there would have been no need to
include the word "sentences" for such a purpose.
This is not a
conclusion to which one would readily come in construing a
constitutional word.
Secondly, whatever might have been the position in 1844 when
the Judicial Committee Act was passed, by 1900, when the Australian
Constitution came into force, the word "sentences" undoubtedly
extended to mean, both in common parlance and in legal usage, the
judicial determination of the punishment of a person convicted of a
criminal offence32. Accordingly, by 1900, simply as a matter of ordinary
language, the word "sentences" would include the "sentences" imposed
in the exercise of criminal jurisdiction33. In the Australian context, to
impose a different and narrower meaning on the word would therefore
require very powerful reasons.
Thirdly, an acute difficulty for anyone propounding a purely
historical use of the word "sentences" in s 73 of the Constitution is
32
See Webster's International Dictionary (1909) p 1311 definition of
"sentence" included "a judgement passed on a criminal by a court or
judge; condemnation pronounced by a judicial tribunal" … In
common law, the term is exclusively used to denote the judgment in
criminal cases".
33
Alliance Contracting Co v Russell (1898) 4 Arg LR 103; Webster v
Shaw [1905] VLR 200.
18.
presented by the fact that, by 1900 "ecclesiastical law [had] ceased to
run in New South Wales"34 and indeed, throughout Australia. Even if, at
settlement and for some decades thereafter, the Church of England had
become the established church of the colony of New South Wales35 (a
question of some controversy) that situation did not persist in the
nineteenth century to the time when the federal movement gathered
momentum and the early drafts of the Constitution were being prepared.
It is unnecessary to determine the precise moment at which any
established religion in Australia ceased to exist. It may have been when
government subventions for "teaching the State religion"36 were
terminated in New South Wales in 1862. But if there were ecclesiastical
courts in New South Wales before that date, the exercise of their
jurisdiction is unknown37. The prospect of the revival of ecclesiastical
jurisdiction (especially in the face of the spirit, if not the letter, of s 116 of
the Constitution) must therefore have seemed remote when the
Constitution was being drafted.
34
Wylde v Attorney-General (NSW) (at the relation of Ashelford)
(1948) 78 CLR 224 at 293.
35
Wylde (1948) 78 CLR 224 at 284 per Dixon J; see also 257 per
Latham CJ.
36
Wylde (1948) 78 CLR 224 at 257 per Latham CJ.
37
Wylde (1948) 78 CLR 224 at 285; cf B McPherson, "The Church as
Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159 at
161-163, 169; A C Castles, An Australian Legal History (1982) at
501.
19.
Accordingly, it appears safe to say that the principal suggested
legal reason for the use of "sentences" in s 73 of the Constitution,
namely that it describes the formal dispositions of ecclesiastical courts,
had no relevance to Australia. This fact makes it unlikely that the word
"sentences" in s 73 of the Constitution was adopted in order to refer to
the judicial determinations of ecclesiastical such courts. No such courts
existed anywhere in Australia. None appeared in prospect. There is
real doubt that they had ever existed in most, if not all, of the Australian
colonies.
Nor does it seem arguable that the word "sentences" was
preserved in s 73 of the Constitution for the determinations of Admiralty
(or prize)38 courts in Australia. Civil jurisdiction in admiralty matters was
exercised in New South Wales by a Vice-Admiralty Court until 1 July
1911. On that date, by virtue of an Order in Council dated 4 May 1911,
the Colonial Courts of Admiralty Act 1890 (Imp) was brought into force in
New South Wales and the Supreme Court of that State became a
Colonial Court of Admiralty39.
In the Vice Admiralty courts the
determination of the judge of the Supreme Court of New South Wales
38
The source of prize jurisdiction of Australian courts was the Naval
Prize Act 1864 (Imp); the Prize Courts Act 1894 (Imp) and the
Colonial Courts of Admiralty Act 1890 (Imp) (respectively 27 &
28Vict c 25; 57 and 58 Vict c 39; and 53 & 57 Vict c 27). the firstnamed Act in s 6 used the expressions "order" or "decree" when
describing the dispositions of a prize court. There is no mention in
the foregoing Acts to a "sentence" of such courts.
39
R E Walker (ed) The Practice of the Supreme Court of New South
Wales at Common Law (4th ed, 958) 286.
20.
exercising jurisdiction in admiralty was known as a "decree" or "order" 40.
However, the Colonial Courts of Admiralty Act 1890 (Imp) s 6 used the
word "judgment". It was from such a determination, so described, that
appeal lay to the Full Court of the colonial Supreme Court or to the Privy
Council. The word "sentence", if it was ever used in such a context in
Australia, had completely slipped out of the legal vocabulary for 1890.
Accordingly, when that word was included in s 73 of the Constitution, it
appears most unlikely that it was used to refer to the determinations of
ecclesiastical courts or courts of Admiralty or prize courts. Some other
explanation must be found for the word, at least in an Australian
constitutional context.
Fourthly, the lively debates about the improvement of appellate
facilities generally that accompanied the Judicature Acts in England, and
of criminal appeals that led eventually to the establishment of courts of
criminal appeal in England and Australia, may by the 1890s be taken to
have engaged the attention of those who were devising the future shape
of the judicial arrangements of the coming Australian Commonwealth.
The notion that there should be a national court of appeal to resolve, at
home, differences between the subnational appellate courts had been
accepted in Canada. It was copied in Australia by the creation of the
High Court.
The purpose of such a national appellate court was to
promote uniformity of legal doctrine and to remove disparities which, in
40
Ibid, 298.
21.
the past, could only be resolved by the expensive and time-consuming
process of appeal to the Privy Council.
It would not be unreasonable to attribute to the founders of the
Australian Constitution a desire to extend this logic into the area of
criminal punishment, reflected in the "sentences" imposed by judges of
different courts. Particularly when it was contemplated that provision
might be made for the Federal Parliament to prescribe "exceptions" and
"regulations"41 (as by the imposition of the requirement of special leave
to appeal)42, the idea of affording a facility for appeals against criminal
"sentences" would not have been incompatible with any of the foregoing
national objectives.
Some judges and lawyers might regard "appeals from …
sentences", if extending to criminal sentences, as uninteresting,
unimportant or even beneath their dignity.
Yet in the imagination of
many politicians and other lay people, even in 1900, the notion of
inconsistent or unequal treatment of like cases of criminal punishment
(or the adoption of inconsistent or incompatible principles of sentencing)
might not have been so readily tolerated. At least it can be said that
nothing in the language or apparent purpose of s 73 of the Constitution
is inconsistent with the notion that "appeals from all … sentences", there
41
Text of s 73 of the Constitution.
42
Judiciary Act 1903 (Cth), ss 35(2), 35AA(2); cf Federal Court of
Australia Act 1976 (Cth), s 33.
22.
appearing, would extend to the case of appeals from criminal sentences,
differentiated for constitutional purposes from appeals from "judgments"
and "orders" generally. If this view is adopted, it at least solves the
problem, otherwise apparent, of finding any real use for the word
"sentences" in s 73. Unless this approach is adopted, the reader is
driven to the conclusion that the word "sentences" is worthless, copied
blindly from the language of the Judicial Committee Act of 1844 but with
absolutely no work to do in Australia.
Fifthly, there is contemporaneous support for taking this broader
view. Writing in 1901, John Quick and Robert Garran in their Annotated
Constitution of the Australian Commonwealth said about s 73 and its
reference to "sentences"43:
"'Sentence', in its widest sense, means any judicial
determination, but is most commonly used in connection
with criminal proceedings, to denote the judgment of the
court in a criminal trial upon the verdict of the jury or upon
the prisoner's plea of guilty.
The four words taken together are clearly wide enough to
include every judicial decision, final or interlocutory, in every
jurisdiction, civil or criminal".
To uphold the narrow view of the word "sentences" in s 73 of the
Constitution, one most conclude that Quick and Garran mistook the word
"sentences" in the section, by failing to attribute to it the peculiar
43
§302. Emphasis added.
23.
reference
to
ecclesiastical,
or
perhaps
admiralty
and
prize
determinations for which it was formerly used in England. It seems more
likely that these authors were knowledgeable about the considerations
that were in the minds of the founders of the new Commonwealth. Had
those founders contemplated use of the word "sentences" solely for the
narrow, historical, specialised and largely irrelevant determinations of
ecclesiastical and other special courts, one would have expected that
they would have referred to this. Instead, they took the word, in 1901, to
have its by then common and popular meaning. There seems no good
reason why, a century later, a narrower and artificial meaning should be
attributed to it.
CONSTITUTIONAL INTERPRETATION
The foregoing debate presents, in microcosm, indeed in a single
word, the dilemma about constitutional interpretation that faces everyone
who is engaged in that task. If the word "sentences" is to be given a
purely historical interpretation, according to the meaning that the word
enjoyed in 1900, there are strong (although not conclusive) arguments
for holding that the word does not refer to criminal sentences. Yet is that
the correct approach to the construction of a provision in the Australian
Constitution? Is the search simply to find the historical meaning that the
word enjoyed when the Constitution was adopted? Is it a search to find
what the founders intended when they adopted that word? Or is the
relevant enquiry to ascertain what the word means, as a constitutional
24.
word, today, given that it remains in a national constitution of continuing
application?
The word "sentences" is not solely one of everyday speech. It is a
technical legal word.
This suggests that its purpose is to refer to a
technical legal idea. So much has been said of the reference in s 75(v)
of the Constitution to the "writ of Mandamus" or "prohibition" or
"injunction" referred to in that paragraph44. On the other hand, because
of the very nature of the document, many words used in the Constitution
have a technical legal meaning. This has not, indeed cannot, confine
the words to the meaning they enjoyed in 1900, forbidding any accretion
to, or loss of, meaning that comes about with the changing content of
language and legal understanding over the course of a century and the
changing circumstances in which that language must be understood.
A vivid illustration of the way in which the content even of words of
technical legal expression can change, was given by Justice McHugh in
Re Wakim; Ex parte McNally45. He said:
"[I]n 1901 'marriage' was seen as meaning a voluntary union
for life between one man and one woman to the exclusion of
all others. If that level of abstraction were now accepted, it
would deny the Parliament of the Commonwealth the power
to legislation for same-sex marriages, although arguably
44
Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 at
57 [24], 80 [137]; 176 ALR 219.
45
(1999) 198 CLR 511 at 553 [45] (footnotes deleted).
25.
'marriage' now means, or in the near future may mean, a
voluntary union for life between two people to the exclusion
of others".
… The meanings that we now place on the Constitution may
not entirely coincide with the meanings placed on it by those
who drafted, approved or enacted that document. This is
because the Constitution contains implications, inferences
and propositions as well as words, phrases and clauses.
Experience derived from the events that have occurred since
its enactment may enable to us to see more in the
combination of particular words, phrases or clauses or in the
document as a whole than would have occurred to those
who participated in the making of the Constitution. Thus we
see now, although it was not seen in 1901, that freedom of
communication on matters of government and politics is an
indispensable incident of the system of government created
by the Constitution and that the law of defamation must not
be inconsistent with that freedom. Similarly, we now see,
although it was probably not seen in 1901, that "industrial
disputes" can be manifested by unions serving logs of claim
on employers who reject them".
The notion that the word "sentences", or any other word in the
Constitution, is confined forever to its meaning in 1900 (or must be
ascertained solely according to the intention of the people of that time)
represents, in my view, an adolescent search for certainty of
constitutional concepts46.
It amounts to an attempt to confine the
Constitution to its meaning at the time when it was adopted. It overlooks
the essential character of a constitution as an instrument for ongoing
governance from generation to generation and age to age. In Re Wakim
I explained my own view of the proper approach to constitutional
interpretation47:
46
E W Thomas, "Judging in the Twenty-First Century" [2000] NZLJ
228 at 229.
47
(1999) 198 CLR 511 at 599-600 [186]-[187]; cf Grain Pool of
Western Australia v The Commonwealth (2000) 202 CLR 479 at
Footnote continues
26.
"I differ from the view that the function of the Court in
constitutional interpretation is to 'give effect to the intention
of the makers of the Constitution as evinced by the terms in
which they express that intention'. Once the makers' draft
was settled it was submitted to the vote of the electors of
Australia. Approved and enacted, it took upon itself its own
existence and character as a constitutional charter … The
makers did not intend, nor did they have the power to
require, that their wishes and expectations should control us
today who live under its protection. The Constitution is read
by today's Australians to meet, so far as the text allows, their
contemporary governmental needs".
So if this approach is adopted, what is its consequence for the
word "sentences" in s 73 of the Constitution? It would seem to follow
that the section would be freed from any historical limitations that its
apparent provenance in the Judicial Committee Act of 1844 might be
thought to require.
The meaning of the word "sentences" would no
longer be determined by that history or by whether (as seems unlikely)
the founders intended the word "sentences" to refer to the orders of nonexistent ecclesiastical (and possibly Admiralty or prize courts) courts.
The question becomes what the word is to be taken to mean in
contemporary expression, given its juxtaposition in s 73, with the other
forms of judicial determination referred to in the section 73 and the
objects of that section to provide a comprehensive procedure for
515 [90]; M D Kirby, "Constitutional Interpretation and Original
Intent: A Form of Ancestor Worship?" (2000) 24 Melbourne Uni L
Rev 1; J Stellios, "Brownlee v The Queen: Method in the Madness"
(2001) 29 Federal Law Review 321 at 323-325.
27.
appeals to the High Court from every form of judicial determination
throughout the nation.
No one questions that an appeal lies in fact from criminal
"sentences". Such appeals have been regularly brought to the High
Court. There has been an increasing number in recent years despite
Chief Justice Dixon's words in White48. Yet if such appeals are simply a
variety of the many appeals from the "judgments" or "orders" of Supreme
Courts or Federal Courts, they have no special place in the business of
the High Court. They are just further appeals from such "judgments" or
"orders".
Yet if, by the Constitution, a special jurisdiction is afforded to the
High Court of Australia as the text suggests, to "hear and determine
appeals from all … sentences" imposed by federal and state courts, a
different picture is arguably presented. It is one that appears to afford
the High Court of Australia a special constitutional function as the
48
See eg Lowe v The Queen (1984) 154 CLR 606; Kelleher v Parole
Board (NSW) (1984) 156 CLR 364; Chester v The Queen (1988)
165 CLR 611; Griffiths v The Queen (1989) 167 CLR 373; Pantorno
v The Queen (1989) 166 CLR 466; Hoare v The Queen (1999) 167
CLR 348; R v Paivinen (1985) 158 CLR 489; R v Watt (1998) 165
CLR 474; Mill v The Queen (1988) 166 CLR 59; Radenkovic v The
Queen (1990) 170 CLR 623; Anderson v The Queen (1993) 177
CLR 520; Dimozantos v The Queen [No 2] (1993) 178 CLR 122; R v
Shrestha (1991) 173 CLR 48; Postiglione v The Queen (1997) 189
CLR 295; AB v The Queen (1999) 198 CLR 111; Wangsiamos v
The Queen (1997) 190 CLR 378; Lowndes v The Queen (1998) 195
CLR 665; Siganto v The Queen (1998) 194 CLR 656; Ryan v The
Queen (2001) 75 ALJR 815; 179 ALR 193.
28.
national appellate court supervising "sentences" imposed throughout
Australia.
This conclusion would not suggest that the use of the word
"sentences" in s 73 constitutes the High Court a kind of general national
court of sentencing appeal. The language and context of s 73, taken as
a whole, emphasise the other large and general functions contemplated
for the Court. The requirements of special leave, the stated grounds for
such leave and of reasons to disturb the quasi discretionary
determinations that are involved in "sentences", still remain to be
accommodated. But at least the constitutional reminder that appeals lie
"from all … sentences" might serve as a useful corrective to any notion
that sentencing appeals are somehow beneath the dignity of the High
Court or unimportant in the hierarchy of its appellate concerns.
The primary responsibility for deciding sentencing appeals is, and
will remain, with the appellate courts below the High Court. The High
Court has, nonetheless, its own constitutional responsibility in respect of
such appeals.
This is clear whatever the meaning of the word
"sentences" in s 73 of the Constitution. Yet it would be even more clear
if, as I am inclined to believe, the word appearing in s 73 includes, and
refers primarily, to criminal "sentences", they being the only "sentences"
of relevance to Australia in the context as much in 1900 as today49.
49
cf Windsor v Boaden (1953) 90 CLR 345 at 347 per Dixon CJ;
Botany Municipal Council v Jackson [1985] NSWLR 1 at 13 per
Mahoney JA; R v Kakura (1990) 20 NSWLR 638 at 643-644 dealing
Footnote continues
29.
I would conclude with the words that I expressed in Crampton v
The Queen50:
"… [T]he Constitution having exceptionally (and somewhat
creatively) provided in terms for appeals against 'sentences'
it must be assumed that, by that provision, a large and novel
appellate power was afforded to [the High] Court in respect
of criminal appeals. It would be contrary to the applicable
tenets of constitutional construction now to impose a
limitation where nearly a century of experience has shown
such a limitation to be unnecessary and undesirable".
Some lawyers may be tempted to look down on sentencing
appeals as an unrewarding endeavour, unworthy of the time of a
national constitutional and appellate court. The use of the mysterious
word "sentences" in s 73 of the Australian Constitution serves to correct
such an elitist tendency and to demand that appeals from criminal
"sentences" occupy their proper space in the business and time of the
High Court.
The number of appeals in recent years involving sentencing
questions suggests that this is the way the High Court, without
necessarily saying so, now views the question. The Court's supervision
of such "sentences" may act as a useful contribution to uniform and
with the meaning of the word "sentence" in s 2 of the Criminal
Appeal Act 1912 (NSW); cf R v Warfield (1994) 34 NSWLR 200 at
205-206.
50
(2000) 75 ALJR 133 at 155-156 [121].
30.
principled treatment of the decisions of Australia's courts affecting a
most precious commodity in our society - the liberty and reputation of the
individual punished and sentenced following a criminal conviction.
THE MYSTERIOUS WORD "SENTENCES" IN
s 73 OF THE CONSTITUTION
The Hon Justice Michael Kirby AC CMG