Davern, Thomas John v Messel, Harry [1983] FCA 21

Davern, Thomas John v Messel, Harry [1983] FCA 21

An acquittal obtained by a defendant on rehearing on appeal to the Supreme Court, following conviction at first instance, is an acquittal on the merits. The rule against appeals from acquittals on the merits applies, and s.24(1)(b) of the Federal Court of Australia Act does not authorise a prosecution appeal from such an order. The present appeal is incompetent and must be dismissed.

Parties
Appellant: Thomas John Davern; Respondent: Harry Messel
Jurisdiction
Australia
Judgment Date
25 February 1983
Procedural Posture
Criminal Appeal / Objection to Competency of Appeal From Acquittal After Rehearing on Appeal
Outcome
Appeal dismissed as incompetent
Legal Topics
Double Jeopardy, Appeal by Prosecution, Acquittal on Appeal, Interpretation of S.24(1)(b) Federal Court of Australia Act
Criminal Law Appellate Procedure Double Jeopardy Appeal by Prosecution Acquittal on Appeal Interpretation of S.24(1)(b) Federal Court of Australia Act

Case Brief

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Parties

Thomas John Davern

Appellant

Harry Messel

Respondent

Procedural Posture

Criminal Appeal / Objection to Competency of Appeal From Acquittal After Rehearing on Appeal

Legal Issues

  1. 1 Whether an appeal by the prosecution lies to the Federal Court from an acquittal obtained by a defendant on appeal to the Supreme Court after a rehearing from conviction at first instance; Whether such an acquittal is 'on the merits' for the purposes of the common law rule against appeals from acquittals; Whether s.24(1)(b) of the Federal Court of Australia Act permits such an appeal

Ratio Decidendi

An acquittal obtained by a defendant on rehearing on appeal to the Supreme Court, following conviction at first instance, is an acquittal on the merits. The rule against appeals from acquittals on the merits applies, and s.24(1)(b) of the Federal Court of Australia Act does not authorise a prosecution appeal from such an order. The present appeal is incompetent and must be dismissed.

Court Disposition

Appeal dismissed as incompetent

Orders

  • The appeal be dismissed as incompetent.
  • The appellant pay the respondent's costs of the appeal.