v. The King, (1907) 4 C.L.R., 1453; The King v. Neil, (1909) 8 C.L.R., 671; Hope v. The King, (1909) 9 C.L.R., 257.

Special leave will be granted in criminal cases only where questions of great public importance are involved: Connolly v. Meagher, (1906) 3 C.L. R., 682; Millard v. The King, (1906) 3 C. L. R., 827. It will not be granted from a decision of the Supreme Court quashing a conviction on a Crown case reserved, on the ground that the point upon which the decision went was not one of those specifically reserved at the trial, if that point appears clearly on the face of the case stated. Per GRIFFITH, C.J., Attorney-General of New South Wales v. Jackson, (1906) 3 C.L.R., 730. It will not be granted where the accused who had been acquitted in the Court below, is at most only technically guilty of the offence charged: Connolly v. Meagher, (1906) 3 C.L.R., 682. Nor on questions of fact: Bataillard v. The King, (1907) 4 C.L.R., 1282; Collis v. Smith, (1909) 9 C.L.R., 490; Sobye v. Levy, (1909) 9 C.L.R., 497.

In granting special leave to appeal in criminal cases the High Court will follow the practice of the Judicial Committee of the Privy Council, as expounded in Ibrahim v. The King, (1914) A.C., 599, and Arnold v. The King- Emperor, (1914) A.C., 644. So held by GRIFFITH, C.J., and BARTON, GAVAN DUFFY, POWERS and RICH, JJ. (ISAACS, J., dissenting): Eather v. The King, 20 C.L.R., 147.

Rule Re-stated.

In Re Eather v. The King, (1915) 20 C.L.R., 147, an application was made for leave to appeal against a conviction for assaulting a girl which conviction had been confirmed by the Court of Criminal Appeal in New South Wales. The majority of the High Court, GRIFFITH, C.J., BARTON, GAVAN DUFFY, POWERS and RICH, JJ. (ISAACS, J. dissenting) refused to grant leave.

The Chief Justice, Sir SAMUEL GRIFFITH said :-"We are of opinion that in granting special leave to appeal in criminal cases this Court should follow the practice of the Judicial Committee. That practice has lately been very fully expounded in the cases of Ibrahim v. The King, and Arnold v. The King-Emperor. We are also of opinion, upon examination of the facts of the present case, that it is one which, according to that practice, leave should not have been given."

Mr. Justice ISAACS delivered an elaborate judgment dissenting from the limitation of the discretion of the High Court involved in following the "artificial rules" laid down by the Privy Council : 19 C.L.R., at p. 413.

The case,

cannot

Subsequently (19th June, 1915), the Chief Justice (Sir SAMUEL GRIFFITH) made the following statement from the bench :-" Since the decision of the Court in Eather v. The King, it has been ascertained that the real practice as formulated in that case is interpreted by the members of the Court in different senses. therefore, for the future be regarded as an authority. As we interpret the Judiciary Act, section 35 (1) (b), the Court has an unfettered discretion to grant or refuse special leave in every case, but we think that the term 'special leave' connotes the necessity for making a prima facie case showing special circumstances. I speak for all the members of the Court, except my brother BARTON, who is absent from the Commonwealth": Eather v. The King, 20 C.L.R., 147.

Appeal in Criminal Cases after Acquittal by a Jury.

On the trial of Francis Hugh Snow at the Criminal Sessions of the Prison Court of South Australia, before Mr. Justice GORDON and a jury, on a charge of attempting to trade with the enemy contrary to the provisions of the Trading with the Enemy Act 1914, on various dates both before and after the passing of that Act, at the close of the evidence for the Crown the Judge held that the Act was not retrospective as to attempts to trade with the enemy and that, as to the attempts alleged to have taken place after the passing of the Act, there was no evidence to go to the jury. He thereupon directed the jury to find a verdict of "not guilty," which they did, and the accused was discharged. The Crown having applied for special leave to appeal to the High Court from the judgment of acquittal, or, alternatively, from the direction of the Judge, it was held by GRIFFITH, C.J. and GAVAN DUFFY, POWERS and RICH, JJ. (ISAACS and HIGGINS, JJ., dissenting), that special leave to appeal should be refused. By GRIFFITH, C.J., and GAVAN DUFFY and RICH, JJ., as to the judgment of acquittal, on the ground that, although under section 73 of the Constitution the High Court has jurisdiction to entertain an appeal from a judgment discharging an accused person, that section does not confer jurisdiction on the High Court to set aside a verdict of “not

guilty," so that, when, as in this case, the judgment properly followed the verdict, the granting of special leave to appeal would be futile. As to the direction of acquittal, leave was refused on the ground that it was not a judgment" from which under section 73 an appeal lies to the High Court. POWERS, J. held that, although under section 73 the High Court had jurisdiction to entertain an appeal from the judgment of acquittal, to set aside the verdict and to grant a new trial, the discretion to grant special leave to appeal should not in the circumstances be exercised. ISAACS and HIGGINS, JJ. held that leave might be granted: Musgrove v. McDonald, 3 C.L.R., 132, and Baume v. The Commonwealth. 4 C.L.R., 97, discussed. Special leave to appeal from the Supreme Court of South Australia (Gordon, J.), refused: The King v. Snow, F.C., (1915) 20 C.L.R., 315.

§ 128. "OF ANY OTHER COURT OF A STATE.”

The High Court has held that the words "Judgments . of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council" include judgments from which an appeal lay either with or without special leave of the Privy Council: Parkin v. James, (1905) 2 C.L.R., 315. But see, also, Kamarooka Gold Mining Co. No Liability v. Kerr, (1908) 6 C.L.R., 255.

§ 129. "OF THE INTER-STATE COMMISSION.”

Appeals from Inter-State Commission.

The words of this sub-section giving an appeal to the High Court for the judgments, decrees, orders and sentences of the Inter-state Commission do not necessarily imply that the Commission is a Court exercising judicial functions. The reference in a separate paragraph, section 73 (III.), to the Inter-state Commission, after the exhaustive words of paragraph (II.) which embrace all Courts other than the High Court, to which the High Court appellate jurisdiction extends, indicates that the Commission was not one of the Courts" within the meaning of "Chapter III., JUDICATURE" of the Constitution. Judicial power is undoubtedly conferred by sub-sections (III.) but that is in the High Court, and the jurisdiction to correct errors of law-similar to that of the English High Court in section 39 of the Act in Arlidge's Case, (1915) A.C., 120;-does not connote that the Commission is a Court,

any more than the local Government Board is a Court. First the word "order" applies as much to the order of a quasi judicial or administrative body as to a strict Court of law. Per ISAACS, J. in the State of New South Wales v. The Commonwealth, (1916) 20 C.L.R., at p. 87. See note to section 101.

§ 130. "FINAL AND CONCLUSIVE.”

Appeals from State Courts.

Notwithstanding section 106 of the New South Wales Justices. Act (No. 27 of 1902), which provides that on appeals by way of special case, stated for the opinion of the Supreme Court, the judgment of the Court shall be "final and conclusive," the High Court has jurisdiction, under section 73 of the Constitution, to hear and determine appeals from such judgments. Judgment of the Supreme Court, (1904) 4 S.R. (N.S. W.), 200, reversed; Peterswald v. Bartley, (High Court), (1904) 1 C.L.R., 497.

Appeal to Queen in Council.

74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits131 inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify132 if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court

to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

§ 131. "AS TO THE LIMITS INTER SE."

LEGISLATION.

JUDICIARY ACT (1903-1910), Sections 38A and 40A.

Removal of Constitutional Cases.

In October 1907, whilst the conflicting decisions of the High Court and the Privy Council in the Federal Income Tax Cases were under consideration the Parliament of the Commonwealth passed an Act amending the Judiciary Act by inserting the following new sections" In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States; so that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court": Judiciary Act 1903-1910, section 38A. "When, in any cause pending in the Supreme Court of a State, there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court. Thereupon the proceedings in the cause, and such documents, if any, relating thereto as are filed of record in the Supreme Court of the State, shall be transmitted by the registrar. prothonotary, or other officer of the Court, to the Registry of the High Court in the State; or if there are more registries than one in the State, to such registry as is prescribed by Rules of Court": Judiciary Act 1903-1910, section 40A (1), (2).