Fingleton v The Queen

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ

DIANE McGRATH FINGLETON  APPELLANT

AND

THE QUEEN  RESPONDENT

Fingleton v The Queen [2005] HCA 34

23 June 2005
B58/2004

ORDER

1.Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 26 June 2003 and in their place order:

(a)appeal allowed;

(b)conviction of the appellant quashed; and

(c)judgment and verdict of acquittal entered on both counts in the indictment. 

On appeal from the Supreme Court of Queensland

Representation:

B W Walker SC with S J Hamlyn-Harris for the appellant (instructed by Woods Prince Lawyers)

D F Jackson QC with M J Copley for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Fingleton v The Queen

Courts and judicial system – Magistrates – Judicial officers' immunities – Immunity conferred upon magistrates in the performance or exercise of an administrative function or power conferred under an Act – Appellant Chief Magistrate proposed to remove Co-ordinating Magistrate from that position – Whether immunity extends to a criminal charge against appellant of unlawful retaliation against a witness.

Criminal law – Unlawful retaliation against a witness – "Without reasonable cause" – Whether trial judge misdirected jury as to the meaning of "reasonable cause" in s 119B of the Criminal Code (Q) – Relevance of the meaning of the terms "detriment" and "retaliation" to an assessment of "without reasonable cause".

Constitutional law (Cth) – Federal judicial power – Appellate jurisdiction of the High Court – Criminal matter – Grounds of appeal – Point not taken at trial or before Court of Criminal Appeal – Whether new ground of appeal can be raised before the High Court – Whether following trial point waived or spent – Whether raising new ground deprives proceedings of the character of an "appeal" for purposes of s 73 of the Constitution.

Words and phrases – "appeal", "without reasonable cause", "detriment", "retaliation", "under an Act".

Magistrates Act 1991 (Q), ss 10, 21A.
Criminal Code (Q), ss 30, 119B, 620.
Constitution, s 73.

1. GLEESON CJ. The principal issue in this appeal concerns the protection and immunity conferred upon magistrates by s 21A[1] of the Magistrates Act 1991 (Q) ("the Magistrates Act"), which provides:

   "A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court."

   [1]Subsequent to the events that gave rise to these proceedings s 21A has been renumbered as s 51.  It is convenient to refer to the statutory provisions as they were in force at the relevant time.

2. In relation to criminal proceedings against a magistrate, the concluding words of that section direct attention to s 30 of the Criminal Code (Q) ("the Code"), which provides:

   "Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer's judicial functions, although the act done is in excess of the officer's judicial authority, or although the officer is bound to do the act omitted to be done."

3. The appellant was the Chief Magistrate in Queensland. Following a trial in the Supreme Court of Queensland, before Helman J and a jury, she was convicted of an offence against s 119B of the Code, which prohibits unlawful retaliation against a witness. An alternative charge of attempting to pervert the course of justice was not the subject of a verdict because of the conviction on the primary charge. The appellant was sentenced to a term of imprisonment. An appeal against conviction to the Court of Appeal of the Supreme Court of Queensland was dismissed[2].  The Court of Appeal reduced the appellant's sentence.  The custodial part of the sentence has been served.  

   [2]R v Fingleton (2003) 140 A Crim R 216.

4. At trial, and in the Court of Appeal, no point was taken concerning s 21A of the Magistrates Act, or s 30 of the Code. Those provisions were first raised by this Court when considering an application for special leave to appeal from the decision of the Court of Appeal. Special leave to appeal was granted.

5. In the Court of Appeal, there was only one ground of appeal. It is an element of the offence created by s 119B of the Code that the proscribed retaliatory conduct is engaged in without reasonable cause. The sole ground of appeal was that no reasonable jury could have found beyond reasonable doubt an absence of reasonable cause in the appellant's conduct. In this Court, seven grounds of appeal are pressed, one of which is the same as the ground considered by the Court of Appeal. The first ground is as follows:

   "The provisions of s 119B of the Criminal Code (Qld) did not apply to the actions of the appellant; having regard to the provisions of s 30 of the Code, and s 21A of the Magistrates Act 1991 (Qld)."

6. The respondent accepts that, if the proposition of law upon which that ground is based is correct, then the conviction was obtained in circumstances where there was no liability to conviction, and this Court would have power to set it aside.  Senior counsel for the respondent acknowledged that the immunity now relied upon by the appellant exists for the public benefit and not for the private advantage of magistrates, and that if it applied in the case of the appellant it could not be waived.  On that basis, the case being one in which the appellant may have had available to her a point of law which was a complete answer to both of the charges against her, the point may be raised for the first time in this Court, in accordance with the principles stated in Gipp v The Queen[3] and Crampton v The Queen[4].  The same cannot be said of the other new grounds of appeal, but they can be left aside at this stage.  It is appropriate to deal with the question of immunity first because, if the appellant's argument is correct, there should never have been a trial of the other issues in the case.

   [3](1998) 194 CLR 106.

   [4](2000) 206 CLR 161.

7. In order to place the allegations against the appellant in the appropriate context, it is necessary to begin by examining the functions and powers of the appellant under the Magistrates Act. It was her conduct in relation to those functions and powers that allegedly contravened s 119B of the Code, and also allegedly involved an attempt to pervert the course of justice. It is also necessary to take note of certain other features of the Magistrates Act, which formed part of the background to the appellant's conduct.

   The Magistrates Act

8. The following references are to the legislation in its form at the time of the alleged offences.  It has since been amended in certain respects.

9. The Magistrates Act is described in its long title as "[a]n Act relating to the office of Magistrates, the judicial independence of the magistracy, and for related purposes".

10. Part 2 of the Magistrates Act deals with the appointment, jurisdiction, and powers of magistrates. Section 4 states the qualifications for appointment, and s 5 provides for appointment, by the Governor in Council, of "as many Magistrates as are necessary for transacting the business of the Magistrates Courts." Before making a recommendation to the Governor in Council about an appointment, the Minister must first consult with the Chief Magistrate. Sub-sections (3) and (4) provide that the appointment of a magistrate must state the place where the magistrate is to sit and the period (not longer than five years) for which that determination is to apply, provided that the Chief Magistrate and the magistrate may agree upon a change of location before the expiration of such period. Section 7 provides:

    "A Magistrate may exercise, throughout the State, all the jurisdiction, powers and functions conferred on a Magistrate, or on 2 justices, by or under any law of the State."

    No doubt the words "throughout the State" explain the purpose of the provision, which is related to concepts of territorial limitations of jurisdiction that were still reflected in the Justices Act 1886 (Q) ("the Justices Act") in the form it took in 2002. Section 19 of the Justices Act referred to the exercise of summary jurisdiction in certain circumstances by two or more justices.

11. Part 3 of the Magistrates Act deals with the Chief Magistrate. Section 10, which describes the functions of the Chief Magistrate, provides:

    "10.     (1)      The Chief Magistrate is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts.

    (2)      Subject to this Act and to such consultation with Magistrates as the Chief Magistrate considers appropriate and practicable, the Chief Magistrate has power to do all things necessary or convenient to be done for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts, including, for example –

    (a)determining the Magistrates who are to constitute Magistrates Courts at particular places appointed under section 22B(1)(c) of the Justices Act 1886 or who are to perform particular functions; and

    (b)issuing directions with respect to the practices and procedures of Magistrates Courts; and

    (c) allocating the functions to be exercised by particular Magistrates; and

    (d)nominating a Magistrate to be a supervising Magistrate or a coordinating Magistrate for the purpose of the allocation of work of the Magistrates Court.

    (3)Subsection (2) does not authorise the Chief Magistrate to promote a Magistrate.

    (4)        The Chief Magistrate must not make a determination under subsection (2)(a) about the place at which a magistrate is to constitute a Magistrates Court unless the Chief Magistrate –

    (a)first –

    (i)consults with the magistrate; and

    (ii)gives the magistrate written notice of the proposed maximum period that the magistrate is to constitute a Magistrates Court at the place; and

    (b)has sufficient and reasonable regard to the magistrate's personal circumstances and all other relevant considerations.

    (5)        The Chief Magistrate must give a magistrate written notice of a determination under subsection (2)(a) stating –

    (a)the place the magistrate is to constitute a Magistrates Court; and

    (b)the period the magistrate is to constitute the Magistrates Court at the place; and

    (c)the reasons for the determination.

    (6)However, subsection (4) does not apply if –

    (a)because of urgent circumstances, the Chief Magistrate makes a determination (a 'temporary determination') under subsection (2)(a) about the place at which a magistrate is to constitute a Magistrates Court; and

    (b)under the temporary determination, the magistrate is to constitute a Magistrates Court at the place for no longer than 3 months.

    (7) To remove doubt, it is declared that subsection (4) does not affect a condition of appointment or agreement under section 5(3) or (4).

    (8)        The Chief Magistrate may discipline by way of reprimand a magistrate who, to the Chief Magistrate's satisfaction –

    (a)is seriously incompetent or inefficient in the discharge of the administrative duties of office; or

    (b)is seriously negligent, careless or indolent in the discharge of the administrative duties of office; or

    (c)is guilty of misconduct; or

    (d)is absent from duty without leave or reasonable excuse; or

    (e)wilfully fails to comply with a reasonable direction given by the Chief Magistrate or a magistrate authorised to give the direction; or

    (f)is guilty of conduct unbecoming a magistrate.

    (9)        If action is contemplated under subsection (8)(d), the Chief Magistrate may appoint a medical practitioner to examine and report on the mental and physical condition of the Magistrate, and may direct the Magistrate to submit to the examination.

    (10)      If the Chief Magistrate reprimands a Magistrate, the Chief Magistrate must immediately submit a written report on the matter to the Minister.

    (11)      Action taken by the Chief Magistrate under subsection (8) does not affect the operation of sections 15 and 17."

12. Section 10(2) is of central importance in the present case. At the appellant's trial, Helman J directed the jury that, in the context of s 10(2), nominating a supervising or coordinating magistrate effectively meant appointing a magistrate to that position. That was not in dispute. By virtue of s 25(1) of the Acts Interpretation Act 1954 (Q), a power to appoint includes a power to remove or suspend. It was a demand by the appellant made to a coordinating magistrate that he show cause why he should not be removed from that position that constituted the conduct of the appellant which gave rise to the charges against her. The principal question for decision is whether that conduct was "in the performance or exercise of an administrative function or power conferred on the magistrate under an Act" within the meaning of s 21A of the Magistrates Act.

13. As will appear from a recital of the facts, sub-ss (2)(a), (4), (5) and (6) are relevant to an understanding of the background to the appellant's dealings with the coordinating magistrate in question, as are the provisions of Pt 4 of the Magistrates Act. Section 22B of the Justices Act provided for the appointment of districts, and divisions of districts, for the purposes of Magistrates Courts, and for the appointment of places for the holding of Magistrates Courts. Magistrates were empowered to sit at more than one place (s 22B(1A)).Subject to the provisions of s 5 of the Magistrates Act, the Chief Magistrate's responsibilities included the assigning of magistrates to localities throughout the State of Queensland. Obviously, the discharge of that responsibility involved decisions that could affect magistrates significantly. The evidence showed that there was a history of tension between the Chief Magistrate, and her predecessor, on the one hand, and some individual magistrates and the Magistrates Association on the other hand, about that issue. There had been a series of administrative law challenges to such decisions. Part 4 evidently was a legislative response to the problem.

14. Part 4 established a judicial committee to review certain determinations of a Chief Magistrate at the request of a magistrate aggrieved by a reviewable determination (ss 10A, 10B). A "reviewable determination" included a determination under s 10(2)(a) about the place at which a magistrate was to constitute a Magistrates Court (s 3). The members of the committee were to be the Chief Justice of the Supreme Court or a judge of the Supreme Court nominated by the Chief Justice, the Chief Judge of the District Court or a District Court judge nominated by the Chief Judge, and another judge nominated by the Chief Justice (s 10C). The committee was to consider the merits of a reviewable determination and either affirm it or substitute its own determination (s 10E). The committee could determine its own procedures, and the Chief Justice was empowered to issue directions as to procedures (s 10F). The events that gave rise to this case arose out of a magistrate's request for review of a determination by the appellant under s 10(2)(a). The Chief Justice issued a direction that evidence in the proceedings was to be given by affidavit. It was the appellant's response to the making of an affidavit by a coordinating magistrate that resulted in the charges against her.

15. Parts 5 and 6 are presently immaterial. Part 7 contains general provisions including provisions relating to terms and conditions of what was described as the "employment" of magistrates (s 18). It includes s 21A, which appears at the commencement of these reasons. Section 21A was introduced by the Justice Legislation (Miscellaneous Provisions) Act (No 2) 1999 (Q). By the same legislation, the District Court Act 1967 (Q) was amended by the insertion of s 28AA, which provided that a judge has, in the performance or exercise of an administrative function or power conferred on the judge under an Act, the same protection and immunity as a judge in a judicial proceeding in the court. The Explanatory Notes stated:

    "Clause 18 [of the Bill] inserts a new s 28AA granting protection and immunity to a judge of District Courts following concern that was expressed by judges about the potential personal liability of judges who authorise the use of surveillance and listening devices and perform or exercise other administrative functions or powers conferred on them under an Act.  In the absence of any specific legislative provisions, judges are exposed to potential personal liability.  Federal judges exercising these functions and powers are granted immunity in like situations.  Accordingly, the amendment provides the same protection and immunity to judges in the performance or exercise of administrative functions as they have in judicial proceedings in their courts."

    The facts

16. The appellant's predecessor as Chief Magistrate was Mr Deer. One of the coordinating magistrates nominated by the appellant under s 10(2)(d) of the Magistrates Act was Mr Gribbin, a magistrate at Beenleigh. The position carried with it an annual allowance of $2,000. In September 2002, Mr Gribbin was also Vice-President of the Magistrates Association.

17. On 16 July 2002, the appellant determined that a magistrate, Ms Thacker, should be transferred to Townsville.  On 30 July 2002, Ms Thacker filed an application for a review of that determination by the judicial committee.  Ms Thacker wrote to the Magistrates Association seeking assistance with her application.  In particular, she sought information and evidence relating to the history of transfers of magistrates.  On 12 August 2002, Mr Gribbin provided an affidavit to Ms Thacker's solicitors for use in the review proceedings.  A copy was given to the appellant's solicitors on 16 August 2002.  The appellant made an affidavit in reply on 30 August 2002.  In early September 2002, there was friction between the appellant and Mr Gribbin concerning the matter of the agenda for a meeting of coordinating magistrates which was due to take place on 19 September 2002.

18. On 18 September 2002, the appellant sent Mr Gribbin by email a letter calling on him to show cause why she should not exercise her power to withdraw his nomination as a coordinating magistrate and thereby remove him from that position.  The day before she sent the letter the appellant obtained legal advice from a solicitor, Mr Searles, who had been retained by the Crown Solicitor to advise the appellant.  The appellant showed Mr Searles a draft of a letter which, if sent, would have removed Mr Gribbin.  Mr Searles advised that the letter be altered to give Mr Gribbin an opportunity to show cause why he should not be removed.  The material parts of the letter were as follows:

    "Could you also explain to me why you sought [sic] fit to supply an affidavit in the matter of Ms Thacker's Review of my decision to transfer her to Townsville.  You were critical in it of both Mr Deer and myself in relation to transfer matters.  Is this a matter which you feel should be discussed by you in an affidavit before the Judicial Committee, when you have never raised it with me personally or at a Co-ordinating Magistrate's meeting?

    In the circumstances, I feel that I do not have your confidence in my leadership abilities.  No other magistrate, certainly not a co-ordinating magistrate has seen fit to enter into any such matters.  In fact, in the matter of Payne v Deer, I specifically refused to supply an affidavit to Ms Payne's Solicitors because of the need to be seen not to be in dispute with the then Chief Magistrate.

    Further, you circulated all other co-ordinating magistrates (except Mr Hine and with no reference to myself), in relation to a proposed agenda item for the forthcoming co-ordinating magistrates meeting.  The agenda is, in the end, a matter for my discretion, following consultation with the other Co-ordinating magistrates.  No-one put to me that such an item should not be on the agenda.  I consider that action on your part, again, to be disloyal to the leadership of the magistracy and disruptive of the morale of the magistracy.

    The position of Co-ordinating Magistrate in the Queensland Magistracy is a privileged position.  I regularly meet with all Co-ordinating Magistrates who give input into the administration of the courts.  Whilst constructive criticism will always be appreciated, there must be loyalty to the Chief Magistrate.  As stated, you sought to agitate a view about an item on the agenda for the meeting beginning tomorrow, without my knowledge.

    This and the other example I refer to above, manifest to me a clear lack of confidence by you in me as Chief Magistrate.  In the circumstances, I ask you to show cause, within seven days, as to why you should remain in the position.

    In the circumstances, it is not appropriate that you attend the Co-ordinating Magistrates meeting this Thursday and Friday at Central Courts."

    CriminalCode, s 119B

19. Section 119B of the Code provides:

    "A person who, without reasonable cause, causes, or threatens to cause, any injury or detriment to a judicial officer, juror, witness or a member of the family of a judicial officer, juror or witness in retaliation because of –

    (a)anything lawfully done by the judicial officer as a judicial officer; or

    (b)anything lawfully done by the juror or witness in any judicial proceeding;

    is guilty of a crime.

    Maximum penalty – 7 years imprisonment."

20. The offence involves causing or threatening harm by way of retaliation without reasonable cause.  In the conduct of the present case at trial, the elements of retaliation and of absence of reasonable cause were treated as being separate, but related factually.  Ordinarily, causing or threatening harm to a witness in retaliation because of something lawfully done by the witness in judicial proceedings would also be without reasonable cause.  It is not mere retaliation that attracts the operation of the section.  It is causing or threatening injury or detriment in retaliation because of something lawfully done.  The occasions on which there would be reasonable cause for such conduct might, in practice, be relatively rare.  The qualification, "without reasonable cause", is not related to purely objective conduct.  It is related to purposive conduct, that is to say conduct causing or threatening harm in retaliation for lawful conduct by a judicial officer, juror, or witness.  As will appear, in the way in which the prosecution and defence cases were conducted at trial, the question of how s 119B operates in a situation where, objectively, there may have been reasonable cause to take or foreshadow some action which would involve detriment, but subjectively a threat was made for the retaliatory purpose described in the section, was not a subject of argument.  Nor was it a subject of argument in the Court of Appeal.

    The issues at trial and in the Court of Appeal

21. The trial at which the appellant was convicted was a second trial, which followed immediately an earlier trial at which the jury could not agree upon a verdict.

22. Before the first trial there was a directions hearing. Section 592A of the Code provides:

    "(1)     If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial.

    (2)      Without limiting subsection (1) a direction or ruling may be given in relation to –

    (a)the quashing or staying of the indictment; or

    ...

    (e)deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted."

23. No mention was made, either at the directions hearing, or at the trial, of s 21A of the Magistrates Act or s 30 of the Code. No application was made to quash or stay the indictment. The form of the indictment was such that, on its face, it simply alleged a breach of s 119B without revealing any facts relevant to the application of s 21A or s 30. However, at the directions hearing, counsel and the trial judge discussed particulars of the indictment that had been furnished by the prosecution. It is evident, from the record of the directions hearing, that the facts relevant to an argument based on s 21A and s 30 either appeared from those particulars or were agreed between the parties. It was common ground that the appellant was Chief Magistrate, that Mr Gribbin was a coordinating magistrate, that Mr Gribbin had furnished an affidavit to the judicial committee in support of an application by another magistrate for a review of a determination by the appellant under s 10(2) of the Magistrates Act, that the appellant had sent Mr Gribbin the letter of 18 September 2002, and that it was her conduct in so doing that constituted the alleged contravention of s 119B and the alleged attempt to pervert the course of justice. If the appellant's present argument is correct, then it was only necessary to identify her functions and powers under the Magistrates Act in order to reach the conclusion that she could not be held criminally responsible for the conduct in question. There was no fact in issue requiring the decision of a jury.

24. At the directions hearing, counsel for the appellant, after referring to the particulars furnished by the prosecution, said:

    "But apart from ... facts [about the relationship between the appellant and Mr Gribbin] that put the letter [of 18 September] in context, it would seem the only issues at the trial – the only substantial issues will be the purpose with which she sent the letter on the 18th of September, her intent in sending the letter, and whether there was reasonable cause with respect to the first charge.  There are other issues but it would seem on the facts that we have there's not going to be much in contention.  They will be the central issues."

25. At the trial, at the conclusion of the case for the prosecution, counsel for the appellant opened the defence case to the jury, and then called the appellant as his first witness.  The opening was consistent with what had been said at the directions hearing.  The appellant gave evidence about the matters referred to in the letter of 18 September, and the advice she received from Mr Searles about the draft letter.  She denied that she sent the letter with intention of deterring Mr Gribbin and other magistrates from supporting Ms Thacker's case.  When asked why she sent the email, she said that there had been friction between her and Mr Gribbin, that she was surprised and hurt by what she regarded as the unfair criticisms of her contained in his affidavit, that she needed the confidence and loyalty of a person in his position, and that his conduct showed she did not have that confidence and loyalty.  She denied "absolutely and unequivocally" that she sent her letter "as a payback" for Mr Gribbin's support of Ms Thacker.

26. In his final address to the jury, counsel for the appellant identified "three matters in dispute:  whether what [the appellant] did was to threaten to cause a detriment, whether it was a detriment; whether it was done without reasonable cause; and whether it was done in retaliation."  As to the question of reasonable cause and retaliation, counsel invited the jury to consider a number of matters, including the Chief Magistrate's need to have a good working relationship with a coordinating magistrate.  Counsel for the prosecution contended that the threat to remove Mr Gribbin implicit in the requirement to show cause was an abuse of power.  It was not made because of any lack of competence or an inability to perform his duties.  Counsel for the prosecution invited the jury to find that "[the appellant] just wanted to humiliate [Mr Gribbin], strip him of that job as a payback and as an example to anyone minded to do anything similar."  She argued that "it is unreasonable in the extreme to retaliate against someone who is only telling the truth, who is only giving everything they know in an affidavit to a Judicial Committee to assist that Judicial Committee to do justice between the parties who are the litigants before it."

27. In summing-up, the trial judge told the jury that the prosecution had to establish beyond reasonable doubt "that the accused made the threat to Mr Gribbin in retaliation – that is, as a repayment in kind, or requital, or reprisal – because of his providing the affidavit as he was entitled in law to do."  The prosecution case, the judge said, was that the accused was a vengeful person and "that the accused wanted to humiliate Mr Gribbin for providing the affidavit, as a payback, as a punishment, and ... to deter others from doing such a thing."  At the conclusion of the summing-up, neither counsel sought any redirections or made any complaint about the way the issues were left to the jury.

28. The sole ground of appeal against conviction to the Court of Appeal was that no reasonable jury could have found beyond reasonable doubt an absence of reasonable cause.  As the case was conducted at trial, there was a strong relationship between the issues of retaliation and reasonable cause.  This was reflected in the Court of Appeal's statement:

    "The prosecution case at the trial was that the appellant's claim that in sending the email she was acting to resolve a breakdown in their working relationship was a contrivance designed to conceal her true purpose, which was to 'pay back' or exact retribution from Mr Gribbin for having provided the affidavit in the Thacker application."

29. The Court of Appeal analysed the evidence in the light of the way the trial had been conducted, and the issues as left to the jury.  Bearing in mind that there was no criticism, either at trial or on appeal, of the trial judge's directions, that is not surprising.  The members of the Court of Appeal (McPherson, Davies and Williams JJA) expressed their conclusion by saying that they had "satisfied themselves that on the evidence it was objectively open to the jury to decide that the appellant acted as she did with a view to punishing Mr Gribbin rather than resolving any difficulty supposed to exist between them of working together in performing their respective functions." 

30. It would have been possible for both the prosecution and the defence cases to have been framed in a more complex fashion.  At one point in his final address to the jury, counsel for the appellant appeared to accept that, on the retaliation issue, the prosecution only had to prove that retaliation was one of the reasons for the appellant's conduct.  That, however, was not the way the case for the prosecution was put.  The prosecutor made a blunt accusation that retaliation was the reason for the conduct, and that is how the trial judge left the case to the jury.  Similarly, from the defence point of view, it might have been possible to go into greater detail about the administrative complexities facing the appellant, and the context of workplace relations in which she had to resolve her dispute with Mr Gribbin.  At an appellate level, it may often appear that the issues at a jury trial have been over-simplified.

31. In considering the way the prosecution case was put, it is important not to overlook the fact that there were two charges against the appellant.  No verdict was taken on the charge of attempting to pervert the course of justice, because it was an alternative to the first charge.  Even so, the presence of the alternative charge probably explains the view of the facts for which the prosecution contended.  There was no suggestion, either in the addresses by counsel or in the summing-up, that the prosecution case as to the appellant's intention in sending the letter to Mr Gribbin was put in alternative ways, or that the jury were being invited to consider a number of different possibilities.  The allegation was that the appellant just wanted to humiliate and punish Mr Gribbin, thereby exacting retribution against him and at the same time sending a message to other magistrates as to what might happen to them if they crossed the Chief Magistrate, and in particular if they supported Ms Thacker's case against the Chief Magistrate.  The allegation was that this was purely a matter of "payback" and was not in any respect a bona fide attempt to resolve an administrative problem that had arisen within the court.  Neither side put to the jury an intermediate possibility, such as that the appellant might have had both a genuine purpose of resolving an administrative issue that arose out of a breakdown of her relations with Mr Gribbin, but at the same time a desire to exact retribution for his support for Ms Thacker and to assert her authority as a warning to other potentially rebellious magistrates.  Because of the way the case was fought, the trial judge was not asked to give any directions, and gave no directions, to the jury as to the legal consequences of such a view of the facts.  On the s 119B charge, the prosecution case was that the resolution of an administrative problem resulting from a breakdown in personal relations was no part of the true explanation for the appellant's conduct, and was therefore irrelevant to the question whether she acted without reasonable cause.  There is a legal proposition, or assumption, involved in that, but it was not the subject of argument.  The defence case was that a desire to deal with such a problem was the sole explanation of the appellant's conduct, and therefore she acted with reasonable cause.  Those competing approaches were consistent with the approaches taken with respect to the charge of attempting to pervert the course of justice.  If the appellant had argued that, even if the prosecution view of the facts were true, she had a legal answer to the s 119B charge because objectively there was cause to consider Mr Gribbin's removal, even if it were not an operative cause of her conduct, that would still have left the alternative charge to be answered.  Furthermore, if the appellant were now to be permitted to raise such an argument in this Court, success on that point alone would ordinarily result in an order for a new trial, since there has never been a verdict on the second count.

    CriminalCode, s 30

32. The criminal law of Queensland was codified in 1899.  Save for the fact that it is now expressed in gender-neutral terms[5], s 30 remains in its original form. The section is concerned with criminal responsibility, not with civil liability. The Code defines "criminal responsibility" to mean "liability to punishment as for an offence"[6].  Thus, the provision that a judicial officer is not criminally responsible for anything done or omitted to be done in the exercise of the officer's judicial functions means that a judicial officer does not commit an offence, and is not liable to punishment, by reason of an act or omission that falls within the section.

    [5]As authorised by ss 7 and 24 of the Reprints Act 1992 (Q).

    [6]CriminalCode, s 1.

33. The opening words of s 30 contain an important qualification to the immunity. Section 120 of the Code, which refers in terms to conduct on the part of a holder of judicial office, exposes judicial officers to criminal punishment for various forms of corruption. That qualification is consistent with the common law[7]. Section 136 is another example of an express provision of the kind referred to in s 30. However, neither s 119B, nor s 140 (which deals with attempting to pervert the course of justice), contains the explicit language necessary to engage the qualification to s 30. It was not suggested in argument that the introductory qualification to s 30 touches the present case.

    [7]Sirros v Moore [1975] QB 118 at 132 per Lord Denning MR.

34. The Code now defines "judicial officer". The definition was inserted, with effect from 19 July 2002, by the Criminal Law Amendment Act 2002 (Q). The Explanatory Notes to the Bill said: "A new definition of 'judicial officer' is now included. As well as judges or magistrates the definition of 'judicial officer' includes members of tribunals, persons conducting hearings of the Crime and Misconduct Commission, arbitrators and umpires." That reflects the view, which was common ground in this appeal, that, from the outset, "judicial officer" in s 30 included magistrates. In any event, it certainly included magistrates by September 2002. In dealing generally, and in the same manner, with all "judicial officers", s 30 put aside distinctions between various levels in the judicial hierarchy which existed at common law in relation to judicial immunity. Those distinctions attracted strong criticism in the United Kingdom from the Court of Appeal in Sirros v Moore[8] and the House of Lords in In re McC (A Minor)[9].  Section 30 treats all judicial officers in the same way, and confers immunity from criminal responsibility for acts or omissions by the judicial officer in the exercise of the officer's judicial functions, even where an act done is in excess of authority, or an officer is bound to do an act omitted.

    [8][1975] QB 118.

    [9][1985] AC 528.

35. The immunity provided by s 30 is limited, not only by the introductory words of the section, but also by the words which confer the immunity. It applies only to acts or omissions in the exercise of judicial functions, although conduct in excess of authority has the benefit of the protection. The Code's use of the words "excess of authority" reflects what courts applying the common law have held to be the sense in which "jurisdiction" is used in the context of judicial immunity, that is to say, "the broad and general authority conferred upon [a judicial officer's] court and upon [the judicial officer] to hear and to determine issues between individuals or between individuals and the Crown."[10]

    [10]Nakhla v McCarthy [1978] 1 NZLR 291 at 301.

36. We are concerned with the application of the Code, not the common law. Even so, it is material to note the policy of the common law, reflected also in the Code. Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore[11]:

    "Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him.  The words which he speaks are protected by an absolute privilege.  The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him.  No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action."

    [11][1975] QB 118 at 132.

37. An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority.  In In re McC (A Minor)[12], Lord Bridge of Harwich said:

    "It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages.  If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say:  'That is a perverse verdict', and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass.  But, as Lord Esher MR said in Anderson v Gorrie[13]:

    'the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith.  By the common law of England it is the law that no such action will lie.'"

    [12][1985] AC 528 at 540.

    [13][1895] 1 QB 668 at 670.

38. This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest.  It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour.  As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White[14], that Court on a number of occasions has "emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have."  She said that "[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits."

    [14]484 US 219 at 226-227 (1988).

39. This does not mean that judges are unaccountable.  Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions.  Their decisions routinely are subject to appellate review, which also is conducted openly.  The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament.  However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

40. The same considerations lie behind immunity from criminal responsibility, of the kind and to the extent conferred by s 30 of the Code. At common law, judicial officers enjoy no immunity or protection from criminal responsibility for their extra-judicial conduct, and even in respect of their judicial conduct there are well-established limits to their immunity. Judicial corruption of the kind dealt with in s 120 of the Code is an obvious example. Subject to those limitations, however, the public policy which supports immunity from civil liability even in respect of conduct alleged to be malicious and lacking in good faith extends to immunity from criminal responsibility. In Yeldham v Rajski[15], a litigant charged a judge with contempt of court (a criminal offence) alleging that the judge knowingly and wilfully abused the process of the court and interfered with the course of justice.  The allegations arose out of the way in which the judge had disposed of an application for leave to prosecute a witness for perjury.  The New South Wales Court of Appeal dismissed the proceedings, on the ground that the judge was entitled to invoke judicial immunity.  Hope A-JA, with whom Priestley JA agreed, said[16]:

    "The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges.  It is a policy designed to protect the citizen and not merely to give protection to judges.  As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings.  ...  If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, the independence required of judges would be greatly eroded."

    [15](1989) 18 NSWLR 48.

    [16](1989) 18 NSWLR 48 at 69.

41. Because the present case does not fall to be determined under the common law, it is unnecessary to explore the precise boundaries of the common law immunity from criminal responsibility in the exercise of judicial functions[17]. The boundaries of the immunity given by s 30 of the Code are to be found in the language of the section. It was not argued that the allegations of bad faith and malice made against the appellant in the conduct of the case against her at trial, if accepted, would defeat what would otherwise be the operation of s 30, either alone or as picked up by s 21A of the Magistrates Act. Nor are we concerned with the kind of issue that arose on the facts of Yeldham v Rajski, concerning the dividing line between the exercise of judicial and administrative or ministerial functions. Some of the powers conferred by s 10 of the Magistrates Act may be so closely allied to the adjudicative function that they ought not to be regarded as purely administrative. It is unnecessary to consider whether s 30 alone would extend to the exercise of such powers because, for the reasons given below, they are covered by s 21A of the Magistrates Act.

    [17]See Olowofoyeku, Suing Judges:  A Study of Judicial Immunity, (1993) at 74-77.

    Magistrates Act, s 21A

42. This section provides that in performing or exercising an administrative function or power conferred under an Act, a magistrate has the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court. Where what is involved is alleged criminal responsibility, the protection and immunity of a magistrate in judicial proceedings is that conferred by s 30 of the Code. Section 30 means that a magistrate is not criminally responsible for anything done by the magistrate in the exercise of the magistrate's judicial functions, although the act done is in excess of the magistrate's judicial authority. By conferring the same protection and immunity in respect of administrative functions or powers, s 21A has the consequence that a magistrate is not criminally responsible for anything done or omitted to be done by the magistrate in the exercise of an administrative function or power conferred on the magistrate under an Act, although the act done is in excess of the magistrate's administrative authority. This, of course, is subject to the qualification contained in the opening words of s 30: "[e]xcept as expressly provided by this Code".

43. The legislative history of s 21A has been referred to above.  A similar legislative provision applies to judges.  While the legislative changes do not appear to have been directed solely to criminal responsibility, and the Explanatory Notes relating to District Courts spoke of "the potential personal liability of judges" in general terms, they embraced the matter of criminal responsibility, and proceeded from a concern that, because judicial officers were given by legislation some responsibilities that might be regarded as administrative rather than judicial, the immunity conferred by s 30 required expansion.  The particular subject that raised concern was the exercise of power to authorise the use of surveillance and listening devices.  It was pointed out that federal judges, exercising that power, had an immunity, and it was considered necessary that State judicial officers should be in the same position.  While that was the matter that prompted legislative consideration of the wider topic, it is clear that s 21A extends beyond the function of authorising the use of surveillance and listening devices, to all administrative functions or powers conferred on a magistrate under an Act.

44. In the absence of s 21A of the Magistrates Act, there might have been room for argument about whether s 30 applied to one of the most common of the functions of a magistrate, that is to say, deciding, when a person is charged with an indictable offence, whether the person should or should not be committed for trial. It has often been held that this "is essentially an executive and not a judicial function"[18].  On the other hand this Court, in R v Murphy[19], described the function as sui generis, and as having the closest, if not an essential, connexion with an actual exercise of judicial power.

    [18]Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 at 146 per Jordan CJ.

    [19](1985) 158 CLR 596 at 616.

45. That question apart, there are many examples of Queensland statutes which confer on magistrates functions or powers that are commonly described as administrative rather than judicial.  The following examples were given in argument.  It is common for statutes to confer on a magistrate the power to issue a search warrant.  We were informed that, in 2002, there were 78 such statutes in Queensland.  The Assisted Students (Enforcement of Obligations) Act 1951 (Q) empowered magistrates to approve the execution of a contract by a minor. Under the City of Brisbane Act 1924 (Q) a magistrate sits on an employment appeals tribunal. Magistrates have supervisory responsibilities under the Community Services (Aborigines) Act 1984 (Q). Under the Police Powers and Responsibilities Act 2000 (Q), a magistrate may extend the prescribed detention period for the purposes of questioning a suspect. No doubt many other examples could be found.

46. It is not for this Court to decide the wisdom or fairness of the legislative policy that led the Queensland Parliament to extend the ambit of the immunity from criminal responsibility conferred by s 30; and this case is not concerned with immunity from civil liability. The respondent accepts, as a general proposition, that the protection and immunity contemplated by s 21A of the Magistrates Act adapts, to certain administrative functions and powers, the protection conferred by s 30 of the Code. That adaptation could give rise to problems that do not exist in the present case. Whether particular conduct is properly characterised as being in the performance or exercise of an administrative function or power, or whether in a given case it should be seen as a purely personal escapade, may be an issue. It is not an issue in this case. If s 21A otherwise applied to the conduct of the appellant, the conduct that gave rise to the charges against her (calling upon Mr Gribbin to show cause why he should not be removed as a coordinating magistrate) was conduct in the exercise of a power conferred on the appellant, that is to say, the power to nominate and remove coordinating magistrates.

47. The argument for the appellant in this Court was that s 10 of the Magistrates Act conferred on the appellant as Chief Magistrate a series of administrative functions and powers, that she acted in the performance or exercise of those powers, that she had the same protection and immunity as she had in the exercise of her judicial functions, and that, except as expressly provided by the Code, she was not criminally responsible for anything done by her in the exercise of her administrative functions, even if the act done was in excess of her administrative authority.

48. The argument for the respondent turned upon a question of construction of s 21A and, in particular, the words "administrative function or power conferred on [a] magistrate under an Act". The respondent submitted that those words did not cover s 10 of the Magistrates Act itself. The argument called in aid two considerations: one textual; the other related to the rationale of immunity.

49. The Magistrates Act is not itself the source of the civil or criminal jurisdiction exercised by magistrates. Section 7, to which reference has already been made, empowers a magistrate to exercise, throughout the State of Queensland, all jurisdiction, powers and functions conferred on a magistrate by or under any law of the State. Leaving to one side s 10, which is the focus of the present argument, the Magistrates Act does not itself confer jurisdiction, powers and functions on magistrates generally. They are to be found in other legislation.

50. When s 21A refers to "an administrative function or power conferred on the magistrate under an Act" then, beyond question, it is referring, at least in part, to functions or powers conferred under other Acts. The Magistrates Act does not provide, as does s 2(2) of the Acts Interpretation Act 1954 (Q), that in the Magistrates Act "a reference to 'an Act' includes a reference to this Act." The question is left open, and is not resolved by ss 6 and 7 of the Acts Interpretation Act. The functions and powers conferred on the Chief Magistrate by s 10 are the only administrative functions and powers conferred on a magistrate by the Magistrates Act itself. According to the submission for the respondent, they are not the kinds of administrative functions and powers in contemplation in s 21A. There is, it is said, a textual uncertainty as to whether the words "under an Act" mean "under an Act including this Act". As a matter of general principle, such uncertainty should be resolved against any extension of the immunity beyond cases for which its necessity is evident[20]. Furthermore, so the argument runs, the rationale for an immunity of the kind conferred by s 21A does not extend to matters of internal court administration of the kind dealt with in s 10.

    [20]Gibbons v Duffell (1932) 47 CLR 520 at 528.

51. It is clear that s 30 of the Code is in aid of the independent and impartial administration of justice; the exercise of judicial functions without fear or favour. The purpose of s 21A, which extended the s 30 immunity beyond the exercise by magistrates of judicial functions to the exercise of administrative functions, is also related to the independence of the magistracy. Such independence is important in relation to the exercise by magistrates of the various responsibilities conferred on them by other Acts of the kind set out above. What, the respondent asks, does it have to do with matters of internal court administration and discipline of the kind dealt with by the Magistrates Act itself?

52. The answer to that question, and to the respondent's argument, requires closer examination of s 10 of the Magistrates Act. In truth it covers a number of matters closely related to issues of judicial independence. Sub-sections (1) and (2) of s 10 cover the whole range of matters relevant to the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Courts, and include the organising of court lists, the allocation of magistrates to particular localities, and the assigning of magistrates to particular work. Arrangements of that kind are not merely matters of internal administration. They affect litigants and the public. Within any court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is a matter intimately related to the independent and impartial administration of justice. This was the basis of the decision of the New South Wales Court of Appeal in Rajski v Wood[21], where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable.  As was pointed out in Minister for Immigration and Multicultural Affairs v Wang[22], where it is the function of a head of jurisdiction to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence.  The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions[23]. The responsibilities conferred upon a Chief Magistrate by s 10 would cover some mundane issues of a kind that arise in the administration of any substantial organisation. On the other hand, some of those responsibilities, and especially those involving decisions which directly or indirectly determine how the business of Magistrates Courts will be arranged and allocated, concern matters which go to the essence of judicial independence. The selection of supervising and coordinating magistrates is a matter that falls into that category. It is, therefore, incorrect to say that the functions and powers conferred on the Chief Magistrate by s 10 are unrelated to the rationale for the immunity in question. As to some of those functions the rationale is directly relevant. As to some it may be of no relevance, or of limited relevance. As to others, its relevance may depend upon the circumstances. Furthermore, it is not the case that decisions of the kind covered by s 10 affect only the conditions of service of individual magistrates. Such decisions affect the assignment of judicial officers to cases. If a Chief Magistrate could be called to account, in civil or criminal proceedings, for decisions about how Magistrates Courts arrange their business, or about the assignment of magistrates to cases, or classes of case, the capacity for the erosion of independence is obvious.

    [21](1989) 18 NSWLR 512.

    [22](2003) 215 CLR 518 at 523-524 [12].

    [23]As to the limits on the power to investigate the reasons for a decision to assign a judge to a case, see the decision of the Supreme Court of Canada in MacKeigan v Hickman [1989] 2 SCR 796.

53. In recent years, the Supreme Court of Canada[24], and the Constitutional Court of South Africa[25], have found it necessary to examine the theoretical foundations of judicial independence for the purpose of considering whether arrangements in relation to particular courts satisfied the minimum requirements of that concept.  In that context reference was made to "matters of administration bearing directly on the exercise of [the] judicial function."[26]  The adjudicative function of a court, considered as an institution, was seen as comprehending matters such as the assignment of judges, sittings of the court and court lists, as well as related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out that function.  Judicial control over such matters was seen as an essential or minimum requirement for institutional independence[27]. The distinction between adjudicative and administrative functions drawn in the context of discussions of judicial independence is not clear cut. Nevertheless, the powers conferred by s10 of the Magistrates Act include powers that fall squarely within the rationale of the immunity in question.

    [24]Valente v The Queen [1985] 2 SCR 673; R v Genereux [1992] 1 SCR 259; Reference re:  Public Sector Pay Reduction Act [1997] 3 SCR 3.

    [25]Van Rooyen v The State 2002 (5) SA 246.

    [26]Valente v The Queen [1985] 2 SCR 673 at 708.

    [27]Valente v The Queen [1985] 2 SCR 673 at 709.

54. Apart from submitting that the words "under an Act" completely exclude functions and powers conferred under the Magistrates Act itself, the respondent has not proposed any intermediate position according to which s 21A could apply to some of the powers conferred by s 10 but not to others. The rationale behind the immunity it confers requires that s 21A be read as covering the exercise by a Chief Magistrate of the powers conferred by s 10 of the Magistrates Act.

    Conclusion

55. The appellant should not have been held criminally responsible for the conduct alleged against her.  By statute, she was entitled to a protection and immunity that was wrongly denied to her.  She is entitled to succeed on her primary ground of appeal.

56. With one exception, the remaining grounds of appeal seek to raise points that were not taken, and in some cases were expressly conceded, at trial and in the Court of Appeal.  Those points do not raise any conclusive legal objection to the proceedings or the outcome of the trial, and some of them, if made good, would only result in an order for a new trial.  The appellant should not be permitted to pursue those points in this Court.

57. As to the ground that was argued in the Court of Appeal, it is sufficient to say that the reasoning of the Court of Appeal was closely related to the way in which the parties at trial presented and conducted their respective cases.  In this Court, the appellant has endeavoured to alter the position that was taken at trial in respect of a number of fundamental issues.  Furthermore, she has succeeded in an argument that there should never have been a trial of those issues.  In the circumstances, this Court should express no view on the remaining ground of appeal.

58. The appeal should be allowed.  The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside.  In place of those orders the appeal to the Court of Appeal should be allowed, the appellant's conviction should be quashed, and a verdict and judgment of acquittal on both counts in the indictment should be entered.

59. McHUGH J. I agree that this appeal must be allowed and the appellant's conviction quashed because the acts that were the subject of the charge under s 119B of the Criminal Code (Q) were acts done by a magistrate "in the performance or exercise of an administrative function or power conferred on the magistrate under an Act" within the meaning of s 21A of the Magistrates Act 1991 (Q)[28].  My reasons for doing so are the same as those of Gummow and Heydon JJ with whose judgment I agree.

    [28](Reprint No 3), formerly Stipendiary Magistrates Act 1991 (Q).

60. But I would also quash the conviction on the ground that the learned trial judge failed to put the appellant's true case on "reasonable cause" to the jury and failed to direct the jury as to the meaning of that term and the evidence relevant to its evaluation.  To understand why that is so, it is necessary to examine the summing‑up in detail, much of which in my opinion did not adequately explain to the jury how they should apply a novel legal provision, set in an unusual context, with legal terms and issues upon which the jurors required clear guidance.

61. The appellant has never complained that the summing-up was generally defective.  Ordinarily in such a case, it would not be part of this Court's function to examine the summing-up.  Further, the trial was presided over by an experienced judge and an experienced member of the Queensland Criminal Bar represented the appellant at the trial.  Those two facts provide a further reason why this Court would not ordinarily examine the adequacy of a summing-up when its adequacy is not a ground of appeal.  But, despite these considerations, it is necessary to examine the summing‑up generally to understand the strength of the ground that is raised in this Court. 

62. The appellant complains that the "learned trial judge misdirected the jury by not giving them any directions as to the meaning of 'without reasonable cause' in Section 119B of the Criminal Code".  The appellant did not argue this ground in the Court of Appeal.  In that Court, the only ground argued was that no reasonable jury could have found beyond reasonable doubt an absence of "reasonable cause" for the conduct that was the basis of the charge.  However, Crampton v The Queen[29] holds that there is no constitutional objection to raising a ground of appeal for the first time in this Court although special leave to appeal on such a ground will be allowed only in exceptional circumstances.  As will appear, the circumstances of this case are so exceptional that it is appropriate to allow both the immunity ground and the present "reasonable cause" ground to be raised in this Court.

    [29](2000) 206 CLR 161.

    Statement of material facts

63. The appellant was the Chief Magistrate of Queensland. Section 10(2)(d) of the Magistrates Act 1991 (Q) empowered the Chief Magistrate to nominate a magistrate to be a Co-ordinating Magistrate for the purpose of the allocation of the work of the Magistrates Court. The grant of this power also gave her the power to remove a nominated magistrate[30]. Section 10(2) of the Magistrates Act also empowered her to transfer magistrates, but this power was subject to review by a Judicial Committee established under the Act for the purpose of reviewing such decisions.

    [30]Acts Interpretation Act 1954 (Q), s 25(1)(b)(i).

64. One Co-ordinating Magistrate nominated by the appellant was Mr Basil John Gribbin.  He was appointed a magistrate in 1987, and the appellant nominated him as a Co-ordinating Magistrate in April 2000.  The position of Co‑ordinating Magistrate entailed greater administrative duties than that of a magistrate.  They included the allocation of work between magistrates in the area.  The position also carried an annual stipend of $2,000.  In September 2002 – the month when the events critical to this case took place – Mr Gribbin was also Vice-President of the Stipendiary Magistrates Association of Queensland ("the Magistrates Association"). 

65. On 26 October 2001, the Magistrates Association had sent a letter to the Attorney-General for Queensland proposing changes to the powers of the Chief Magistrate.  Mr Gribbin was not a President, Vice-President or Secretary of the Association at that time, and it is not clear that he was even a member of the Executive.  The letter was signed by the then President.  However, Mr Gribbin testified that the appellant was not consulted about the issues raised in the letter.

66. On 17 December, the appellant made a phone call to Mr Gribbin during which she complained that none of the matters in the letter had been raised with her despite ample opportunity to do so, particularly at the September 2001 meeting of Co-ordinating Magistrates.  Mr Gribbin said that during this conversation the appellant had told him that there was a conflict of interest between his position on the Magistrates Association and his position as Co‑ordinating Magistrate.  He said that she attempted to deliver an ultimatum to the effect that he must choose between these positions and could not maintain both of them.  However, this dispute between the appellant and Mr Gribbin seemed to have been resolved after an e-mail from the appellant which Mr Gribbin described in evidence as "a complete backdown".

67. In July 2002, the appellant determined that another magistrate, Ms Anne Thacker, should be transferred to Townsville.  Later that month, Ms Thacker filed an application for a review by the Judicial Committee of that determination.  She wrote to the Magistrates Association seeking assistance with her application for review.

68. On 12 August 2002, Mr Gribbin provided an affidavit to Ms Thacker's solicitors for use in the review proceedings.  The appellant filed an affidavit in reply on 30 August 2002.  In his affidavit, Mr Gribbin outlined the process for transferring magistrates between centres and the statutory change to that system that was effected in 1991 by the Stipendiary Magistrates Act, which conferred upon the Chief Magistrate the power to make transfer decisions.  In his affidavit, Mr Gribbin said that the appellant's exercise of her power was "difficult to tie to a clear policy approach", that there had been many "forced transfers" and that magistrates generally felt "susceptible to arbitrary, unadvertised, involuntary transfers".  In evidence, Mr Gribbin said that at that time he considered the appellant to be an "appalling Chief Magistrate".  Mr Gribbin agreed that, before expressing his view of her policies in his affidavit, he had not told the appellant that her transfer policy was unclear.  He said that there had been a "measure of friction" between him and the appellant but that it had subsided by the time he wrote the affidavit in the application by Ms Thacker.

69. On 4 September 2002, Mr Gribbin received an amended draft agenda for a Co-ordinating Magistrates meeting which was to take place on 19 and 20 September 2002.  One of the items added to the agenda was "Role of the Association".

70. On 9 September 2002, Mr Gribbin sent an e-mail about this agenda to several magistrates who were to attend the September meeting of the Co‑ordinating Magistrates.  His e-mail expressed the concerns he had about that item and sought to initiate discussion about it with other Co-ordinating Magistrates.  Mr Gribbin said he did not send the e-mail either to the appellant or to her Deputy, Mr Hine, but that he "fully intended to publish [his] concerns at the meeting to both of them".

71. On 18 September 2002, the appellant sent Mr Gribbin a letter by e‑mail calling on him to show cause why she should not exercise her power to withdraw his nomination as a Co-ordinating Magistrate.  Before sending the e-mail, she consulted Mr David Graham Searles, who was retained by the Queensland Law Society in relation to professional misconduct prosecutions.  He advised the appellant in relation to the application by Ms Thacker and in relation to an earlier transfer issue.

72. The original draft letter that the appellant showed to Mr Searles provided for the removal of Mr Gribbin.  However, Mr Searles advised her that the letter should be altered so as to give Mr Gribbin an opportunity to show cause why he should not be removed.  Relevantly, the amended letter stated:

    "Could you also explain to me why you sought [sic] fit to supply an affidavit in the matter of Ms Thacker's Review of my decision to transfer her to Townsville.  You were critical in it of both Mr Deer and myself in relation to transfer matters.  Is this a matter which you feel should be discussed by you in an affidavit before the Judicial Committee, when you have never raised it with me personally or at a Co-ordinating Magistrate's meeting?

    In the circumstances, I feel that I do not have your confidence in my leadership abilities.  No other magistrate, certainly not a co‑ordinating magistrate has seen fit to enter into any such matters. ...

    Further, you circulated all other co-ordinating magistrates (except Mr Hine and with no reference to myself), in relation to a proposed agenda item for the forthcoming co-ordinating magistrates meeting.  The agenda is, in the end, a matter for my discretion, following consultation with the other Co-ordinating magistrates.  No-one put to me that such an item should not be on the agenda.  I consider that action on your part, again, to be disloyal to the leadership of the magistracy and disruptive of the morale of the magistracy.

    The position of Co-ordinating Magistrate in the Queensland Magistracy is a privileged position.  I regularly meet with all Co-ordinating Magistrates who give input into the administration of the courts.  Whilst constructive criticism will always be appreciated, there must be loyalty to the Chief Magistrate.  As stated, you sought to agitate a view about an item on the agenda for the meeting beginning tomorrow, without my knowledge.

    This and the other example I refer to above, manifest to me a clear lack of confidence by you in me as Chief Magistrate.  In the circumstances, I ask you to show cause, within seven days, as to why you should remain in the position. 

    In the circumstances, it is not appropriate that you attend the Co‑ordinating Magistrates meeting this Thursday and Friday at Central Courts."

73. As a result of sending this letter, the appellant was charged with an offence under s 119B of the Criminal Code and with attempting to pervert the course of justice under s 140 of the Criminal Code.

74. Section 119B of the Criminal Code provides:

    "A person who, without reasonable cause, causes, or threatens to cause, any injury or detriment to a judicial officer, juror, witness or a member of the family of a judicial officer, juror or witness in retaliation because of –

    (a)anything lawfully done by the judicial officer as a judicial officer; or

    (b)anything lawfully done by the juror or witness in any judicial proceeding;

    is guilty of a crime.

    Maximum penalty – 7 years imprisonment."

75. The appellant was subsequently tried in respect of the two charges. The jury convicted her of the offence under s 119B of the Code and were directed that the charge of attempting to pervert the course of justice was an alternative count. As a result, the jurors were not required to return a verdict in respect of the charge of attempting to pervert the course of justice.

76. Subsequently, the Court of Appeal of Queensland dismissed the appellant's appeal against her conviction, and this Court granted her special leave to appeal against the order of the Court of Appeal dismissing her appeal to that Court.

    The requirements of a summing-up

77. Section 620 of the Criminal Code declares that, after the evidence has concluded and counsel have addressed the jury, "it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make."  The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case.  The key term is "instruct".  That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts[31].  As McMurdo P said in Mogg[32], ordinarily the duty imposed on a trial judge in respect of a summing-up requires the judge to identify the relevant issues and relate those issues to the relevant law and facts of the case.  In the same case, after referring to s 620 Thomas JA said[33]:

    "The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken." (footnote omitted)

    [31]cf Alford v Magee (1952) 85 CLR 437 at 466.

    [32](2000) 112 A Crim R 417 at 427 [54].

    [33](2000) 112 A Crim R 417 at 430 [73].

78. The statements of the learned President and Thomas JA show that the law concerning a summing-up in trials under the Criminal Code is no different from the law in trials at common law.  Their Honours' statements are consistent with the statements of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen[34] concerning the duty of a trial judge in jurisdictions that have no counterpart to s 620:

    "The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused.  That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury.  Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.  It will require the judge to put fairly before the jury the case which the accused makes." (footnotes omitted)

    [34](2000) 199 CLR 620 at 637 [41].

79. As Diplock LJ pointed out in R v Mowatt[35], the "function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence." (emphasis added)

    [35][1968] 1 QB 421 at 426.

80. A summing-up is radically defective unless it adequately explains "to the jury the nature and essentials of" the offence with which a person is charged[36].  Where the offence involves statutory terms, it is usually "imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining" whether particular conduct is within the terms of the section[37].

    [36]McBride v The Queen (1966) 115 CLR 44 at 47.

    [37]McBride v The Queen (1966) 115 CLR 44 at 50.

81. In the present case, I think that the summing-up was defective in material respects.  Furthermore, it did not comply with the above principles.  In fairness to the learned trial judge, it has to be emphasised that his directions to the jury tracked the arguments that counsel for the appellant and the Crown put to the jury.  In my view, the defects in the summing-up resulted from the prosecution case being built upon an erroneous application of s 119B to the facts of the case.  To use the words of Windeyer J[38] in a similar context, that had the consequence that "[t]he trial of this action got off to a bad start."  And it was not improved when counsel for the appellant did not seriously challenge the conceptual structure of the prosecution case, perhaps because it raised factual issues that he thought gave his client a forensic advantage.  In these circumstances, it is not surprising that the summing-up of the learned trial judge followed the conceptual structure of the case accepted by counsel and the factual arguments put by each counsel. 

    [38]Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 201.

82. No doubt the arguments of counsel for the appellant at the trial reflected his belief that the appellant's best chance of acquittal lay in putting the issues in the way that he did.  His failure to ask the judge for the legal directions that should have been given may also have reflected the belief that putting issues to the jury that did not reflect the course of his address might have confused the jury and made the chance of acquittal less likely.  He may have thought that his client's chance of acquittal would not be improved, but would be likely to be harmed, if he asked the judge to direct the jury in accordance with what I think were the real issues posed by the s 119B charge and the evidence.  Similarly, he may have thought that the best interests of his client would not be advanced by a close interpretation of the various terms of the section.  But if he held these views, he was mistaken because it led to the appellant's true case not being put before the jury.

83. Whatever the offence and however the accused's case is conducted, the law requires that a judge's summing-up comply with the principles to which I have referred.  A trial judge is bound to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it[39].  Barwick CJ stated the relevant principles in Pemble v The Queen[40]:

    "There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up.  If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties.  But this was not a civil trial.  The decision of the House of Lords in Mancini v Director of Public Prosecutions following Lord Reading's judgment in R v Hopper and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v The King).  Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law.  This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part." (footnotes omitted)

    [39]Pemble v The Queen (1971) 124 CLR 107.

    [40](1971) 124 CLR 107 at 117-118.

84. After giving due respect to the advantage that counsel and the learned trial judge had in hearing the evidence and absorbing the atmosphere of the trial, I am nevertheless convinced that the summing-up was defective in radical respects.  I do not think that the jury received the assistance that they needed in respect of a novel offence that is formulated in imprecise language and had to be applied to evidentiary issues and factual distinctions of some subtlety.  No doubt the course taken by counsel on each side put the learned trial judge in a difficult position.  To a considerable extent, he would have had to instruct the jury on matters that counsel who then appeared for the appellant had eschewed.  But as Barwick CJ makes clear in Pemble, the proper administration of the criminal law requires nothing less.  The right of every accused to a fair trial according to law cannot automatically depend on the forensic choices of the counsel who represents the accused.

    The summing-up

85. The summing-up commenced by describing the offences laid in the indictment.  The learned judge gave standard directions concerning the functions of himself and the jury, the onus and standard of proof and the need for each verdict to be unanimous.  He instructed the jury that the opening speeches and closing addresses of counsel were not evidence although their submissions and comments had to be carefully considered.  He told them that, although he would comment on some of the evidence, the fact that he did so did not necessarily mean it had more weight than other evidence.  He identified the witnesses by name and the positions that they held.  He reminded the jury that, although they had heard a good deal of evidence concerning discord among magistrates in particular on the subject of transfers, "the rights and wrongs of the controversy concerning transfers are not for you to determine."  His Honour then said:

    "In this case a question arises, in relation to both charges, as to the accused's state of mind when she did what the Crown has alleged against her.  In relation to the first charge, the question arises whether she did what she did in retaliation.  On the second charge, the question arises whether she did what she did with the intention of perverting, et cetera, the course of justice.  So her state of mind is relevant.

    The Crown alleges on the first count that she did what she did in retaliation, as a payback; on the second count, that she did what she did with the intention of perverting, et cetera, the course of justice.  And the Crown relies on circumstantial evidence."

153. In his reasons in Truong, Hayne J concluded that s 42 of the Extradition Act did not apply in the manner alleged by Mr Truong[88].  However, his Honour also rejected Mr Truong's attempt belatedly to rely on the argument on the basis that the circumstances of that omission indicated that there was no "miscarriage of justice" that would justify this Court's intervention[89]:

     "[O]nce the appellant, on being arraigned, pleaded not guilty he could not later, having been convicted, say that he should not have been tried.  On arraignment he could have entered, as a special plea[90], the plea that his trial would contravene s 42 of the Act. Not having done so, even if the premise for this second contention had been made out, there would have been no miscarriage of justice warranting the intervention of the Court of Appeal[91]."

     [88]Truong (2004) 78 ALJR 473 at 507 [197]; 205 ALR 72 at 119. The relevant provisions of the Extradition Act 1988 (Cth) are set out in the reasons of Hayne J at [198].

     [89]Truong (2004) 78 ALJR 473 at 507 [198]; 205 ALR 72 at 119.

     [90]Crimes Act 1958 (Vic), s 390A.

     [91]Crimes Act 1958 (Vic), s 568(1).

154. In my reasons in Truong[92], I held that it was inappropriate to consider the prosecutor's objection to the belated reliance on the argument of "speciality" in terms of waiver[93]. However, by reference to the language and policy of s 42 of the Extradition Act, designed to prevent a trial contrary to the rule of "speciality" happening at all, I concluded that, to uphold the language and object of the statutory immunity from such a trial, this Court should permit the appellant, although belatedly, to rely on his objection.  Important considerations of public law, not just private rights, were involved.  I disagreed that the point had been "spent" once the trial commenced and after Mr Truong had undergone the trial that ensued.  I concluded that the lateness in raising the point did not exclude a miscarriage of justice.

     [92]Truong (2004) 78 ALJR 473 at 498-502 [138]-[162]; 205 ALR 72 at 106-111.

     [93]Truong (2004) 78 ALJR 473 at 501 [157]; 205 ALR 72 at 110.

155. Consistent approaches to new grounds:Upon the approach that I took in Truong, there is no difficulty in the present appellant's raising in this Court the immunity point that was not raised on her behalf in the courts below.  As in Truong, the point is one that concerns a large question of public policy.  There, as here, it is a ground directly relevant to whether there should have been a criminal trial at all, as propounded by the prosecution.  The issue was expressly reflected in Truong (as the immunity is here) in the terms of the governing legislation.  As here, the point in Truong was not one concerned solely with the rights of the appellant before this Court but with wider considerations of legal policy.  Moreover, in the view that I took in Truong, procedural rules and impediments, at least in such matters, could not be allowed to impede consideration of the substance of the complaint, namely that an important aspect of the statute law of the State had been overlooked and therefore not applied. 

156. In Truong, in words that I consider equally applicable to the present appeal, I said[94]:

     "In the present case it is difficult to believe that, if the appellant could make good his objection to the lawfulness of his trial, he would lose the opportunity to be heard on that issue simply because of a delay in raising it.  Much less substantial grounds of objection to less serious convictions carrying much shorter sentences have been permitted by this Court, notwithstanding a failure of the prisoner to raise the objection at trial.  Here, the appellant submitted that the conduct of any trial at all, on the offences in the presentment, was contrary to the express command of … law.  If this was so, it is arguable that the 'proviso' is inapplicable, being designed to defend a lawful trial which was flawed in its conduct, not one which explicit … legislation said should not be conducted at all."

     [94]Truong (2004) 78 ALJR 473 at 501 [154]; 205 ALR 72 at 110 (footnotes omitted) (emphasis in original).

157. The controversy that arose in Truong between the approach that I favoured and the approach taken by the majority to the belated point raised there, is reflected in other recent decisions of this Court where there have been similar divisions of opinion[95].  I adhere to the views that I have earlier expressed.  In my opinion, neither waiver, nor procedural loss of the point as "spent", nor a suggested lack of a "miscarriage of justice" stand in the way of the appellant's now relying on the immunity argument.  That argument is one that concerns obedience to statute law enacted by Parliament.  Equally, it involves a high policy for the administration of justice, expressed in that law.  Yet can the belated attempt of the appellant in this case to rely on the immunity now invoked be upheld by this Court, consistently with the approach that the majority adopted so recently in Truong?

     [95]See eg Conway v The Queen (2002) 209 CLR 203 at 241 [102].

158. Obviously, if my view were applied there is no difficulty once this Court considers that the circumstances are sufficiently "special" or "extraordinary", so as to warrant a determination of the belated point.  But I was in dissent in Truong.  The express prohibition in the federal legislation in Truong was upon the conduct of a "trial".  Arguably therefore, as Gummow and Callinan JJ concluded, once that "trial" had commenced (and particularly after it was completed) the opportunity for raising the objection was lost forever.  So it is said, for good or ill, the offence to the provisions of the Extradition Act had occurred and it was necessary to consider what followed.  I do not find this point of suggested distinction very satisfying given that immunity from trial at all was the common purpose of each enactment invoked by the respective accused in this case and in Truong.  However, as those who rejected the immunity in Truong are content to admit of the distinction, I will not struggle to deny it given that I disagree with the supposed rule on which the exception operates.

159. Although the respondent in this Court did not raise any of the foregoing points, it is important for this Court to notice them to ensure the application of a consistent approach to belated grounds of appeal in criminal appeals before it.  Self-evidently, it should not matter that such a ground is raised by a convicted sex offender[96] or by a convicted foreign kidnapper and murderer[97] or by a convicted judicial officer[98].  This Court must approach, and must be seen to approach, such cases in a consistent and impartial way.  Properly, an appeal such as the present is subject to close scrutiny.  No special favours must be accorded, or appear to be accorded, to a person such as the appellant.  This Court must act in a principled fashion, holding the scales evenly whatever the character of the alleged offence or identity of the offender.  That is certainly the way in which I have endeavoured to approach the cases.

     [96]As in Gipp (1998) 194 CLR 106.

     [97]As in Truong (2004) 78 ALJR 473; 205 ALR 72.

     [98]As in the present appeal.

160. Conclusion:  no procedural impediment:  No impediment of waiver, no procedural barrier and no want of a miscarriage of justice arise in this appeal to suggest that the appellant should be denied the opportunity of reliance on the immunity overlooked below.  Specifically, as others have stated, the immunity in question here, although protective of individual judicial officers, does not exist solely for that purpose[99].  It exists for the wider public benefit of preventing curial and other public interventions into the internal arrangements of courts, and the independent performance and exercise of administrative functions and powers, specifically those relevant to the assignment of judicial officers to hear and determine cases within such courts.  If such matters could be the subject of judicial proceedings, the result would be the risk that those with money, power or determination could vex judicial officers by challenging (and thereby seeking to influence) assignments within courts of the judicial officers who will participate in, and determine, cases. 

     [99]Similarly, in respect of the Extradition Act considered in Truong, public policy considerations existed for permitting a belated invocation of the Extradition Act to succeed:  defence of the sovereignty of the nations engaged in extradition; insistence that Australia, like other nation states, comply with "speciality" conditions on a reciprocal basis; and avoidance of abuse of extradition procedures generally.  These are not considerations personal to the prisoner, nor arguably to be waived by him.  They concern extradition states and their respective rights and duties.

161. Subject to what follows, the foregoing immunity is expressly provided for by s 21A of the Magistrates Act. There is no relevant procedural impediment to the appellant's raising the point belatedly. She should be permitted to do so.

     The judicial immunity issue

162. The reference to "an Act":  To my mind, there is an undecided question as to whether the appellant's exercise of her functions and powers concerning the nomination of colleagues who will determine the judicial officers within the Magistrates Court who would hear cases, involves the exercise of her "judicial functions" within s 30 of the Code. If it does, there was no need to rely on the extension of that immunity in the Magistrates Act to an "administrative function or power".  However, it is unnecessary to decide that point[100].

     [100]cf reasons of Gleeson CJ at [44].

163. Assuming that, properly classified in the light of the statute law of Queensland, the internal arrangements of the magistracy of the State affecting the assignment of cases (and specifically the nomination or withdrawal of the nomination of a magistrate to be a supervising magistrate[101]) were "administrative" and not "judicial" in character, the appellant relied on s 21A of the Magistrates Act to extend the statutory immunity for the exercise of her "judicial" functions to that "administrative" decision and the steps necessarily involved in it.

     [101]Within the Magistrates Act, s 10(2).

164. The respondent resisted such an extension.  It did not address what I have described as the unresolved point.  Its resistance relied on the argument that one of the preconditions stated in s 21A was not established, namely that the administrative function or power in question must be one "conferred on the magistrate under an Act".  The respondent's argument[102] was that the identified phrase did not cover s 10 of the Magistrates Act but was a reference to some other and different Act. Otherwise, it was submitted, s 21A would have contained words such as "including this Act".

     [102]See reasons of Gleeson CJ at [48].

165. Section 21A of the Magistrates Act is ambiguous. Legislative ambiguity is a common visitor to this Court[103].  Resolving such uncertainties involves a court in looking for textual and other clues as to the purpose of Parliament in adopting the language chosen.  Such clues may be derived from considerations of legal principle and policy that throw light on the interpretative task in hand.

     [103]News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at 580 [42].

166. So far as considerations of text and structure are concerned, it is true that, had it been intended that s 21A of the Magistrates Act would refer to functions and powers conferred by its own provisions, it would have been common, even perhaps usual, for explicit reference to have been made to functions or powers conferred by that Act itself. It is also fair to say that the use of the indefinite article ("an") lends some support to the respondent's submission.

167. As against these arguments, the Magistrates Act is undoubtedly "an Act". Reference to it is not expressly excluded, as it might have been (by use of a phrase such as "other than this Act"). The Magistrates Act includes provisions for the performance of administrative functions and powers, including by the Chief Magistrate. The language chosen is stated in general terms. It is not intended to provide, nor is it suitable for, a restriction on the application of the immunity to the instance of telephonic interception, nominated in the Explanatory Notes that accompanied the Bill inserting what became s 21A of the Magistrates Act[104]. 

     [104]Justice Legislation (Miscellaneous Provisions) Bill (No 2) 1999 (Q), Explanatory Notes at 8, 10; cf reasons of Gleeson CJ at [15] where the Explanatory Notes are quoted.

168. The only possible reason of legal principle and policy for confining the interpretation of s 21A as the respondent submitted is the law's strong disposition against immunities that derogate from an individual's ordinary legal obligations to others, and to the community, on a footing of full equality before the law[105].  In the event of a real doubt, legislation will normally be construed so as to uphold such equality and to confine the immunity.  This follows on the assumption that, had the legislature intended to depart from such an interpretation, it would have said so in plain terms.  This principle is but one instance of the general approach of the courts to construe statutes favourably to the observance of fundamental rights and duties, of which equality before the law is one[106].

     [105]cf Gibbons v Duffell (1932) 47 CLR 520 at 528, 534; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 554-558 [91]-[101], 600-601 [228], 602-603 [234]-[236]; D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at 811 [317]; 214 ALR 92 at 170.

     [106]Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11], 562-563 [43], 577 [90], 592-593 [134] and cases there cited.

169. I give full weight to this consideration in the present case. However, the express terms of s 10 of the Magistrates Act are virtually impossible to reconcile with a view of s 21A of the same Act that would exclude the application of s 21A to the performance or exercise of the "administrative" functions or powers provided in s 10 (if administrative be their correct classification). Moreover, the very large number of plainly "administrative" functions and powers of magistrates, contained in numerous Queensland statutes[107], makes it extremely difficult to see a consistent legislative policy that would extend the immunity to them but deny it to the performance or exercise of the sensitive and important functions and powers conferred by s 10 of the Magistrates Act.

     [107]Referred to in the reasons of Gleeson CJ at [45].

170. Conclusion:  appellant entitled to immunity: It follows that the preferable interpretation of the phrase "under an Act" in s 21A of the Magistrates Act is that it includes reference to that Act itself. In this, I agree with the other members of this Court.

171. The consequence is that, at the least, the appellant was entitled to the immunity provided by the express extension in s 21A of the Magistrates Act of the general judicial immunity provided in s 30 of the Code against criminal responsibility. The appellant may invoke that immunity in this Court, albeit belatedly, as she has done. Subject to what follows, because the immunity applied to the appellant's relevant acts and omissions, she should not have been charged, or tried, for an offence against s 119B of the Code, as contained in the indictment. The alternative offence with which she was charged, against s 140 of the Code, upon which the verdict of the jury was not taken[108], stands in the same position.

     [108]Relating to attempting to pervert the course of justice.

172. Characterisation of the exercise of functions:A second potential argument of a textual kind should be mentioned. Although not pressed by the respondent, it is proper for this Court, in deciding this appeal, to deal with it. It concerns the ambit of the immunity for which s 30 of the Code provides. Hence it concerns the extended ambit which s 21A of the Magistrates Act enacts.

173. In s 30 of the Code it is stated (with emphasis here added) that the immunity from criminal responsibility applies "for anything done or omitted to be done by the judicial officer in the exercise of the officer's judicial functions". By extension under s 21A of the Magistrates Act, the same immunity applies "for anything done or omitted to be done by the judicial officer in the exercise of" an "administrative function or power" of that officer.  It is necessary, therefore, to characterise the conduct that is impugned.  Simply because an action is performed by a person who is a judicial officer does not, without more, attract the immunity.  Nor does the fact that the action was done during work hours, in or from the judicial officer's chambers, on official notepaper or otherwise with an outward semblance of official conduct, afford the immunity if the reality posited by the legislation is missing[109]. 

     [109]R v Johnson (1805) 7 East 65 [103 ER 26].

174. Can it be said, in this case, that the verdict of the jury, finding the appellant guilty of the offence against s 119B of the Code, indicates, or suggests, a characterisation by the jury of her conduct, or some of it, as involving the conclusion that the appellant stepped outside the "exercise of [her] administrative function or power", in order to pursue a personal "payback" or retribution or private vendetta against Magistrate Gribbin[110]?  A suggestion similar to this appears to have been made by the prosecution at the trial.  So, does the jury's verdict indicate a rejection of the characterisation of the "function or power" necessary to attract the statutory immunity to the actions of the appellant?  Is it such that this Court should reject the appellant's belated appeal to the immunity point or, possibly, commit that issue to be retried with explicit reference to it before a new jury?

     [110]cf reasons of Gleeson CJ at [27]-[29].

175. In this case, these questions should be answered in the negative. First, although "retaliation" and "lack of reasonable cause" were certainly pressed upon the jury, this was because of the terms of s 119B of the Code[111]. No consideration whatever was given by the jury to any issue of judicial immunity. This was because no such issue was raised before or during the appellant's trial. The jury's verdict cannot, therefore, be taken as affirming a characterisation of the appellant's actions relevant to the application of s 30 of the Code, as extended by s 21A of the Magistrates Act.

     [111]The terms of s 119B of the Code are set out in the reasons of Gleeson CJ at [19].

176. Secondly, the purpose of the immunities provided by the cited provisions of the Queensland statute law is to forestall, in the cases to which they apply, the very kind of proceedings that occurred in this instance, involving as they did curial examinations of the exercise of functions and powers which the statutory provisions aimed to remove from such accountability, and do so for important principles of public policy supportive of judicial independence.  It would defeat the expression and policy of the legislation and be wholly inappropriate to introduce an obligation in every case to examine all the facts so as to provide the characterisation of the "true nature" of what was done or omitted to be done by the judicial officer as within or outside the exercise of that officer's functions[112].  To require this would be to undermine the achievement of the purpose of the immunity.  It would render it ineffective in practice and would be contrary to the obvious object of the Queensland Parliament in enacting the provisions as it did. 

     [112]See the recantation of the analogous introduction of a requirement of "good faith" mentioned by Lord Denning MR in Sirros v Moore [1975] QB 118 at 135 applied in Attorney-General (NSW) v Agarsky (1986) 6 NSWLR 38 at 40 but "refined" in Rajski v Powell (1987) 11 NSWLR 522 at 536, 539.

177. Cases might arise in which an issue as to the characterisation of the judicial officer's functions and powers is presented so as, arguably, to take the exercise of those functions and powers out of the immunity provided for in the legislation. It is unnecessary in this appeal to explore the circumstances in which that might be so. It is sufficient to say that the exercise by the appellant of the functions and powers conferred on her under s 10 of the Magistrates Act with respect to Magistrate Gribbin, as now disclosed in all its detail in these proceedings, is clearly within the classification of a performance or exercise of an administrative function and power such as conferred on her by s 10 of the Magistrates Act. If the immunity point had been raised at the proper time (namely when any charge for criminal responsibility was being considered by the prosecution, at the directions hearing or on any arraignment of the appellant), the facts then known would have demanded classification of the appellant's conduct as falling within s 30 of the Code. Certainly, it would have fallen within that provision as extended by s 21A of the Magistrates Act. The second textual issue must therefore be decided in the appellant's favour.

178. The provision for express exceptions:The third textual consideration was likewise not advanced for the respondent. However, it too should be dealt with. It concerns the opening words of s 30 of the Code, by which the immunity there afforded (including as the foundation for the extension to an "administrative" function and power by s 21A of the Magistrates Act) is to apply "[e]xcept as expressly provided by this Code".

179. Can it be argued that s 119B (dealing with retaliation against witnesses in judicial proceedings) and s 140 (dealing with an attempt to pervert the course of justice) contain language indicating that the sections fall within the exception so provided?

180. This question is answered by considering what the "express" provision contemplated by the opening words of s 30 of the Code intended. Simply because a person is a judicial officer, he or she is not immune from responsibility for criminal conduct, such as stealing from court funds or improperly interfering with the performance by a colleague of that colleague's judicial functions. However, the reference to the "express" provision by the Code is to those sections of the Code that create specific offences that, in terms, are incompatible with the immunity for which s 30 of the Code provided. Thus, certain provisions of the Code deal explicitly with offences specifically applicable to a judicial officer. Instances include ss 120 (corruption) and 136 (acting oppressively or when interested).

181. Tested by this standard, neither s 119B nor s 140 constituted an express provision of the Code for the criminal responsibility of a judicial officer as such. Each section is stated in general terms. Each imposes liability on "a person". Neither is expressed as applicable to "a person who, being a justice ..."[113]. Such offences do not, therefore, fall within the express derogations from immunity for which the Code provides. The third textual issue should likewise be decided in favour of the appellant.

     [113]cf the Code, s 136.

     Conclusions and orders

182. The operation of immunity:The result is that no impediment, of a constitutional or procedural kind, stands in the way of the appellant's relying in this Court on the belated argument based on her immunity from criminal responsibility for the offences with which she was charged and upon one of which, under s 119B of the Code, she was convicted. The immunity is a complete answer to the counts of the indictment upon which the appellant was tried. Because of this, the appellant should not have been charged, still less tried, let alone convicted of that offence.

183. The large public policy for which the immunity is provided was a complete defence for the appellant.  It was available at the threshold.  It is one which the appellant is entitled to raise belatedly, and in effect retrospectively, because it defends interests that go far beyond her personal entitlements.  She did not waive it.  It is not spent.  The failure to give effect to it constitutes a "miscarriage of justice".  This is so despite the fact that the immunity was not relied upon in a timely manner, as it should have been.  In the result, the appellant's conviction should be quashed.

184. This conclusion means that this Court is not required to consider the appellant's residual arguments raising further textual contentions that were not addressed in the courts below and presenting additional contentions on the merits, to the effect that the jury's verdict was unreasonable and contrary to the evidence.

185. The residual merits grounds:  Having concluded that the immunity applies, it is inappropriate to examine the "merits" arguments in any detail, for doing so may tend to undermine the very purpose for which the law provides that immunity[114]. 

     [114]Reasons of Gleeson CJ at [56]-[57].

186. However, the record of this case, as it was permitted to proceed, is indelible.  The public trial of the appellant cannot be undone.  Out of fairness to her, this Court should, in my opinion, make it clear that she has not succeeded on a purely "technical" point where she failed on the "merits" before the jury in a battleground selected by her, with expert legal advice.  The appellant, in my opinion, had substantial arguments on the merits that will not now be reached.  In particular, she had significant points to make in her complaint that the conduct of the prosecution by the respondent[115] and the directions given to the jury by the trial judge were flawed[116].  The fact that the appellant succeeds in this Court on the basis of a statutory immunity does not mean (so far as I am concerned) that she did not also have significant arguments on the legal and factual merits in her appeal. 

     [115]In particular, in failing to pay regard to the immunity provided by law; in charging the appellant at all in the circumstances; and in declining to call a witness in the prosecution case.

     [116]In particular, in relation to the meaning of s 119B of the Code and in relating the key provisions in that section to the evidence in the trial. See the reasons of McHugh J at [115].

187. Importance of immunity of judicial officers:In any event, the provision of the immunity from criminal prosecution to the appellant, for her exchanges with Magistrate Gribbin, is not divorced from the merits of the matters in issue in the trial, when those merits are viewed in a wider context.  Sometimes, legal immunities from criminal and civil responsibilities cannot be justified.  I always regard such immunities with vigilance and strictness.  Unless they are provided by valid and clear law, they need sometimes to be confined in their operation and sometimes to be abolished[117]. 

     [117]See eg Brodie (2001) 206 CLR 512 at 601 [228], 602-604 [234]-[237]; D'Orta-Ekenaike (2005) 79 ALJR 755 at 810-811 [314]-[317]; 214 ALR 92 at 169-170.

188. Judicial independence from external pressure from litigants and others is one of the legal immunities that can be fully justified.  It is supported by reference not only to legal authority but also to legal principle and policy, including considerations of the protection of human rights and fundamental freedoms and the functions of the judiciary in securing those ends.  Such immunity is an essential precondition to the rule of law.  The independence of judicial officers comes at a price.  It is a price that our society has long been prepared to pay.  That price is the immunity provided by law.  The Queensland Parliament has enacted, and also extended, that immunity.  It protects the public interest, not just the interests of individual judicial officers[118]. 

     [118]Kirby, "Independence of the Legal Profession:  Global and Regional Challenges", (2005) 26 Australian Bar Review 133.

189. The Supreme Court of the United States explained the rationale for this immunity.  Speaking of constitutional and common law principles akin to those which in Australia preceded the Queensland laws, that Court said in Pierson v Ray[119]:

     "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher[120].  This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'[121]  …  [A judge's] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption.  Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation."

     [119]386 US 547 at 553-554 (1967) per Warren CJ for the Court quoted in Rajski v Powell (1987) 11 NSWLR 522 at 534.

     [120]13 Wall 335 (1872).

     [121]Scott v Stansfield (1868) LR 3 Ex 220 at 223 quoted in Bradley v Fisher 13 Wall 335 at 350 (1872).

190. From the early days of our legal system, it has been recognised that such an immunity will sometimes expel other legal values that are also precious. Yet so important is judicial independence, that the immunity necessary for it to survive is afforded by statute and the common law and possibly, in Australia, as an implication in the Constitution itself. It is afforded notwithstanding that it will occasionally derogate, within its defined applications, from the criminal and civil responsibility of all persons equally before the law. Lord Bridge of Harwich explained this in In re McC (A Minor)[122], in terms applicable to the Queensland laws invoked in this case.  Where the immunity applies in terms of the law, the possibility that, in a rare case, it might be abused or that it might occasionally mask a wrong or ill-judged action by a judicial officer must be tolerated for the wider good that the immunity defends[123]:

     "[I]t is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction."

     [122][1985] AC 528.

     [123]In re McC (A Minor) [1985] AC 528 at 541. See also Anderson v Gorrie [1895] 1 QB 668 at 670-671.

191. Where that jurisdiction concerns internal arrangements, directly and indirectly affecting the assignment of judicial officers to hear cases, it is especially important that interference from outside a court should be rebuffed.  The immunity in such cases is fully justified as essential to the performance of the judicial function.  It should not be cut back.  Especially is this so because, under the Queensland laws invoked in this case, Parliament has taken the pains not only to enact the immunity in conventional terms but to extend it in a way protective of a person in the position of the appellant from the criminal prosecution to which she was subjected.

192. I agree in the orders proposed by Gleeson CJ.

193. HAYNE J.   I agree with the reasons of Gummow and Heydon JJ.

194. I add something only to deal with the suggestion that there may be some difference between what is done in this case, when the appeal is allowed on a point that was not raised in the courts below, and what was done in Truong v The Queen[124].  In Truong, effect was not given to a point, raised for the first time in the intermediate court, because it had not been raised at trial.

     [124](2004) 78 ALJR 473; 205 ALR 72.

195. Examination of the principles to be applied may begin at various points.  For present purposes, it is appropriate to begin with the Court's decision in Crampton v The Queen[125], not with the earlier decision in Gipp v The Queen[126].  The views expressed by McHugh J and me in our dissenting opinions in Gipp, about taking a point for the first time in this Court, were rejected by a majority of the Court in Crampton.  It is Crampton, not the dissenting opinions in Gipp, that states the relevant principle[127]: there is no constitutional inhibition upon the jurisdiction of the Court to entertain an appeal under s 73 of the Constitution on grounds raised for the first time in the Court, but special leave to appeal on such grounds will be granted only in exceptional circumstances. This is such a case.

     [125](2000) 206 CLR 161.

     [126](1998) 194 CLR 106.

     [127](2000) 206 CLR 161 at 171‑172 [12]‑[14] per Gleeson CJ, 184 [52], 185 [57] per Gaudron, Gummow and Callinan JJ, 206‑207 [122] per Kirby J, 216‑217 [155]‑[156] per Hayne J.

196. On the hearing of the appeal, there was no submission made that the appellant waived the point upon which she now relies – whether by pleading to the indictment preferred against her, or in some other way.  On the contrary, the respondent expressly conceded that the Court could and should entertain the point which is decisive of the appeal.  Effect must be given to that concession.  It is not a concession about the Court's jurisdiction.  That would not bind the Court.  But, after Crampton, there is no question about the Court's jurisdiction.  The respondent not making the submission that the point now raised was given up by the appellant at trial, or cannot now be raised, it is not for this Court to say of its own motion that the appellant is barred from making the argument.

197. Given the position adopted by the respondent, only fleeting reference was made in oral argument to Truong.  Views expressed about the differences between that case and the present are, therefore, unassisted by argument.  It is as well, however, to say something shortly about Truong.

198. The provision at issue in Truong was s 42(a) of the Extradition Act 1988 (Cth). That section provided:

     "Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:

     (a)be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:

     (i)any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or

     (ii)any other offence in respect of which the country consents to the person being so detained or tried, as the case may be".

     The reference to "shall not … be … tried" is important in considering whether the appellant in that case, by pleading not guilty and thus going to trial, gave up the argument that he was not to be tried.

199. By contrast, in the present case, the immunity which the appellant had was an immunity which would be engaged upon demonstrating certain facts including, for example, that she held office as Chief Magistrate and had done what she did in performing functions or exercising powers conferred on her as Chief Magistrate. (I leave aside any question about acts in excess of authority.) In this case, it seems that none of the facts relevant to the application of s 21A of the Magistrates Act 1991 (Q) was in issue. It may have been open, then, to the appellant to apply to stay the indictment before entering a plea, or to move, after entering a plea, for a directed verdict of acquittal. But her pleading to the indictment constituted no waiver of the immunity. First, the immunity is not personal to her; it is not for the holder of the office to waive it. Secondly, pleading not guilty to the indictment did not foreclose the appellant from making the argument that the facts alleged against her, even if proved, revealed no criminal responsibility.

200. I agree in the orders proposed by Gleeson CJ.