No Appeal against Acquittal by Jury.

In the prosecution of an indictment before a Judge of the Supreme Court of South Australia for attempting to trade with the enemy contrary to the provisions of the Trading with the Enemy Act (1914), the jury, by the direction of the presiding Judge, found a verdict of not guilty. Thereupon he entered a judgment of acquittal and the accused was discharged. The Crown applied to the High Court for special leave to appeal under section 73 of the Constitution from the judgment or alternatively from the direction of the Judge. It was held by the majority of the High Court, GRIFFITH, C.J. and GAVAN DUFFY, POWERS and RICH, JJ. (ISAACS and HIGGINS, JJ. dissenting) that special leave to appeal should be refused. The King v. Snow, (1915) 20 C.L.R., at p. 315.

In this case leave was 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; and, as to the direction of the learned Judge, on the ground that it was not a "judgment" from which under section 73 an appeal lies to the High Court. Mr. Justice POWERS based his decision on the ground 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 should not in the circumstances be exercised: 20 C.L.R., 315-316.

The Chief Justice (Sir SAMUEL GRIFFITH) said :The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language. Section 80 lays down as a fundamental law of the Commonwealth that the trial on indictment of offence.

any

against any of the laws of the Commonwealth shall be by jury The framers of the Constitution, the electors who accepted it, and the Parliament which enacted it, must all be taken to have been aware of the absolute protection afforded by verdict of not guilty under the common law of all the States. With this knowledge they thought proper to enact that any indictable offence that might be created by the new legislative authority established by the Constitution should also be tried by jury. The history of the law of trial by jury as a British institution (not forgetting the Act called Fox's Libel Act) is, in my judgment sufficient to show that this provision ought, prima facie to be construed as an adoption of the institution of" trial by jury " with all that was connoted by that phrase in constitutional law and in the common law of England. Per GRIFFITH, C.J., 20 C.L.R., at pp. 322-323.

Not Applicable to Territories.

66

The provisions of Chapter III. of the Constitution, including section 80, are limited in application to the exercise of the judicial power of the Commonwealth in respect of those functions of Government as to which it stands in the place of the States, and has no application to territories. Section 80, therefore, relates only to offences created by the Acts of Parliament passed in the execution of those functions which are aptly described as laws of the Commonwealth." The subordinate Legislature of a territory, such as Papua, can pass a law providing that the trial of persons of European descent charged with a crime punishable with death should be held before a jury of four persons, but that, save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore, be held without a jury." The King v. Bernasconi, (1915) 19 C.L.R., 633.

Section 80 of the Constitution is one of a fasciculus of sections collected in one chapter and united and inter-related as members of a distinct group under the title of The Judicature.' The whole judicial power of the Commonwealth proper is there dealt with. By force of the various sections of Chapter III., other than section 80, and aided by sub-section (XXXIX.) of section 51, Parliament might have enacted, or might have enabled Courts to provide by rules, that all offences whatever should be tried by a Judge or Judges without a jury. Section 80 places a limitation on that power. Neither Parliament nor Courts may permit such a trial. If a given offence it is not made triable on indictment at all, then section 80

does not apply. If the offence is so tried, then there must be a jury. But the provision is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community. And that is its sole operation. When the Constitution, however, reaches a new consideration, namely, the government of territory, not as constituent parts of the self-governing body, not, "fused with it " as I expressed it in Buchanan's Case, 16 C.L.R., 315, at p. 335, but rather as parts annexed to the Commonwealth and subordinate to it, then section 122 provides the appropriate grant of power": Per ISAACS, J. in The King v. Bernasconi, 19 C.L.R., at p. 637.

Consolidated Revenue Fund.

81. All revenues 146 or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

AUDIT ACT 1901-1909, Sections 36 AND 37.

Every appropriation made out of the Consolidated Revenue Fund for the service of any financial year shall lapse and cease to have any effect for any purpose at the close of that year. Any balance of the moneys so appropriated which may then be unexpended shall lapse and the accounts of the year shall be then closed. If the exigencies of the public service render it necessary to alter the proportions assigned to the particular items comprised under any subdivision in the annual supplies the Governor-General may, by order, direct that there shall be applied in aid of any item that may be deficient, a further limited sum out of any surplus arising on any other item under the same subdivision unless such subdivision shall be expressly stated to be "unalterable." Provision is made for the creation of a large number of trust accounts.

SURPLUS REVENUE ACT 1908.

Where any trust account has been established under the Audit Acts, and moneys have been appropriated by the Parliament for the purposes of the trust account, or for any purpose for which the trust account is established, the appropriation shall not lapse at the close of the financial year for the service of which it was made; and the Treasurer may in any year (subject to section 87 of the Constitution) pay to the credit of the trust account, out of the Consolidated Revenue Fund, such moneys as the GovernorGeneral thinks necessary for the purposes of the appropriation.

§ 147. "TO BE APPROPRIATED.”

Appropriation a Condition Precedent to an Action.

In the case of Cousins v. The Commonwealth, (1906) 3 C.L.R., 529, the plaintiff, a letter carrier, sued to recover £1 arrears of salary based on his alleged due and accruing rights under section 84 of the Constitution coupled with section 19 of the Victorian Public Service Act (1900). One of the defences pleaded was as follows:-" The defendant says. that the statement of claim is bad in law for that it is not herein alleged that the Commonwealth Parliament has appropriated any sum out of the consolidated revenue to pay the alleged salary claimed by the plaintiff. The defendant will rely upon section 78 of the Commonwealth Public Service Act 1902."

The case was decided against the plaintiff on another ground but referring to this defence the Chief Justice (Sir SAMUEL GRIFFITH) said:" The other question is whether the statement of claim is good. Section 78 of the Commonwealth Public Service Act 1902 provides in sub-section 1 that :- Nothing in this Act shall authorize the expenditure of any greater sum out of the consolidated revenue fund by way of payment of any salary than is from time to time appropriated by the Parliament for the purpose. In the statement of claim it is not alleged that any greater salary than that which the plaintiff has received was appropriated. If, therefore, his claim depends on that Act, it is a fatal objection that it does not appear that Parliament has provided any money for the payment of a greater salary. In the case of Bond v. The Commonwealth, 1 C.L.R., 13, quite different considerations arose. There the obligations which had been imposed upon the Commonwealth by the Constitution had not been altered; here the only claim of the plaintiff, if he

claims under the Commonwealth Public Service Act 1902, is such a right as that Act gives him, and it is a defence that no greater sum of money has been voted by Parliament.”

Expenditure charged thereon.

82. The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

Money to be appropriated by law.

83. No money shall be drawn 148 from the Treasury of the Commonwealth except under appropriation made by law.

But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.

§ 148. "NO MONEY SHALL BE DRAWN.”

LEGISLATION

AUDIT ACT 1901-1910.

No money can be drawn from the Commonwealth public account except in the manner prescribed by this Act. See Procedure defined in sections 32-37.

Transfer of officers.

84. When any department of the public service of a State becomes transferred 149 to the Commonwealth.