AB v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S151 of 1998

B e t w e e n -
AB
Appellant
and
THE QUEEN

Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 MAY 1999, AT 10.19 AM

MR C.A. PORTER, QC: May it please the Court, I appear for the appellant with my learned friends, MR P. BYRNE, SC and MR E.H. PIKE. (instructed by Greg Walsh & Co)

MR T.L. BUDDIN, SC: May it please the Court, I appear together with my learned friend, MR A.M. BLACKMORE, on behalf of the respondent. (instructed by S.E. O’Connor, Solicitor for the Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Porter.

MR PORTER: Your Honours, the crux of this matter, in our submission, can probably be found at page 294 of the appeal book in the judgment of Mr Justice Sperling in which, having dealt with the fact that the appellant pleaded guilty to all these offences and having dealt with the fact of his voluntary disclosure of the post-extradition offences, he said this at the top of the page:

To confess to the matters with which the applicant was charged and to disclose others was no more consistent with contrition than with self-interest.
It might be asked what more the applicant could have done to show genuine contrition if it existed, once he was brought back to Australia to face trial. The answer might be that there was nothing he could do. Be that as it may, his admissions and the disclosure of other offences could not, in the circumstances, constitute persuasive evidence of any such contrition.

That, in our submission, puts expressly what the trial judge did implicitly and, in effect, discounts to zero the fact that he pleaded guilty to the original offences and that he disclosed the post-extradition offences.

McHUGH J: That is rather difficult to say, is it not, in light of the fact of what the trial judge said at 228, 229 of the book where he said, at the top of 229:

with one possible exception, would fairly clearly not have come to light had the prisoner not made these volunteered admissions and he is entitled, accordingly, to have his sentence on those matters discounted generously - - -

MR PORTER: That is right.

McHUGH J: The trial judge certainly seems to have discounted it generously because he only gave him three and a half years for the totality of these ‑ ‑ ‑

MR PORTER: Well, if your Honour pleases, three and a half years minimum term.

McHUGH J: Yes.

MR PORTER: That analysis, with great respect, which my learned friend has done is, in our submission, is a misleading analysis. You cannot say that he only gave – technically, you might be able to arrive at that result.

MR PORTER: I appreciate the force of that, Mr Porter, but the fact is that that is what it comes to.

MR PORTER: The fact is, if your Honour please, that the overall sentence imposed by the trial judge, as convincingly put, with respect, by Mr Justice Grove in the Court of Criminal Appeal, showed quite clearly that although the trial judge recognised a subjective case and very substantial grounds for reduction, that unless you could imagine the trial judge had fixed an astronomical figure before the reduction, there was no reduction.

HAYNE J: Is your argument an argument only of manifest excess or is your argument an argument that the sentencing judge committed a specific error?

MR PORTER: Both, if your Honour pleases, because ‑ ‑ ‑

McHUGH J: This Court does not deal with manifest or excessive sentence. It is not part of our role.

MR PORTER: No.

KIRBY J: May there not be a truly extreme case, just as in House v The King, it is acknowledged that you can see error in the exercise of a discretion by something which on its face is manifestly wrong?

MR PORTER: That was Mr Justice Grove’s reasoning, in effect, in the Court of Appeal.

HAYNE J: Manifest excess requires close and intimate knowledge of the sentencing practices over the whole criminal calendar in the jurisdiction concerned, does it not?

MR PORTER: Yes, but, your Honour, there is more to it than that in this particular case because in this case – and this was probably the special leave point that obtained this man’s special leave –the prisoner, having unsuccessfully opposed extradition in the United States and perfectly reasonably on the ground of constitutional law of the United States and the time limits on these sex offences in the United States, came out and at that stage he was charged with 28 sexual offences. He then confessed to a further 39 offences which could not – there are two matters of importance. Firstly, according to the police evidence these matters would never have been discovered otherwise - that is at page 224 point 20:

The situation is that police were totally unaware of those victims and it was only with the assistance of the prisoner that those matters came into being.

That ‑ ‑ ‑

McHUGH J: That is true, but if the trial judge had not taken the course of not disclosing the prisoner’s name, the publicity may well have generated more complainants.

MR PORTER: Well, your Honour, that remark, no doubt, is to some extent inspired by the case of Father Riley to which my friend has referred but ‑ ‑ ‑

McHUGH J: That is right, yes.

KIRBY J: I thought in this case as well, when there was some publicity of the extradition proceedings that some ‑ ‑ ‑

MR PORTER: He was widely publicised for the extradition and, in fact, the reason why the pseudonym was imposed was because of the intense persecution he had suffered in gaol as a result of the publicity. So, the publicity had occurred long before – it cannot be said that this man was not widely publicised, he was headlines for a long time because of the extradition proceedings in America and, of course, he was headlines when he was brought back to Australia. It was only after he came before an Australian court that this order was made, and I think it was made by the trial judge.

McHUGH J: Yes, it was.

MR PORTER: So that, to suggest that there was a lack of publicity that may otherwise have caused complainants to come forward is, in this case, an error. I might say, your Honours, that although it did occur in the case of Father Riley, it is not a very frequent thing. There have been numerous cases of this nature and for late complainants to come in like that is not very frequent. But the matter to which I was leading is this, that neither the trial judge nor the Court of Criminal Appeal pay any regard to the extradition situation.

This is the point of law which, in our submission, is extremely important, that when he came out to Australia he could not have been charged under the extradition treaty, under the extradition regulations and under section 42 of the Extradition Act. All of these ‑ ‑ ‑

GUMMOW J: Is that referred to by the sentencing judge?

MR PORTER: No. No one refers to the extradition situation.

KIRBY J: Just a moment – he could not have been charged with the offence but was he charged with offences in relation to the other matters which he asked to be taken into account or were they simply taken into account?

MR PORTER: No, what occurred, and it appears quite clearly in the appeal book, is this, that he made a full disclosure and then, of course, the authorities said, in effect, “Well, we can’t charge you with those unless America consents”. That is under the treaty and under the law.

McHUGH J: Yes.

MR PORTER: So, then he put on an affidavit by his solicitor saying, in effect, “I consent” and the Americans waived it, and that appears in the appeal book. I think at page 181 is the affidavit in which his solicitor, in effect, to the extent a person can ‑ ‑ ‑

McHUGH J: 182, was it, I think.

MR PORTER: I am sorry, 182.

McHUGH J: You may be right.

MR PORTER: 181 is the cover sheet, I am sorry, your Honour.

McHUGH J: We are both right.

MR PORTER: That is on 28 October 1996. Mr Walsh, his solicitor, in effect, set out the fact that he made these confessions and at paragraph 10 he said:

I disclosed that notwithstanding the advice that I gave to [AB] it has been his most adamant instructions to me that he wished to disclose these matters to the investigating police and prosecuting authorities and have all of these matters taken into account by the sentencing Judge.
I am aware from the discussions that I have had with Miss Pheils that the authorities in the United States of America have sought this Affidavit from me, and I have executed same on the basis that I am informed that it will be forwarded to the authorities in the United States of America in relation to the additional charges in respect of which [AB] now wishes to plead also guilty.

At the very end of the appeal book ‑ ‑ ‑

KIRBY J: It might be best the anonymity is observed, given that that was ordered and has not been revoked. You have referred to his name on the record of this Court, so it might be best if we do not do that unless we are going to revoke the anonymity.

MR PORTER: I apologise, your Honour. In page 382 of the appeal book there is the, in effect ‑ ‑ ‑

McHUGH J: Just so there will be no mistake about the matter, I will direct that the reference to the appellant’s name be struck out of the transcript and the initials “AB” be substituted.

MR PORTER: If your Honour pleases. At page 382 is the United States, in effect, consent to the additional charges against the appellant. It is a fair inference to be drawn that when a man has contested extradition and is extradited the United States would hardly permit further charges against him without his consent. Anyhow, he has given the consent.

McHUGH J: Yes.

MR PORTER: None of that was referred to in either the sentencing judgment or the Court of Criminal Appeal and it is said in the leading judgment in the Court of Criminal Appeal that what he did was no more consistent with contrition that self-interest. It is difficult to see how that could possibly be logically argued but, if it was going to be said, it would require a lot more than that to be said.

But the fact there was an omission in both the trial judge’s sentencing judgment, which was quite lengthy, and in the Court of Criminal Appeal judgment, in our submission, shows that there was a basic misunderstanding of what occurred.

McHUGH J: Well, if there was it has probably been contributed to by the parties. It is unlikely to have been raised at first instance on appeal and, indeed, if my memory is correct, it was not raised in the special leave application, was it?

MR PORTER: Yes, it was.

McHUGH J: It was raised by you in oral argument but it was not in the papers.

MR PORTER: Mr Walsh swore a special affidavit on the special leave application, which is in the appeal book. Your Honour did point out to me that your Honour thought that there should be proper evidence, and that has now been done.

McHUGH J: Yes, but this point that you are now seeking to raise, was that in the original document filed in this Court?

MR PORTER: Yes, if your Honour please, because in the application for special leave this was, in fact, the main point.

McHUGH J: I know it was when you got to your feet.

MR PORTER: No, but there was an affidavit by Mr Walsh filed in this Court – page 309. That was the affidavit filed for the purpose of the special leave application. Of course, for this Court ‑ ‑ ‑

KIRBY J: I may not be following something, but Justice McHugh took you to the passage on 229 where the sentencing judge said that he is entitled to a generous discount. Was that not in relation to the non‑extraditable offences?

MR PORTER: Clearly it was. The prisoner had – these matters ‑ ‑ ‑

KIRBY J: Can I just get it clear in my mind. Is what you are complaining about that the sentencing judge did not put in there in brackets, “in respect of which he could not have been prosecuted, except by the consent of the United States of America”?

MR PORTER: Because there were two distinct aspects to it: firstly, he was disclosing matters which would not otherwise have been known but for his disclosure; that is the first aspect.

McHUGH J: Well, that is taken into account.

MR PORTER: And although the sentencing judge purports to take it into account, it is difficult to see how he has.

McHUGH J: Why?

MR PORTER: Because of the totality of the sentence as it ultimately turned out.

McHUGH J: Well, I am not sure that Justice Groves’ analysis is correct. He said there must have been 25 per cent taken off the head sentence, that it would have been 24 years, that is how you get to the 18, but is that the right way of going about it?

MR PORTER: In our submission, it would be; I will come to that in detail.

McHUGH J: Why would you not look at the post-extradition offences, then you say he has got three and a half years for those?

MR PORTER: If your Honour pleases, you have got to look at the totality. I do not think it is said that he got three and a half years; he got three and a half additional years.

McHUGH J: Yes, three and a half additional years.

MR PORTER: And that, in our submission, is a haphazard coincidence rather than a deliberate working out by the trial judge. In this type of matter where you have multiple offences, this Court has said, and, of course, the Court of Criminal Appeal has said often enough, that how you actually get there by accumulating sentences and by individual sentences is not the important thing; the important thing is the ultimate result.

McHUGH J: I appreciate that.

HAYNE J: Both are important, I would have thought, Mr Porter, not simply totality, though it is very important.

McHUGH J: I mean, the result is that you have got three and a half years extra for 39 offences and two of them are those of sexual intercourse with a child under 16.

MR PORTER: Well, they are digital intercourse.

McHUGH J: Yes.

MR PORTER: There was no question of any penile intercourse in this case, which is the worst possible offence.

McHUGH J: But what do you seek to get out of this? If the trial judge has discounted the sentence, as appears at page 229, for disclosure and for contrition, what else can you get out of the extradition point?

MR PORTER: Well, if your Honour pleases ‑ ‑ ‑

KIRBY J: The third point is non-prosecutable offence.

MR PORTER: That is right.

KIRBY J: It is not only that it did not have to be disclosed, and it is not only that the disclosure reveals contrition and is not, as was said, equally consistent with self-interest, but it is that it would have required a particular procedure against his opposition to have that taken into account at all.

MR PORTER: That is so.

HAYNE J: Well, what then is the specific error of which complaint is made in sentencing? At one level it is failure to refer, but what is the error that follows from failure to refer?

MR PORTER: I am sorry, your Honour, but if I could be permitted to complete this submission, I think I might be able to ‑ ‑ ‑

HAYNE J: Yes.

MR PORTER: I opened my submissions with this particular passage.

GUMMOW J: You took us to 229.

McHUGH J: You took us to 294. I took you to 229.

MR PORTER: There are two manifest errors there. One is the failure to take into account the extradition situation at all but the other error which is probably more important is that the reduction in sentence which is to be given by virtue of the common law or by virtue of section 439 of the Crimes Act and the reduction of sentence which is to be given by the common law because a person confesses to offences is not something that solely depends upon the contrition of a prisoner.

In fact, the contrition of the prisoner in this type of case is only a small part of the picture. Particularly in the cases of children, offences of paedophilia, the contrition of the prisoner is a comparatively unimportant matter. The important matter is the public interest in three matters: firstly, that the children should not be submitted to cross‑examination. That has nothing to do with his contrition. There is a public interest that the children should not be submitted to cross‑examination and the anxieties of a trial.

Secondly, and perhaps just as importantly, there is a public interest that the children should know that their story, their allegations, have been believed and this is a most important matter for the complainants. Thirdly, there is the public interest to which your Honour Justice Kirby referred in the case of Bond 48 A Crim R 1, that is the public interest in saving the expenses of lengthy trials. I do not think I need to refer to your Honour’s statement in detail because the common sense of it is manifest.

Now, if in this particular case this man had seen fit to fight these cases with 15 complainants, probably separate trials for each one, sometimes the same child giving evidence in more than one trial, the public interest in avoiding that sort of thing is very considerable.

McHUGH J: Yes, but what issue does this go to?

MR PORTER: This issue goes to the fact that in reducing a sentence on account of plea of guilty and on account of confession of other offences, it is a fundamental error to say that the only basis for reduction is the contrition of the prisoner. That is what, in effect, has been said in both judgments.

McHUGH J: But the judges below have taken into account a number of matters and one of them was the fact that your client confessed to these offences and, as the trial judge said, saved the complainants from the ordeal of having to give evidence about the matters. We are not here to examine whether this sentence is excessive or not.

MR PORTER: But your Honours are here, I would submit, to examine the question as to whether the Court of Criminal Appeal in considering the appeal from the trial judge applied the correct principles.

McHUGH J: That may be but ‑ ‑ ‑

HAYNE J: And that is whether the Court of Appeal properly applied House v The King principles, not whether the Court of Criminal Appeal was itself the sentencing court.

MR PORTER: No, I appreciate that.

McHUGH J: What concerns me is whether or not this point about extradition was ever raised in submissions or was ever drawn to the attention of the court. Was the court asked to discount the sentence because of the waiver point? Clearly the court was aware of the extradition – it was obviously mentioned in relation to contrition, in relation to the history of the matter, but was the court asked to discount the sentence on the basis that he would waive the offences?

MR PORTER: I first came into this matter in the High Court, your Honour. I cannot give your Honour that precise detail but all I can say is this, that the court was told that he was extradited after contest on 28 charges, that he then confessed to and pleaded guilty to 39 more charges. The extradition documents are part of the Court file because they are before your Honours and I would have thought, your Honour, that any reasonably informed lawyer such as the trial judge would be well aware of the principle that when a man is extradited he can only be tried on the offences for which he is extradited. Section 42 of the Extradition Act is not a strange and unknown area of the law. It is about as obvious as consideration in contract.

McHUGH J: Well, it may not be for you, Mr Porter, but I would imagine it might be a strange area of law to many judges. People do not spend their days dealing with the Extradition Act.

MR PORTER: Well, if your Honour pleases, the extradition of offenders to New South Wales is by no means an uncommon occurrence usually in the area of drug trafficking, and it would be a rare District Court judge, I would think, who was not familiar with the principle that you can only try a man for the offences for which he was extradited.

KIRBY J: But is it necessary that the judge should be or should not be personally aware? The question is whether the principle has been applied. It is not a question of whether the judge knew it. In fact, the fact that he did not know it may explain why he did not refer to it.

McHUGH J: This is a new principle, is it not? Can you cite any authority where it is said that a sentence should be reduced because the accused has waived his rights in respect of extradition? I do not think there is any, is there?

KIRBY J: I do not think you are putting it on the basis that the accused waived his rights; you are putting it on the basis that having done so, that that enlivened the obligation of the judge to take into specific account the fact that but for that waiver he could not have been prosecuted readily on those offences and would probably not have been prosecuted at all on those offences.

MR PORTER: That would put my submission, your Honour. Look, the way we are putting it is this, that to limit the consideration of the plea of guilty and the confession to the question of possible contrition of the prisoner is what led both courts into error.

HAYNE J: Could you assist me on this. I do not think we have, do we, a transcript of the proceedings on plea?

MR PORTER: I think it is ‑ ‑ ‑

HAYNE J: Particularly the submissions made in the plea.

MR PORTER: No, not the addresses made; no, not the submissions made.

HAYNE J: Therefore, do we have in the appeal book any material about the arguments that were advanced on behalf of the prisoner on plea, in particular whether any argument was advanced in connection with the ‑ ‑ ‑

MR PORTER: There is nothing in the appeal book – the arguments of both the Crown and the appellant before his Honour the trial judge do not appear in the appeal book. I do not know whether they are even transcribed but ‑ ‑ ‑

HAYNE J: It seems to me from 226 that they are not.

MR PORTER: They are not normally transcribed at all.

HAYNE J: I come from a jurisdiction where you get that benefit, I fear, Mr Porter.

MR PORTER: Yes.

HAYNE J: I always get counsel’s argument on a plea.

McHUGH J: It is one of the few advantages of living south of the Murray.

MR PORTER: It does sometimes occur in New South Wales if there is sound recording but, if there is a shorthand writer, it never occurs in my experience.

HAYNE J: But what we therefore do not know from the appeal book is whether this matter was drawn to the attention of the sentencing judge, whether it was relied on before the sentencing judge as a matter going in mitigation of punishment.

MR PORTER: With respect, if your Honour pleases, the sentencing judge is told that he is extradited on 28 offences, he is told that after he comes here he confesses to another 39. Before him is the extradition document of the United States consenting to the extra charges and, no doubt, the affidavit of Mr Walsh prompting that consent.

HAYNE J: I appreciate that, but the point is that you get double counting. Judges have to be careful about double counting in this. The judge took into account the fact that he disclosed these offences. He took into account the question of contrition. Now, you may or may not have a good point here, but my deep suspicion is that if this point had been raised directly, it would not have made the slightest difference to the sentences that the trial judge gave. If the trial judge had given the discount because of the contrition and because of the disclosure and it was said that the appellant waived his rights, it would not have made any difference in the overall sentence. After all, if you were looking at this matter technically, the accused probably should have got 50 years, except for the totality principle.

MR PORTER: If your Honour looks at the appeal book page 226, you will see that after the close of the Crown case, the prisoner produced in his case the affidavit of Mr Walsh to which I have referred, the extradition papers, et cetera.

HAYNE J: Yes.

MR PORTER: So that one could hardly bring it more specifically to the ‑ ‑ ‑

GUMMOW J: There must be ‑ ‑ ‑

MR PORTER: Unfortunately, if it had been in Victoria, no doubt at the time those documents were produced the reasons for their production would have appeared on the record. But the very production of the documents in those cases was because they were obviously produced for a purpose.

KIRBY J: Is the suggestion that that ought properly to have enlivened the attention of the judge to this issue?

MR PORTER: Of course, but it goes further ‑ ‑ ‑

KIRBY J: It just does not seem to me to be critical because whether a lawyer raises a point, whether the matter is specifically put to the judge, the issue for a Court of Criminal Appeal is to examine whether or not an error has occurred.

MR PORTER: That is so.

KIRBY J: If the point is raised, it has to be considered.

MR PORTER: Your Honour, it is clearly raised by the tender of the documents. But at the beginning of a prisoner’s case, if you tender all the extradition documents, you are not tendering them just as interesting reading them for the judge. You are tendering them as matters relevant to leniency.

HAYNE J: But relevant to leniency because of contrition; relevant to leniency for some wider reason and, therefore, much may turn on the use to which these documents are put before the sentencing judge to decide whether he or she has fallen into error.

MR PORTER: With great respect, your Honour, once the documents have been tendered, once the public interest in the plea of guilty and the confessions is fairly before the judge ‑ ‑ ‑

GUMMOW J: But there is another public interest, which may be public interest, in encouraging persons who are brought back to waive their extradition privileges, and that is a matter to be encouraged.

MR PORTER: Yes, that is so. And, if your Honour pleases, assume for the sake of argument, and I do not concede this for a moment, because Mr Walsh who appeared for the appellant is a very capable advocate, but assume for the sake of argument all he had said was “contrition”. That would not excuse the trial judge from not taking into account the much wider matter to which I have referred, the public interest in disclosure, the public interest in people waiving their rights.

McHUGH J: The next question is: were these points taken before the Court of Criminal Appeal? They do not seem to have been.

MR PORTER: With great respect, if your Honour pleases, the Court of Criminal Appeal’s judgment, that judgment of Mr Justice Sperling, it is founded on the basis that all these matters would have come to the knowledge of the authorities in any event, a finding for which there is no justification on the evidence, and I say that with ‑ ‑ ‑

KIRBY J: Where does his Honour say that? Could you draw our attention to where he actually says words to that effect.

MR PORTER: If the Court goes to page 293 at line 10:

Having been brought back to Australia involuntarily, the applicant promptly confessed to all the matters with which he was charged and volunteered information in relation to a considerable number of further offences.
That was not persuasive evidence of contrition either. By then, the weight of the case against him was overwhelming; there was no reasonable prospect that so many children might be disbelieved. And as to the matters disclosed by the applicant, it was by no means unlikely that they would have come to light in any event.

Now, that is completely contrary to the police evidence to which I referred your Honour at page 224, point 20, that where the police officer said:

The situation is that police were totally unaware of those victims and it was only with the assistance of the prisoner that those matters came into being.

And, of course, it ignores the fact that there would had to have been separate trials. Then he goes on:

There was evidence before his Honour that publicity had prompted one female complainant to contact the police shortly prior to the applicant’s extradition and a male complainant to contact the police shortly after the applicant’s extradition. More complaints were likely to be made as time passed. It must have been apparent to the applicant that nothing could have been more prejudicial to his situation at that stage than for further complaints to be made which he had not disclosed. There was also the risk that, if further complaints came to light after conviction, further charges would be laid and the sentence extended.

And then he said:

To confess to the matters with which the applicant was charged and to disclose others was no more consistent with contrition than with self-interest.

This case now stands as an awful precedent to warn all legal advisers in New South Wales - and this situation has occurred many times since this trial - that if their client is minded to confess to further offences, he should be warned that he can expect no mercy and no reduction from the court if he does so.

McHUGH J: That is not a fair statement of what his Honour is saying.

MR PORTER: It is, if your Honour pleases.

McHUGH J: His Honour is dealing with a judgment. If you look at page 247 of the book there are two grounds of appeal. The sentence was too severe and it was:

manifestly excessive and that it fell above the upper limit of the range of sentences within a sound exercise of his Honour’s sentencing discretion.

There is no point taken.

MR PORTER: That is in the Court of Criminal Appeal.

McHUGH J: Yes, I know, but ‑ ‑ ‑

MR PORTER: But, if your Honour pleases, in the Court of Criminal Appeal the usual ground of appeal is just simply they were too severe. It is unusual to give any grounds further than that.

HAYNE J: If that be the practice that is a practice that will obscure fundamental errors in the whole of the appellate process. Manifest excess is not a synonym for specific error.

MR PORTER: That may be so, if your Honour pleases, but it is very rare indeed and that is why I was somewhat surprised when Justice McHugh drew my attention to it, to find any grounds of appeal other than it was “too severe”.

GUMMOW J: This passage at 294 has to be understood by starting at 289, does it not? It starts with the heading:

Features of the case said to have been given insufficient weight

Then, the first one is, “ admission and voluntary disclosure” and then that is discussed. The discussion of that finishes at the top of 291 and then at line 15 there is contrition and then that discussion continues to 294, then at line 25 you get on to the next one and that is it. At line 40 it talks about other subjective considerations, so there are a number of specific matters that were isolated, as it were.

MR PORTER: He does say at the top of page 291 he:

was entitled to a discount for the saving of public expenditure…..avoided mental trauma to the victims –

That is as far as he goes. But, if your Honour pleases, that is, to say the least, in the light of what is said at page 294, scant regard being made to one of the two most substantial matters in this appeal.

McHUGH J: But one is entitled to conclude that the way the court has dealt with it reflects the argument. You see the heading at the top of page 289, “Features of the case said to have been given insufficient weight”. The learned judge then goes on to deal with each of the criticisms made but there seems to be no criticism made of the waiver point.

MR PORTER: If your Honour pleases, I can find no reference in the judgment in the Court of Appeal or in the judgment of the initial judge to the question of the waiver of his extraditional rights which to me is, quite frankly, surprising but one thing we have clearly shown by the reference we made at the end of the Crown case that these matters were clearly and distinctly brought to the attention of the trial judge and were part of the appeal papers.

KIRBY J: Is the bottom line of your submission that whether or not the point was specifically put to the primary judge or to the Court of Appeal that the matter is so important that even now, even if it be raised for the first time before the High Court is a matter which this Court should require to be taken into consideration by the Court of Appeal.

MR PORTER: It had to be taken into account.

KIRBY J: You do not ask us to re-sentence, you ask us to send the matter back to the Court of Appeal so that the sentencing could be done according to law.

MR PORTER: That is so.

KIRBY J: The point having been reserved within time and now being before this Court for what weight it deserves. If it deserves weight it is something that ought, still the matter being alive, to be taken into account by the Court of Appeal.

MR PORTER: But, your Honour, that would be, if I may respectfully put it, our fall-back position if it were assumed that it was never put before the two other courts. But, if your Honour please, that is a massive assumption, having regard to the fact - I mean, if you are appearing for a prisoner and you tender the extradition papers, you tender the affidavit of his solicitor waiving his extradition rights and, having done that ‑ ‑ ‑

KIRBY J: Well, Mr Byrne is sitting next to you and he was counsel in the Court of Criminal Appeal and it is not unusual for us to ask counsel to tell us if the point was put.

MR PORTER: At page 292, if your Honour pleases, his Honour Mr Justice Sperling refers to the extradition proceedings and puts it negatively against the prisoner, in effect, that he resisted ‑ ‑ ‑

KIRBY J: Where is that, what line?

MR PORTER: At the bottom of page 292.

KIRBY J: I see.

CALLINAN J: Mr Porter, there could not have been any other purpose in putting the affidavit before the court, could there?

MR PORTER: Of course not, no other purpose.

McHUGH J: Well, Mr Porter, what about the point of disclosure? What I would like to know – and you have Mr Byrne there, it is a matter for you whether you want to answer the question – was the specific submission put to the Court of Criminal Appeal that the trial judge erred because he failed to take account of the waive point?

HAYNE J: For my part, I would also wish to know what occurred at the sentencing process if some point is to be taken of this?

MR PORTER: If your Honour please, so far as the sentencing judge is concerned, to deal with the first matter, in the written submissions that went before him, it was said that the prisoner and his legal representative have sought to assist the investigating authorities in relation to the additional matters and the need to obtain consent from the United States authority in relation to those offences. So it was expressly raised before the sentencing judge. In the appeal book at page 313 line 40, in that chronology:

Prisoner’s legal representative, Mr Walsh, contacts Office of the Director of Public Prosecution and advises of instructions to enter pleas of guilty and to waive his rights to extradition.

McHUGH J: Yes, I know, but, Mr Porter, neither what you have just read in the written submissions nor the passage in the chronology indicates that the judge was asked to give a discount because of a waiver, as opposed to contrition or disclosure. That is the point.

MR PORTER: Well, with respect, if your Honour pleases ‑ ‑ ‑

McHUGH J: But is that not the point? You say there are three aspects of what this appellant did. First of all it showed contrition; secondly, his disclosure saved public expense and saved the complainants the trauma of a new trial; but thirdly, he waived rights that he had and that he ought to have it taken into account.

MR PORTER: If your Honour pleases, surely the submission which clearly emerges from the matters I have put to you is this, that he confessed to the 39 extra charges when he got to New South Wales and in pursuance of that confession his solicitor put on an affidavit waiving his rights under the extradition treaty. What more could have been said? Surely the public interest is that these offences should be disclosed. In the ordinary case, that would be sufficient.

McHUGH J: I know that.

MR PORTER: In this particular case it required that extra bit. He had all the incentive in the world not to disclose them and, in fact, he could have disclosed them without being charged.

McHUGH J: I know, Mr Porter, but what I am putting to you is the trial judge took that into account. He said he was entitled to a considerable discount for contrition and for disclosure but, if I understand your argument correctly, you get more out of the extradition point. You want him to be given credit for waiving his extradition rights.

MR PORTER: Which, if your Honour pleases, was part of his disclosure and part of his confession.

McHUGH J: Now, what I have been putting to you is: was that separate point put to the trial judge and was it put as a ground of error in the Court of Criminal Appeal?

MR PORTER: In the trial judge it is put – it is particularly so. It is during the period in which the prisoner and his legal representatives have sought to assist the investigating authorities in relation to the additional matters and the need to obtain consent from the United States authorities in relation to those offences. That is to the trial judge.

Then in the CCA it is said, and again in the written submissions, he also pleaded guilty at the local court in relation to the post-extradition charges. In that regard, as the applicant had been extradited from the United States it was necessary for United States authorities to consent to the applicant being charged in respect of the post-extradition offences.

McHUGH J: Yes.

MR PORTER: The applicant facilitated that process and, indeed, if he had chosen to oppose that procedure it may well have been that the applicant could not have been charged with the post-extradition offences – see affidavit of Gregory Alexander Walsh, 28 October 1996.

McHUGH J: I understand that but I do not ‑ ‑ ‑

MR PORTER: That is putting it pretty clearly, I would submit.

McHUGH J: I do not think it is. It states what the history is and it is perfectly consistent with the argument being confined to matters concerning contrition and disclosure but you do not get anywhere in this case unless you can say that the waiver, as such, is a ground that should have been taken into account.

MR PORTER: That is so.

CALLINAN J: Mr Porter, your position is that you are entitled to such advantages as accrued from the fact of the waiver ‑ ‑ ‑

MR PORTER: That is right.

CALLINAN J: ‑ ‑ ‑ including the three matters to which you have referred and the matter to which Justice Gummow referred, the fourth matter, the encouragement to other persons similarly placed, and the precise articulation of each of those matters may not have been necessary. Is that your submission?

MR PORTER: That is so, that would put my point.

CALLINAN J: But you are entitled - one could assume, that the sentencing judge and the intermediate Court of Appeal would give effect to such consequences as inevitably flowed from that course of action by your client.

MR PORTER: That is so, if your Honour pleases. It is only ‑ ‑ ‑

McHUGH J: That means, does it, that an intermediate Court of Appeal now is a court for the judicial review of convictions and is not an appellate court which deals with the issues raised by the appellant, but has some duty of reviewing convictions or sentences to see whether it can find error?

MR PORTER: Well, I am not so sure that that is so, your Honour, but it does mean this, that if a matter is fairly raised before the Court of Criminal Appeal, the fate of the prisoner does not depend upon the precise manner in which the submission is made to the Court of Criminal Appeal so long as it is clear, and that is an important point.

KIRBY J: Do you say that if you raise the question of the excess of the sentence and if in the course of that you raise the question of the relevance of the extradition, a prisoner, some of whom may be represented, some not, is entitled to look to the legal system to apply the correct principles?

MR PORTER: That is so, but in this ‑ ‑ ‑

HAYNE J: That is to meld, is it not, manifest excess and specific error, and to meld them impermissibly?

MR PORTER: Well, in my submission, it does not meld them impermissibly because what we are asking is for this matter to be remitted to the Court of Criminal Appeal for it to reconsider the question.

HAYNE J: No, you are asking us to find error in the Court of Appeal.

MR PORTER: That is right and we ‑ ‑ ‑

HAYNE J: But what is the error you assign? You said to me earlier manifest excess and - specific error by the Court of Appeal and by the primary judge?

MR PORTER: That is right, and the specific error by the Court of Appeal and by the primary judge is the failure to – does your Honour want me to list them now?

HAYNE J: Yes.

MR PORTER: The first matter is the failure to take into account the public interest in persons disclosing offences not otherwise known to the authorities. Second matter, the public interest in persons extradited for specific offences disclosing other matters for which they were not extradited and waiving their rights so that they can be dealt with by those offences. The next error, if your Honour pleases, is treating the matter of plea of guilty and disclosure of other offences as matters substantially going only to contrition, whereas there are much wider public interest matters raised.

The public interest matters raised are, and I will be repeating what I said before, in the case of paedophilia offences, that the child should not be subject to the trial, that the child should know his allegation has been believed, that the State should be spared expense of a trial – the expense of multiple trials in this case. Now, we say that all of those matters have led to a manifest error which is apparent in the totality of the sentence.

McHUGH J: Let us take them one by one. The first one, public interest in disclosing, and that was taken into account, was it not? You want to put a gloss on this question of disclosure and talk about all its consequences but the question of disclosure was taken into account and it was mentioned by the trial judge that it saved the complainants the trauma of a trial. What else do you want to get out of it?

MR PORTER: But it was taken into account on the basis, we say, of a completely inadequate understanding. Firstly, it was taken to account on the basis that was it or was it not evidence of contrition, which is not the real point at all; and it was taken into account on the basis that they might well have been disclosed anyhow with complete indifference to the extradition matters. In our submission, it is quite wrong, with great respect to your Honour, to say that these matters were taken into account. Matters can be taken nominally into account, but the significance of the matters was not taken into account, and that is manifested by the sentence that was imposed.

To answer your Honour Justice Hayne, we say that those errors led to a manifestly unfair sentence.

KIRBY J: Do you put your case in the alternative, that is to say, you demonstrate specific error of the kind that we have been discussing, waiver and so on, and you have the sentence which you say is manifestly excessive? But once you get up on the first ground or once you get into the Court on the first ground, you are entitled to put the second.

MR PORTER: That is so. But alternatively, we can put it on the basis that whatever the courts may have said, if you do the analysis that Mr Justice Grove did, it is quite clear that either these matters were not taken into account at all or were not given their significance. It is surprising in this case, if your Honour pleases, to find that this judgment of the Court of Criminal Appeal and his Honour’s judgment does not even refer to the fact that he waived his extradition rights, which was a pretty enormous thing for him to do.

It is, of course, the law that if a person pleads guilty and if a person as this man, according to Mr Justice Sperling, did everything that he could do, it is the law that these are matters to be taken into account as evidence of contrition. But, in our submission, the fundamental error of the two judgments, that is of the trial judge and of Mr Justice Sperling, is that the contrition of the appellant is only a comparatively minor matter. It is the public interest that these things should occur. If you take the case of a massive fraud, you might take two years to try it, the person pleads guilty without the slightest contrition, but he is entitled to a very substantial reduction in his sentence because of the saving to the public and to encourage others to do the same. That is why this judgment, as a precedent, is a bad precedent for future cases. It is not in the interests of the public and it is not in the interests of the DPP that it should stand because, however it is read, the most you could get out of it is that some sort of nominal consideration was paid to the appellant for his pleas of guilty and for his confession.

McHUGH J: But it is very difficult to make that statement, Mr Porter. This judgment is directed to this particular accused.

MR PORTER: That is right.

McHUGH J: It is not a general ‑ ‑ ‑

MR PORTER: No, but it has an enormous importance for other people. This is not a rare type of case. In fact, there is another case pending before this Court depending on this one, and this is ‑ ‑ ‑

CALLINAN J: If you take account of the public deterrent effect, you can take account of the other public effect.

MR PORTER: That is right, yes.

CALLINAN J: It is both sides of the coin that have to be looked at.

McHUGH J: And what I was putting to you is at 293 Justice Sperling, made it plain he was talking about this particular accused. He says at line 25:

There was not persuasive evidence of contrition either. By then, the weight of the case against him was overwhelming; there was no reasonable prospect that so many children might be disbelieved. And as to the matters disclosed by the applicant, it was by no means unlikely that they would have come to light.

So he was dealing with this accused. He was not laying down general principles.

MR PORTER: That is all indicative of error. If it could be said of this particular accused that what he has done was not persuasive evidence of contrition, then it could be said of any accused that what he had done was not persuasive evidence of contrition. That is what we say is the destructive effect of this judgment on the public interest. An analysis of that portion to which your Honour has referred me shows quite clearly that any lawyer advising people in this situation in future would have to be very careful about the advice he gave in the light of this judgment.

McHUGH J: It depends upon what the facts of the case are.

MR PORTER: It depends upon the facts of the case, if your Honour pleases. In this particular case that there were 15 accusers. There is no suggestion there was corroboration. It would have been word against word in each case. His Honour is proceeding upon the assumption, apparently, that all the cases could be heard together so that the accused would be swamped by numbers, and that is a false assumption ‑ ‑ ‑

McHUGH J: Yes, but your argument keeps shifting ground. You are saying in one breath the case lays down a general principle and then you want to deal with the specific facts of the case. This part of the judgment deals with this specific case. As far as I can see it states no general principles. It deals with this particular appellant, maybe rightly, maybe wrongly, but it is dealing with him. It does not lay down any general principles.

MR PORTER: Except, if your Honour pleases, that he is looking for evidence of contrition in, in our submission, the wrong way and he is laying stress on something that is not the vital matter anyhow. The vital matter in this case is the public interest in these pleads of guilty and confessions and that is not brought out at all.

HAYNE J: What might be called the non-extradition offences were offences, the commission of which were not previously known before the prisoner acknowledged them.

MR PORTER: That is so.

HAYNE J: It is the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of the offence and confession of guilt of that offence. That is a principle to Ellis to which the sentencing judge referred. Is it your proposition that the policy of the criminal law to encourage disclosure of the fact of an offence leading to significant discount in sentence is supplemented by a further policy leading to greater discount where there is, not only confession to offences not previously known, but also waiver of rights under extradition treaties?

MR PORTER: Yes, it is.

HAYNE J: What is it about the latter aspect that warrants the larger discount?

MR PORTER: Because, if your Honour pleases, the incentive not to confess is greater. The public interest is in the waiver of his extradition rights, if I may put it in that way. That is an additional public interest to the fact that he discloses the offences.

HAYNE J: What is the interest of the public or the public interest that is advanced by the provision of the greater discount than would otherwise be applied for confession to offences not previously known.

MR PORTER: Well, the public interest that is advanced in the case of the ordinary person who confesses to something and is not extradited, is that offences become known and become dealt with, and that is public interest in itself. But, in the case of a person who has been extradited, there is a public interest in the fact that he should be dealt with, not only for the offences for which he has been extradited, but for anything else that he has done. An interest that cannot be met and cannot be satisfied, by and large, unless he himself waives his rights.

HAYNE J: What is the interest of the public that is thus advanced?

MR PORTER: The same interest of the public, in effect, that exists in the disclosure and punishment of any crime.

McHUGH J: That is not a good answer from your point of view, Mr Porter, because it seems to indicate that the waiver has got nothing to do with it and is not entitled to any discount. Is that not the problem for you, that the public interest is in the disclosure?

MR PORTER: No, the public interest is in the disclosure, and I think I clearly said, and punishment for the offence.

McHUGH J: I appreciate that, but not in the waiver. It is the disclosure. The waiver may be a means to the prosecution for those offences. That is where the public interest lies.

MR PORTER: If your Honour pleases, disclosure without waiver would be contrary to the public interest. It would be an evil thing, indeed, if a man could be extradited to Australia for certain offences and say, in effect, “Well, I did, in fact, commit lots of other offences and you cannot touch me.” There is a public interest against that and that is the public interest to which I am referring.

McHUGH J: I think if an accused makes a confession in those circumstances one would think there would be little doubt that the

United States authorities, in such a case, would give their consent, with or without his waiver.

MR PORTER: That is very much a matter for speculation.

McHUGH J: Well, it is.

MR PORTER: Your Honour may recall the case of, I think, usually known as “Ivan the Terrible”, in the country of Israel, where he turned out not to be “Ivan the Terrible”. He was extradited from the United States for those offences and no other and there seemed to be a strong case against him that, in another camp, under a different name, he had done precisely the same, but the United States did not waive the right and he went back to the United States.

McHUGH J: There have been more than one case where people have been acquitted and then said later that they did it. There is a well-known case in England - - -

MR PORTER: Your Honour, in my experience in the law, and it is very considerable, I know of no case in which the extraditing country added to the charges without the consent of the extradited person.

McHUGH J: No, I do not know of any, either.

MR PORTER: So that what he did was no mean thing. There was no insignificance about it. There is no way you can say, “Well, if Mr Walsh had not sent that affidavit, the United States authorities would have agreed to the additional charges”. It is most unlikely.

McHUGH J: Yes. Is there anything further?

MR PORTER: Those are my submissions, thank you, your Honour.

McHUGH J: Thank you, Mr Porter. Yes, Mr Buddin.

MR BUDDIN: May it please the Court. Your Honours, the appellant’s notice of appeal appears at appeal book 324. The first ground numbered 2(a) asserts that:

the Court of Appeal erred in concluding that the overall sentence imposed upon the applicant was not manifestly excessive –

Such a complaint appears from the notice of appeal that was filed in the Court of Appeal to have been the sole ground of appeal in that court.

The other matters raised in the notice of appeal are, in our submission, in effect, particulars of that more general complaint, that is, by reason of the severity of the sentence imposed it can and ought to be inferred that either too much weight or too little weight was given to the relevant sentencing considerations. That seems to be a feature of the written submissions of the appellant as well – at least one part of them – that the total sentence is out of proportion to the appellant’s criminality.

GUMMOW J: So, are you saying Mr Porter has been permitted to depart from his notice of appeal in developing the argument this morning?

MR BUDDIN: That is it, in part, but it also indicates ‑ ‑ ‑

GUMMOW J: But he was not departing from the understanding on which he was granted special leave.

MR BUDDIN: That may be so.

GUMMOW J: That may not be reflected in the notice of appeal that - - -

McHUGH J: The notice of appeal, I think, reflects what was the original notice of appeal in the special leave application where extradition and waiver, in my recollection, has no great run.

MR BUDDIN: Yes. The other significance that is attached to what appears in the appeal book is that those matters that are agitated in addition to what appears at ground 2(a) simply indicate that this is really an appeal
against manifest excess and that the grounds agitated there are but particulars of that ground.

McHUGH J: I do not think you should proceed on that basis, Mr Buddin. We would never grant special leave except, perhaps, having regard to what Justice Kirby said, in a very extreme case. In a question of excessive sentence, it is not this Court’s role to be dealing with excessive sentences. That is for the Courts of Criminal Appeals but ‑ ‑ ‑

MR BUDDIN: That is my point.

McHUGH J: Yes, well, I understand that but there are some important questions of principle raised by Mr Porter and the first one, he says, is a trial judge should take into account the question of waiver of extradition rights as an independent ground. Now, that seems to me to raise an important point. What is the Crown’s attitude to that?

MR BUDDIN: Well, the first thing to be observed about it is that it is a matter that falls for determination in the context of the appellant’s claim for a discount on account of his undoubted assistance to the authorities. It is subsumed within that general category of matter. The question is not his entitlement to such a discount - that is readily conceded by the respondent ‑ but it is the question of the weight to be given to it.

McHUGH J: Do you accept that the waiver of extradition rights in respect of offences not known raises three things: contrition, disclosure and waiver? Do you regard them as three separate matters?

MR BUDDIN: No.

McHUGH J: You do not.

MR BUDDIN: Our position is that it is the first two that matter, there is nothing value added about the third in the circumstances of this case.

GUMMOW J: In any case?

MR BUDDIN: I would not want to answer the question more broadly but in this case it is a question of weight considering that general category of co-operation with the authorities. In this case what happened was, first of all, leaving the jurisdiction; secondly, remaining away; thirdly, resisting extradition; then ‑ ‑ ‑

McHUGH J: He was entitled to do that.

MR BUDDIN: Absolutely, no question of that but, nonetheless, they are matters to be weighed in the balance as to the overall weight to be given to the question of assistance to the authorities. The question is, what was operating in a relevant sense at the time when the appellant made disclosure of these otherwise unknown offences? Let us just accept that that is an accurate description because there seems to be just a little bit of doubt about that. What the learned sentencing judge found was that, in effect, these were offences that would otherwise not have come to light and that might have been a generous assessment of the situation. Once the code of silence is breached, experience indicates that the dam then overflows and, of course, there was a protection of anonymity that this particular appellant received.

But, at the point in time at which he found himself back in Australia, having been extradited, there is a question of what he was then going to do. There are a number of matters in relation to which he had been extradited. There are a number of separate complainants. The evidence did not turn solely upon those complainants because some of them, some of the offences, were committed in the company of others. In other words, there were eye witnesses. Perhaps, unusually, in cases of this type. The appellant had had ‑ ‑ ‑

GUMMOW J: That would make the existence of the extradition privilege and its waiver all the more important, would it not?

MR BUDDIN: I am sorry?

GUMMOW J: That circumstance you have just mentioned would make all the more important the fact that, notwithstanding those circumstances, there was still, unless something was done about it, the subsisting extradition privilege.

MR BUDDIN: Yes. I accept that, but the question confronting the appellant was, “Now that I am back in the country and there has been some publicity about this, albeit limited, and complainants have come forward, what should I now do? The affidavit of the solicitor says that I told him, in effect, that disclosing other criminality would be likely to lead to the preferment of further charges and lengthier term in custody.” That is what the affidavit says in terms. There is no reference there to the question of “waiver of any rights” at that stage.

KIRBY J: But that does not have to be mentioned. It had to be waived. I mean, often in these cases what is the impediment to assisting the authorities is that if it is not revealed then the offences may not be discovered with the public interest consequences Mr Porter mentioned. Here there is a second gateway and that is that even if revealed, there has to be waiver or they cannot be prosecuted on this offence and it is the second gateway that is said not to have been given due consideration.

MR BUDDIN: Well, I understand that, your Honour, but if we can just go back to the moment at which he made disclosure, what was operating in his mind. Sound legal advice suggested that the disclosure of otherwise unknown criminality was going to see him get a significant discount on sentence. Once he decided upon that course of action there was really no turning back. What was he then going to say at sentence: “Notwithstanding the fact that I have disclosed all this other criminality, I now want to take an extradition point”? Where then contrition?

HAYNE J: But the sentencer could hardly sentence him for things other than those to which he properly pleaded guilty. Could he? Is that what you are suggesting?

MR BUDDIN: No.

McHUGH J: His disclosure, together with his waiver, enabled him to be prosecuted. Now, the point I think you have got to face up to is why was he not entitled to a discount for the waiver, quite apart from any question of contrition. Supposing he was a person who said, “I do not feel the slightest bit sorry for any of these children. I am a dedicated paedophile and I think there is nothing wrong with it. I do not feel sorry for them at all but I can see from my self interest point of view, I want to get on with my own life, and I can see these authorities will pursue me so I will waive my rights and let them prosecute me and get it all over and done with now.” Even given that hypothesis, why is he not entitled to have the waiver taken into account as well as the fact of disclosure. Why is he entitled to be better off than the person who can be prosecuted in any event, once he discloses offences?

MR BUDDIN: I am sorry, I am not sure that I caught the last part of your Honour’s – - -

McHUGH J: Take somebody like Father Ryan. He was here in the country. He had no extradition rights. When he disclosed his offences, he could be prosecuted for them. But this man could disclose them to the world. He could have put an advertisement in the Sydney Morning Herald and he could not be prosecuted. He had to take an additional step. He had to waive his rights. Now, why is he not entitled to a discount for that?

MR BUDDIN: Might I ask your Honour rhetorically, what rights was he waiving?

McHUGH J: He was waiving his rights to go back to the United States the moment these sentences had finished.

MR BUDDIN: It was not a case that these offences could never be prosecuted.

McHUGH J: No, it was not.

MR BUDDIN: There is provision for that. It was not the case that at the time of sentence he could not be prosecuted, albeit that he could only be prosecuted with the consent of the United States Government. In other words, the question was in the hands of someone else. Now, he did not know whether that consent would be forthcoming or not.

HAYNE J: Just so.

GUMMOW J: But he well understood what happens, though.

MR BUDDIN: But how could he make an assessment about that? I readily concede that he facilitated ‑ ‑ ‑

GUMMOW J: You can ask any practitioner from the field, that is the way extradition law is understood to work, is it not?

KIRBY J: If he is properly advised, presumably he would get the advice Mr Porter said. It never happens.

McHUGH J: You could hardly imagine the governments, after having spent money on extradition proceedings, saying, “Right, we are going to go through all this again and bring him back to deal with these offences”.

KIRBY J: One might say especially the United States “with due process”.

MR BUDDIN: I love the pronunciation. But the point is that he is not to know that. I mean, what right has he waived? What he has done is to facilitate the process whereby the consent of the United States Government might ‑ ‑ ‑

McHUGH J: Yes, but Mr Porter’s point is there is a public interest in waiver. It does not matters whether he knows of it or not, but once people who are extradited know that they are going to get a discount for discloser and if they waive, then the public interest will be served because more people will make disclosures and waive their extradition rights – maybe not many but some will, particularly in cases such as this where a person’s conscience is burdened by what he or she has done and wants to get it off the chest.

MR BUDDIN: Given all that, your Honours, what is to suggest that it was not in fact subsumed within the discount that was given by the learned sentencing judge?

McHUGH J: That is what worries me. That is why I was putting these things to Mr Porter. I am not sure that the trial judge was ever given an opportunity to deal with them, but there are two stages: first of all, whether there is a general principle; and secondly, whether or not the point has really been raised sufficiently by this accused, this appellant.

MR BUDDIN: At the end of the day it is our submission that one thing is very clear about this sentencing process and that is – notwithstanding my learned friend’s endeavours to sidestep this aspect of the matter – that only a quarter of the entire minimum term was attributable to the post-extradition matters: 25 per cent, 3½ years of 13½ years. So in the mix, in the result, there is nothing to suggest that he could possible have been entitled to anything further by way of a discount for the general question of co‑operation with the authorities.

HAYNE J: Well, all of that, if I may say so, seems to compress far too many questions. Is there a public interest in having persons who have been extradited waive extradition privilege? If there is, what is that public interest and how, if at all, is that to be reflected by a sentencer? Until you know the answers to those questions, how do you get to the conclusory statements that you assert?

MR BUDDIN: Well, I was going to the conclusory statement on the basis that those matters that your Honour has just adumbrated were to be determined against me and, of course, I am not accepting that.

HAYNE J: Well, that seems to assume that - I understand how you say the public interest, which not yet identified by you, is to be reflected by the sentencer. At some point in your argument, I would at least be much assisted by you grappling with those questions: Is there a public interest? If there is, what is it? How is it to be reflected?

GUMMOW J: I thought you were saying as to one, yes, there might be, but this case was not one. You were not prepared to tell any more.

MR BUDDIN: I was putting that in a context of an argument about weight and weighing in the balance some countervailing factors, namely, his attitude to extradition before it occurred; that was the context.

GUMMOW J: I know, but I would be assisted if you would grapple with what my colleague has been putting to you.

McHUGH J: Yes, I think we are interested in the principle, to start with, before we drop down to the concrete situation in which this appellant finds himself. When a prisoner waives his extradition rights or privileges, discloses offences and is sentenced for them, how should the trial judge approach the matter? What should he take into account in giving the prisoner a discount, if any?

MR BUDDIN: In this particular case, what his Honour did was to assume that the offences would not otherwise have come to light. In other words, they could not otherwise have been prosecuted but for his assistance.

McHUGH J: Just forget about this case for the moment; just let us talk about it as a matter of general principle. You are out at your old university giving a lecture on criminal law on this subject. What would you be telling the class about this particular issue?

KIRBY J: Consistent with your duty as Prosecutor for the Crown in this case.

MR BUDDIN: Is there anything else anybody would like to throw in?

HAYNE J: Well, if you would write your number at the top of each sheet and ask ‑ ‑ ‑

MR BUDDIN: I think I would like to copy the person next to me at the moment. Clearly, anything that is capable of facilitating the prosecution of a person ought to be taken into account or weighed in the balance.

McHUGH J: Could I ask you this further question. Should the person who waives the extradition privilege or rights be given any greater discount than the person who simply discloses offences which are not known?

MR BUDDIN: No.

KIRBY J: That cannot be so because the obstacle in the way of prosecuting for offences where you simply do not tell is the obstacle of not discovering, but the obstacle in the way of waiver is an additional obstacle, it is a second gateway. For that second gateway, for opening the second gateway, the person who opens it is entitled surely to some allowance because not only is there the first gateway of discovery but there is the second gateway, even if discovered, of prosecution. That is why the second gateway has a value in itself.

MR BUDDIN: I must say I am having difficulty articulating the answer to the question that seems to necessarily have started this part of the debate which was Justice Hayne’s question about what is the identifiable public interest, and I have been trying to think about any statement of principle that might provide an answer.

HAYNE J: The criminal law punishes those who confess to unknown offences more leniently than others so that wrongdoing does not go unpunished in society, but it punishes them more leniently so that they gain the advantage from ensuring that less wrongdoing goes unpunished than it does anyway.

MR BUDDIN: Yes, and that is why I made the observation that anything that facilitated the prosecution of offenders must be weighed in the balance and therefore, as a matter of first blush impression, that must also extend to so-called waiver.

HAYNE J: Well, may this not then invite attention to what is meant by extending leniency? We are not engaged in a mathematical exercise. It would be, I think, wrong to say, “For a plea of guilty you get X per cent off what otherwise would come”.

MR BUDDIN: Might I embrace that, your Honour? That seems to be the approach of Justice Grove and it has sometimes been called the two-step approach, very much criticised in Victoria, and there are a number of cases in our written submissions that go to that question and that is the identification of a discrete and quantifiable interest attributable to one or more factors.

KIRBY J: The suggestion here is that the second gateway interest has not been taken into account at all. Therefore, whether it is a two‑stage or a one‑stage approach, there is an error of principle. It is an error of principle which authorises this Court exceptionally to say it has to be set aside and you have to take it into account. What weight you give it is for you, who have much more experience with criminal sentencing than we do, but it has to be taken into account. What is wrong with that?

MR BUDDIN: The question is still an identification of what is to be attributed to it by whoever is doing it relative to what actually occurred. I repeat the submission: what more than a quarter only of the minimum term on account of this general area was even open?

KIRBY J: There is no point asking us that question. We are not sentencers.

McHUGH J: We do not know. If the judge had thought about waiver, he may have taken a different view. More importantly, if Justice Sperling had thought about it or had his mind directed to it, he may have taken a different view about the excessiveness of the sentence.

MR BUDDIN: The first problem is, we do not know.

McHUGH J: I know we do not, and that is one of Mr Porter’s problems, it seems to me having regard to the notice of appeal, but the case is before us. Special leave having been granted, we have to deal with it. The fact that it might be doubtful whether the point was ever really raised is a strong ground for refusing special leave but special leave having been granted, we now have to deal with it. The matter is before us.

MR BUDDIN: One of the problems is we do not know that it was not taken into account by his Honour as well. One cannot assume that it was not taken into account by him and, therefore, conclude that it is appropriate for it to be remitted so that it can be taken into account.

McHUGH J: I would feel confident that it has not been taken into account, as such. It is not mentioned. It is difficult to believe that the very experienced trial judge or Justice Sperling would have taken such a matter into account and fail to mention it in their respective judgments.

MR BUDDIN: I am not sure that I can really say much more in relation to that aspect of the matter.

McHUGH J: No.

MR BUDDIN: Do your Honours wish to hear me about other aspects of the matter?

McHUGH J: It is a matter for you. You have heard what Mr Porter said and the way he has put his case. It is really a fairly narrow case in many ways.

KIRBY J: But I think the Crown has a fair objection that to this very minute, to the last stage, the notice of appeal has not articulated the point which got special leave and has been agitated in the submissions. I think Mr Porter really ought to apply to amend the grounds of appeal and then we should hear what you have to say as to whether we should permit that. But we have very detailed written submissions from both sides and they have been read by the Court, so I do not think there is much point in repeating all that.

MR BUDDIN: I am not going to take a point that we have really been taken by surprise and seek to object. I do not think that is the position of the respondent.

McHUGH J: No, well, that is very fair of you but I think ‑ ‑ ‑

MR BUDDIN: I mean, personally, that might be the case but ‑ ‑ ‑

McHUGH J: I think Mr Porter should file an amended notice of appeal and should do it very quickly, certainly by Monday next and, speaking for myself and I think other members of the Court, we would appreciate some further written submissions on this issue of the public interest aspect which Mr Porter has put in the forefront of his argument.

KIRBY J: There may be cases in the United States where the extradition point has been raised in sentencing.

MR BUDDIN: That is probably so. The reason why I hesitate for a moment is, of course, the constitutional protections that exist in the United States.

McHUGH J: Yes.

MR BUDDIN: I suppose the point I was really seeking to make and I know that it ‑ ‑ ‑

GUMMOW J: Due process questions are involved in public interest questions. I am sure it has been discussed.

MR BUDDIN: Yes.

McHUGH J: What is the public interest in the waiver, that is the ‑ ‑ ‑

HAYNE J: For my part, that tripartite question I put to you, “Is there a public interest? What is it? How is it to be reflected?” for me are the important ‑ ‑ ‑

MR BUDDIN: I am sorry, could we just take a note of that, your Honour, so we know what it is that the matters ‑ ‑ ‑

HAYNE J: You will get a transcript of it.

MR BUDDIN: Thank you, your Honour, yes. The only additional submission I was going to make goes really to the question of weight and I think your Honours have indicated that that is not really a matter for you. If error is established then that is for another court to ‑ ‑ ‑

KIRBY J: I suppose it is open to the Crown, though, to say that this Court does not sit here to correct mistakes in reasons, we sit here to correct errors in orders and, notwithstanding the success of Mr Porter’s submissions, if he succeeds, if looking at the order it cannot be said that it demonstrates error then the Court does not tarry to give expositions of theoretical points, it simply says, “Well, whatever may have been the error in the reasoning, the ultimate order is correct”.

MR BUDDIN: I think I have really identified that as my fall-back position and I do not know that I can usefully add to that, but I certainly embrace what your Honour says about it.

McHUGH J: Yes.

MR BUDDIN: But, I suppose, without knowing really what the answer to the first part is I am not sure quite how we are going to put the second part but we are certainly not ‑ ‑ ‑

GUMMOW J: The first part has to be approached, not just by reference to this criminality here, which is particularly distressing obviously, but other sorts of criminality, across the field of criminality. These extradition points can arise in all sorts of criminal contexts.

MR BUDDIN: Yes. My limited reading in the area indicates that waiver of speciality is really a matter that is seen to be in the interests of the surrendering country, rather than the individual.

GUMMOW J: It gets bound up with respective State sovereignties.

MR BUDDIN: Yes, and one readily understands it. I mean, political crimes and things of that nature, obviously, are the touchstone for concern in the area, but, I have heard what your Honour the presiding judge has said and we, of course, abide by that, but I did want to indicate that we thought responsibly, as the Crown, we ought not to be taking a technical objection.

KIRBY J: No doubt Senator Pinochet, or his legal team, would be studying this area very closely, I would think.

MR BUDDIN: Your Honour, I would think that he has been sitting up late at night waiting to read the transcript on the Internet.

KIRBY J: Could you just tell me this? Assume that the appellant had not waived his right, but it came to the notice, not perhaps of the 37, or whatever the number was, but one or two, because of the publicity, what could then be done, as a matter of practice, by the prosecuting authorities?

MR BUDDIN: Your Honour, there is, in Article 10, I believe it is - as I understand it, the regulations have really brought into municipal law the treaty between the United States and Australia, that is as I understand it.

GUMMOW J: There is a case in the Federal Court to which I was a party which construe that agreement with the United States, whatever it was called, Hughes v United States, I think.

MR BUDDIN: Yes, I vaguely remember a reference to that. Your Honour, as I understand it ‑ ‑ ‑

KIRBY J: Could you include reference to any cases of that kind when ‑ ‑ ‑

MR BUDDIN: Yes. Your Honours, can I indicate this? My understanding is that matters that come to light can still be prosecuted. It is not as though there is a bar to prosecution for all time. As I understand it, the situation is that there is a window of opportunity given to the person who has been extradited. They have 15 days – I think it is 15 days – within which to get out of the country again.

KIRBY J: That could not happen in this prisoner’s case.

GUMMOW J: I think it varies from agreement to agreement.

MR BUDDIN: It does, but I am talking specifically. I think it is 15 days. There is a window of opportunity. The other thing is that if the person leaves the country and then returns, there is no protection. So, in other words, there is a 15-day window of opportunity and then, of course, proceedings can start anew and, viewed from the perspective of an extraditee, it is a question of where you want to spend the rest of your life. But that is, as I understand it, what Article 10 is about.

KIRBY J: Well, he is sitting there in prison in New South Wales unable to leave and this complaint is made. The prosecuting authorities have the complaint. I am trying to weigh what is the benefit to our community of his waiver? What then happens? Do the prosecuting authorities have to communicate through the Australian Government to the Government of the United States and ask them to enlarge the basis of extradition?

MR BUDDIN: Yes.

KIRBY J: Then if they refuse, do the prosecuting authorities have a right then to move a court in the United States to enlarge the basis of the extraditable offences?

MR BUDDIN: Does your Honour mean a review court in the United States?

KIRBY J: Yes. Is there anything you could do? Say, the United States, as I understand is the practice says no, is there any way that then the Crown can seek to be represented before a court or tribunal or review body in the United States to have the extraditable offences enlarged or is it just stuck with the decision of the United States of America?

MR BUDDIN: Is the question whether or not the Australian prosecuting authorities have standing in the United States in those circumstances?

KIRBY J: Yes. To seek an enlargement of the bases of extradition. If we are weighing what is the advantage to the people of Australia, the Crown representing the prosecuting authorities, the DPP, then you really have to think through what is the consequence if he digs in his heels and says, “I am not going to waive anything”.

CALLINAN J: It is an enormous expense for the extraditing country in practice. I know that from my own experience. It is impossible to conduct foreign extradition proceedings unless representatives from Australia go over there.

KIRBY J: Barton, Mr Barton was a case, was he not, in South America? They had to send – Justice Priestley was there for months – a couple of years.

McHUGH J: They had to send Justice Callinan to Spain.

CALLINAN J: I went to Majorca.

KIRBY J: I see, in another case.

CALLINAN J: And I might say that the Australian Legal Officer from Brussels was heavily engaged for months and months both before and after ‑ ‑ ‑

KIRBY J: It cost millions, I think, that particular case I have seen in the press. Does not this all demonstrate the value of waiver?

MR BUDDIN: Well, as I understand it for what it is worth, it very much depends on the country with whom one is engaged and, as I understand it, I mean this is simply an understanding, relations with the United States are simply a lot easier in terms of facilitating the process than is the case ‑ ‑ ‑

KIRBY J: That may be so but they are a very sophisticated legal system and they know about due process and they have constitutional obligations in respect of due process. I do not think we should talk in generalities if we are trying to weigh what is the advantage to the Australian community of waiver. I think we are entitled to look to the parties to trace through what would have happened in this case if the appellant had not waived and then you had some complaints and I gather two people did come forward because of the publicity of the extradition and wish to prosecute them. Could you have done it? In practice, it seems likely that it would have been extremely difficult and this is not just discovery. This is getting over the procedural and legal hurdles of actually getting a case up to prosecute this man or whether he would just be entitled to say, “You can prosecute me for what I have been extradited for and beyond that you can get lost.”

CALLINAN J: How long did the extradition proceedings take that were conducted, do you know?

MR BUDDIN: In the United States?

CALLINAN J: Yes, just approximately.

MR BUDDIN: They were certainly in the months, approaching a year. I believe the case went all the way to the United States Supreme Court.

KIRBY J: Eight months.

MR BUDDIN: Yes it was certainly months, rather than weeks.

McHUGH J: Yes. Thank you, Mr Buddin. What were you going to say?

MR BUDDIN: I was just going to say, is your Honour contemplating setting some sort of timetable?

McHUGH J: Yes, I thought we might put Mr Porter on 14 days and you, seven days after that. It gives you 3 weeks.

MR BUDDIN: Yes, thank you. Sorry, I am going to ask another question. Is your Honour inclined to indicate precisely what the scope of the inquiry should be? I mean, I have picked up pieces as we have gone along.

McHUGH J: I think what we are principally interested in is what is the public interest in an accused waiving his or her extradition privileges or rights? That can be a fairly wide-ranging inquiry, having regard to some of the matters that Justice Kirby has put to you.

KIRBY J: Justice Hayne has provided the conceptual framework of the three questions. I have raised some practical issues relevant to the second of his Honour’s questions, namely, what is the public interest? If you do the sums and work out the cost, the inconvenience and the unlikelihood of success, then you have, as it seems to me at the moment, the likelihood that this is of very substantial public interest in Australia to get people, including for the reason Justice Gummow mentioned, namely to encourage others to come forward.

MR BUDDIN: But we are only talking about, as a general principle, rather than this particular case.

KIRBY J: Yes, but to answer the second of Justice Hayne’s question, “What is the public interest in this case?”, you have really got to trace through what would have happened with the appellant if he had dug his heels in and you had two complainants and wanted to prosecute others. Leave aside the 37 other complainants that you would never have heard of or may not have heard of.

MR BUDDIN: Thank you, your Honour.

McHUGH J: Yes, Mr Porter.

MR PORTER: In the discussion your Honour has just been having, in our written submissions we relied, of course, on the American treaty and the regulations. We should perhaps have relied more strongly on the Extradition Act, section 42, which seems to cover all the situations and it says, in effect, that, relevant to this, he cannot be tried for any other offence. He can only be tried for:

any other offence in respect of which the country consents to the person being so detained or tried, as the case may be -

that is section 42(a)(ii). In other words, the crucial matter is the consent ‑ ‑ ‑

GUMMOW J: That is in Extradition Act 1988, is it?

MR PORTER: That is right, yes, 1988, section 42. So the crucial matter is the consent to the United States. His consent is a matter which the United States, apparently in this case, required, and one can understand why, but if he waived his rights, you still need the consent of the United States.

GUMMOW J: You can modify the Act under section 11. It is not quite as simple as that. The Act provides for modification by regulation in relation to particular treaties.

MR PORTER: That is so, yes, but so far as this particular case is concerned ‑ ‑ ‑

GUMMOW J: Certainly what you meant is the general principle.

MR PORTER: So far as this particular case is concerned, the treaty and all - it would appear that the simple situation is that he cannot, by himself, waive his rights, the right is the United States.

GUMMOW J: It is the sovereign right.

MR PORTER: That is right. The United States must consent but it is most unlikely to consent unless he waives it and that is what in fact occurred in this case.

HAYNE J: As for questions of how long it takes, as appears from pages 313 to 314, arrest on 15 August 1995, eventual return to Australia on 26 April 1996.

MR PORTER: The figure I was given was eight months. I am not too sure how that works out. The questions that your Honour Justice Hayne raised, “Is there a public interest and is there public interest in the waiver?”, well, there is a public interest in the same way as there is a public interest for disclosure of such offences, the disclosure of such offences without the waiver would be useless; in fact it would probably be counterproductive. It would be wrong that people should be able to – there is no advantage to Australia if someone says, “I confess to these matters but I can’t be prosecuted”. So, the public interest in the non-extradition case is in the disclosure and the punishment, the disclosure and the prosecution, so the public interest in the waiver is to enable the prosecution.

The important question, “How is the public interest to be reflected?” - and this is the vital question, in our submission - if you look at it, this is one of the public interests that is similar to the plea of guilty, to the disclosure offences and then the public interest in the waiver. The way it should be reflected is in a sentence and reasons for sentence which will encourage others to do likewise. That is how the public interest should be reflected. That is the whole object. In New South Wales the common law has, in effect, been put into section 439 of the Crimes Act. But, fundamentally, the way it should be reflected - I am not saying that 10 per cent or 50 per cent ought to come off, or anything like that. There is a simple test. Will people who read the judgment be encouraged to do likewise by virtue of the judgment? In this particular case, we would submit that what should have occurred is the judgment should have made it manifestly clear that it was to the advantage of persons in a similar position to this appellant to do what he did.

CALLINAN J: To encourage the others.

MR PORTER: I hate to use that phrase because it was used in the case of ‑ ‑ ‑

CALLINAN J: It is not the only time it has been used, Mr Porter, it has been used subsequently lots of times.

MR PORTER: Yes, it has been used subsequently lots of times but one does not realise the first time it was used, it was used very ironically indeed. But that, in our submission, is a simple test as to how this public interest should be reflected in the judgment. If, in fact, a person who is in a somewhat similar position to this appellant reads this judgment, is he going to be encouraged to do likewise? If he is not going to be encouraged to do likewise, then the public interest has not been reflected in the judgment.

KIRBY J: What do you say about Mr Buddin’s fall-back position, that when you actually look at the sentence, look at the multitude of offences and look at the seriousness of the offences, the Court not being here to correct reasons but to correct orders, that the actual final ultimate order is not - whatever criticisms may be made of the way we got to it and the way the reasons were given to support it, that the order is not wrong?

MR PORTER: If your Honour pleases, I am glad you asked me that question. We have a simple answer to that. Thirteen and a half years in maximum security under protection is, to say the least, a sentence which some years ago would have been said to be inhuman. When the British ran their royal commission on the death sentence it was said that to keep a man in confinement, actual confinement, for more than 10 years was inhuman. There was plenty of evidence to indicate that such a person was likely to commit suicide or go insane.

CALLINAN J: Mr Porter, how many lives did he ruin, really?

MR PORTER: He may have.

CALLINAN J: Appalling consequences for these offences, really.

MR PORTER: I appreciate that, if your Honour pleases.

McHUGH J: There was a time during your career at the Bar when in the pack rape cases, for one incident of rape, that people were getting life. Justice McClements and other justices were giving people life for rape.

MR PORTER: Well, it was mandatory. As a matter of fact, I think when I first came to the Bar in 1948 ‑ ‑ ‑

McHUGH J: The death sentence was ‑ ‑ ‑

MR PORTER: I think when I first came to the Bar in 1948 there was a mandatory death sentence for rape. It was then changed by legislation to mandatory life.

McHUGH J: Yes, but they were still getting life even afterwards.

MR PORTER: But it was nearly always commuted. For instance, if you take the case of Garvie, which was probably the worst rape case in the last 50 years in New South Wales, one of the worst, and he got out, I think, after about six years or something like that, and then, of course, he committed rape and murder. I mean, this experiment that we are now going through with truth in sentencing in which we have enormous sentences of actual confinement, another generation is going to say that we were more inhuman than the people who inflicted the death penalty. These are tremendous sentences.

I mean, I pay due regard to what Justice Callinan says, and I make no excuses for my client in this, they were terrible offences, but it is a terrible sentence, 13½ years in maximum security under protection.

McHUGH J: Well that depends, does it not? What if he is sent to Cooma or some place like that? Is that not where they send these ‑ ‑ ‑

KIRBY J: It would be very cold.

MR PORTER: I think Cooma has been closed and, in point of fact, it was originally intended as a sentence for sex offenders and it was, in fact, believed - according to when I acted for Corrective Services - I have been out at Cooma – that the cold would help their rehabilitation.

McHUGH J: So that is closed now?

MR PORTER: I believe it is closed now.

McHUGH J: Is there no place for sex offenders, that they send?

MR PORTER: Junee?

McHUGH J: Junee.

MR PORTER: But this man is not at Junee, he is in Goulburn.

McHUGH J: Yes. Well now, will you amend your notice of appeal by 4 pm on Monday?

MR PORTER: We will amend our notice of appeal.

McHUGH J: And within 14 days put written submissions in, concerning the points that have been isolated?

MR PORTER: If your Honour pleases.

McHUGH J: And seven days after that for a reply for you, Mr Buddin.

MR BUDDIN: If your Honour pleases.

McHUGH J: Thank you. The Court will reserve its judgment in this matter. Adjourn the Court until 10.15 on Tuesday.

AT 12.12 PM THE MATTER WAS ADJOURNED

[1999] HCATrans 114

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