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R v JS [2007] NSWCCA 272 (NSW Caselaw, AustLII)
10 September 2007

This was a decision of 5 judges. Spigelman CJ wrote the leading judgment (3 agreeing); Mason P wrote a concurring judgment that expanded on s 80 of the Constitution.

This was a Crown appeal against a directed verdict of acquittal. Like Leeth (1992) 174 CLR 455, it concerned the difficulties created by the 'autochthonous expedient' of investing State courts with federal jurisdiction. At common law there was never a right of appeal from a verdict of acquittal. Various State criminal appeal statutes now confer such a right. This case establishes that they are picked up as federal law by the general words of s 68(2) of the Judiciary Act. The appellant submitted that clear statutory language was required to displace the finality of an acquittal at common law. The respondent relied on Kim (1993) 65 A Crim R 278 (a decision of the Tasmanian Full Court).

The court was required to consider the irreducible content of the right to a 'trial by jury' found in s 80 of the Constitution. A related inquiry is the scope of the essential features of the 'criminal trial process', cf. X7 v Australian Crime Commission [2013] HCA 29 [97] - [101]. 

The verdict of acquittal was one of the last breaths of the doctrine that some decisions are so final that they cannot be challenged, even by the grant of a statutory right of appeal. The notion of double jeopardy has long inhibited the law from recognising rights of review. At common law, superior courts exercised review jurisdiction in civil cases long before they entertained the possibility even of granting a new trial: Orfield, History of Criminal Appeal in England (1936) 1 Mo L Rev 326, 328.



You should not rely on these case notes for any purpose. They contain my views at the time they were written. They do not represent my employer's views, and may be outdated or differ from my current views.