Aggarwal v the Queen B10/2002

[2002] HCATrans 583

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B10 of 2002

B e t w e e n -

ANITA AGGARWAL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 11.44 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MR P.W. MURLEY for the applicant.  (instructed by Sharma Lawyers)

MR M.J. GRIFFIN, SC:   May it please the Court, I appear with my learned friend, MR P.J. CALLAGHAN, appear for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

GAUDRON J:   I think you received a communication from the Court as to the Judiciary Act implications.

MR SOFRONOFF:   I did, your Honour.  Yes, so as a consequence, in our submission, the application raises three issues suitable for consideration by this Court.  The first of those is whether section 188 of the Queensland Act applies to prosecution and sentencing for Commonwealth offences.  The second question relates to the administration of justice and the duties of a Crown Prosecutor in adopting inconsistent positions with respect to the same evidence.  The third matter ‑ ‑ ‑

GAUDRON J:   How does that become a justiciable issue?

MR SOFRONOFF:   For the same reason, your Honour, in R v Tran.  This Court referred to, for example, the decision in Anderson in New South Wales, where the Chief Justice said to the effect – this appears in Tran at paragraph [148].  After referring to the duty of fairness of a Crown Prosecutor the Court went on to say:

Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed.

Here, your Honour, we ‑ ‑ ‑

GAUDRON J:   But this is a different situation, is it not, entirely?

MR SOFRONOFF:   It is, your Honour, but the sequence of events, if I might outline them very briefly and without the detail in the application book, is this:  the applicant was sentenced in the first instance on the basis that she committed the offence for her father and the Crown submitted to that effect.  The Crown then urged, and indeed secured, her father’s conviction on the basis that she committed the offence for her father.  Indeed, the Crown called the applicant as a witness to prove that fact and when she would not say that, they had her declared hostile, cross‑examined her and submitted to the jury in closing address that she had indeed done it for her father.

The Crown has, just last month, charged her with perjury on the footing that when she swore at her father’s trial that she did it solely for herself, that was perjury and yet, to get an increase in her sentence before the Court of Appeal, they submitted that what she swore was true.  In our submission, that raises an important issue as to whether the Crown, like some commercial litigant, can properly adopt inconsistent positions in respect of the same witness’s evidence ‑ ‑ ‑

GAUDRON J:   I can understand what you say about the apparent conflict, but what legal issue does it raise?  The application was brought, there was standing to bring the application – assuming section 188 applies – there was standing, there was jurisdiction, and presumably this was an argument that was put to the Court of Appeal and rejected.  But anyway, it might be a discretionary matter for not reopening but, once the reopening had occurred, where does it leave it?

MR SOFRONOFF:   Your Honour, in our submission, it raises a question about the due administration of criminal justice and the scope of the Crown’s liberty to adopt conflicting positions with respect to a person merely to get a result, merely out of utility.

GAUDRON J:   But does it go to anything other than the discretion to reopen as a matter of law in this case?

MR SOFRONOFF:   The answer is:  only to this extent, your Honour.  It raises an issue whether the application to reopen was an abuse of process.  We submitted to that effect to the Court of Appeal. 

GAUDRON J:   But was that after the matter was reopened?  I had some difficulty following both the nature of these proceedings and the course they took.

MR SOFRONOFF:   Could I explain that, your Honour. The applicant was originally sentenced in, I think it was June 2001.  On 16 October 2001 an application against that sentence by her was allowed and her sentence was reduced by the Court of Appeal to a release on her own recognisance on the condition that she be of peace and good behaviour for four months.  Her father’s trial then started almost immediately.

KIRBY J:   This was on the footing that she had gone to the aid of her father of her own initiative?

MR SOFRONOFF:   No, that she had done it for her father, and partly for herself, because she told a lie to quarantine officers, but that predominantly she had done it to aid her father.

GAUDRON J:   She did not say that, did she?  She did not say that at any stage.

MR SOFRONOFF:   No, she did not say that at any stage.  The Crown submitted to that effect at first instance in her sentence and the Court of Appeal on her application to reduce her sentence inferred that that was plainly so and on that footing reduced her sentence.  Almost immediately, she was called by the Crown at her father’s trial – when I say almost immediately, I mean within days – and her evidence was led to establish, consistently with the sentencing, that she had done it for her father.  It was led in order to support a charge against her father that he had sent his daughter to commit the offence.

On 7 November, shortly after her evidence, an application was made to reopen her sentence under section 188.  There does not seem to have been much argument engaged on that occasion before the court reopened the sentence.  What appears to have happened, from the record book that your Honours have before you, is that counsel appearing for the Crown submitted that she had said that this had been the basis of her sentencing, yet this is what she has now sworn at her father’s trial and submitted that that was “ample evidence to reopening the proceedings”.  So it was presented almost as though a triable issue would be sufficient to reopen the proceedings.

Counsel who then appeared for her did not make substantial submissions.  The court ordered that the proceedings be reopened at that point.  There was no analysis of what the court had to be satisfied of or any other matter.  In February, the reopening proceedings having been adjourned, come on for hearing and the court sentences her again, and this time to four months imprisonment.  So that was the sequence of events.  Sentence at first instance, reduced on appeal, evidence of the trial, immediate application to reopen, three months ‑ ‑ ‑

GAUDRON J:   An order was then made for the reopening?

MR SOFRONOFF:   An order was made in November for the reopening on the day shortly after her evidence.

GAUDRON J:   Was an order taken out to that effect?

MR SOFRONOFF:   It was, yes.  It is in the application book at – I will give your Honours the page but, yes, there was an order taken out.

KIRBY J:   No point was raised concerning the Judiciary Act before the Court of Appeal on the second occasion?

MR SOFRONOFF:   No.

KIRBY J:   Apart from trying to find out how it got into the power of the Court of Appeal, why would we give you the opportunity to raise that point now, which was not advanced before the Court of Appeal?

MR SOFRONOFF:   For two reasons, your Honour.  The first is that it is a pure question of law.  It does not require further examination of facts, so there is no prejudice to the Crown in it being raised now.  Secondly, if the point is a good one, the applicant should not have been resentenced.

KIRBY J:   There is prejudice to us because we do not have the benefit of the consideration of the matter by the Court of Appeal.  Had you raised it there, it might have saved the process that took place.

MR SOFRONOFF:   That is true, your Honour, and that is a factor but as against that factor there is this factor, that if the point is a good one, my client should never have been resentenced to four months imprisonment, and therefore, one has on the one hand a prejudice to the Court that your Honour has mentioned, but on the other hand her liberty.  Could I deal with section ‑ ‑ ‑

KIRBY J:   Is she on bail?  What has happened to her liberty?

MR SOFRONOFF:   Justice Callinan stayed the execution of a warrant pending this application.

KIRBY J:   Yes, I remember reading that.

MR SOFRONOFF:   Could I deal with the section 79 point, your Honours.

GUMMOW J:   Well, is it section 79?

MR SOFRONOFF:   I mean of the Judiciary Act, your Honour..

GUMMOW J:   I realise that.  Section 68 has no application?

MR SOFRONOFF:   In our submission, no, your Honours, because it deals with ‑ ‑ ‑

GUMMOW J:   It does not seem to.

MR SOFRONOFF:   No, it deals with matters short of sentencing, conviction and so on.

GAUDRON J:   There are detailed provisions in the Commonwealth Crimes Act, are there not, with respect to sentencing?

MR SOFRONOFF:   There are, your Honour.  In Part 1B of the Commonwealth Crimes Act, there are detailed provisions relating to sentencing for Commonwealth offences which in some respects pick up State legislation.  For example, there is a provision in – I think it is section 16 – that picks up State Acts dealing with the commencement of sentences, and there are others with respect to the release of offenders and so on.

The Queensland Penalties and Sentences Act has within it some provisions that are purely procedural.  For example, the most evident one of those is section 15A which provides for permission to use an audio link on sentencing.  But if one comes to section 188, in our submission, one is dealing with a provision of an entirely different nature and one that cannot fairly be described as procedural.  If your Honours look at section 188(1) you will see there are three possible occasions upon which a sentence can be ‑ ‑ ‑

GUMMOW J:   Wait a minute.  Why would it matter whether or not it was procedural?

MR SOFRONOFF:   Because section 79 ‑ ‑ ‑

GUMMOW J:   No, section 79 picks up more than procedural law.  You will not get far with that submission.  The real question is – it says, “including the laws relating to procedure”.  It has clearly been decided often.  There are two questions, though, it seems to me.  Is Part 1B of the Crimes Act a law of the Commonwealth which otherwise provides by dealing with the subject exhaustively and, secondly, in any event, if this State Act were to be picked up, would it in the terms of 79 not be picked up, because it might conflict with the Constitution? Section 79 does not pick up a State law if the result would be any conflict with the Constitution. So then you have to ask yourself the question, “If the Federal Parliament were to enact the for Federal offences a law like this State Act, would it be valid?”

KIRBY J:   I see a day or so in these points.

MR SOFRONOFF:   Well, your Honour, in our submission, they are points worthy of this Court’s attention because the provision ‑ ‑ ‑

KIRBY J:   These are not unusual provisions in State law now, are they?  I think they certainly exist in other States.

MR SOFRONOFF:   A provision like 188, your Honour?

KIRBY J:   Yes.

MR SOFRONOFF:   Provisions like 188(1)(a) and (b) ‑ ‑ ‑

KIRBY J:   If you do not stick to your story you can be brought back to be resentenced.

MR SOFRONOFF:   No, your Honour, only in Tasmania – Tasmania and Queensland have that.

KIRBY J:   I thought there was a provision in New South Wales.  Anyway, we can get into the detail of that if you are given special leave on the point.

GUMMOW J:   I mean, you have to ask yourself would the Federal Parliament empower a court exercising federal jurisdiction, on its own initiative, to go through this exercise?  I am looking at ‑ ‑ ‑

MR SOFRONOFF:   Does your Honour mean whether that would be a proper conferral of judicial power?

GUMMOW J:   Yes.

MR SOFRONOFF:   Well, that is, in our submission, a question which alone would justify special leave.

GUMMOW J:   The court in this case was not moving of its own initiative, that is true.

MR SOFRONOFF:   No.  Your Honours will see, for example, the importance of the section and therefore the worthiness of the Court taking the matter on appeal from, for example, section 188(2), which provides for a sword of Damocles to hang over the head of an offender who has received a lighter sentence because of a promise to co‑operate with the authorities.

GAUDRON J:   There is a very similar provision to that in the Commonwealth Crimes Act, which is why you might think that the Commonwealth Crimes Act is exhaustive.

MR SOFRONOFF:   Your Honour, in our submission, the Commonwealth Crimes Act is exhaustive for this reason.  It contains within it and other Commonwealth statutes contain within them, for example, legislative authority for the Commonwealth Director of Prosecutions to appeal against decisions, whether conviction or sentence.  This Court has held in Byrnes, for example, and reaffirmed in Bond that the right of appeal is a substantive right which would require express words to justify a conclusion that a particular Commonwealth officer enjoys such a right under a State statute, and this Court used the expression – I think it was in the reasons of the majority in Byrnes that your Honour Justice Gaudron was a part of – to the effect that that was because the liberty which a person enjoys from being vexed again on sentence is a matter which is substantive.

The Commonwealth statute, the Crimes Act, contains within it a comprehensive treatment of the respects in which offenders against Commonwealth statutes can be sentenced, including where necessary picking up State Acts.  In our submission, it is a fair reading, therefore, of the Commonwealth Crimes Act Part 1B that it is intended to be a complete an exhaustive treatment of the area with the consequence that to suggest that section 188 also applies is wrong because that would raise a section 109 inconsistency.

GUMMOW J:   No, it would not.  That is another - it simply would not be picked up by section 79 because there was the Commonwealth or otherwise providing.  Section 109 has nothing to do with it.  State law cannot speak to these federal offences unless a federal law makes it apply.  That is the question.

KIRBY J:   It comes up earlier than inconsistency.

GUMMOW J:   Yes.  There is never any valid operation of the State law to be displaced by 109 unless there is a federal law that picks it up.

MR SOFRONOFF:   Your Honour, in our submission, all of those matters, including one that I have not developed orally - could I mention it very briefly.  It is this.  The Court of Appeal determined that because of what the applicant had said at the trial of her father, reopening was justified and indeed resentencing was justified.  In this jurisdiction, as in other Australian jurisdictions, persons are sentenced on the basis of facts proved beyond a reasonable doubt.  The Court of Appeal did not advert, in its reasons on the reopening or the resentencing, to the question of standard of proof, the degree of satisfaction or how it could be satisfied merely on a transcript that what she had said at the trial of her father was true, justifying a resentence.  That too, in our submission, is a ground justifying special leave as well as the other matters that I referred to your Honours.

KIRBY J:   Were those points put to the Court of Appeal during argument?

MR SOFRONOFF:   I did not use the words “reasonable doubt”, your Honour.  What I put to their Honours was that they had to be satisfied, given the circumstances in which she was speaking at the trial of her father and the motives she might have to lie, that what she said was true.  Their Honours did not advert to any of the circumstances.  They do not appear in their Honours’ reasons.  They simply proceeded on the footing that what she had said ‑ they only had in transcript ‑ was an admission against interest.  How it could be an admission against interest, your Honours, we submit is not readily apparent unless it was shown that she was aware of section 188 and the peril she stood in.  Those are our submissions, your Honours.

GUMMOW J:   Wait a minute, Mr Sofronoff.  Your draft notice of appeal, where is that to be found?

MR SOFRONOFF:   That is meant to be the second ground, your Honour.  It might have been put too generally.

GUMMOW J:   No, where is the document?  Where do we find it?

MR SOFRONOFF:   Where is it?  It is at page 107, your Honour.

KIRBY J:   And I assume it contains no reference to the Judiciary Act points.

MR SOFRONOFF:   No, it does not, your Honour.

KIRBY J:   Do you have your draft with those points?

MR SOFRONOFF:   With the Judiciary Act points, your Honour?

KIRBY J:   Yes.

MR SOFRONOFF:   Not yet, your Honour.

KIRBY J:   Are you asking for special leave on those points?

MR SOFRONOFF:   I am, your Honour.

KIRBY J:   There may be a number of them there, subpoints of the same issue.  So we would need to have your draft grounds.  You have had a whole day to do this.

MR SOFRONOFF:   We have had time to do it, your Honour.  I am not sure it would be right to say we had the whole day.

KIRBY J:   Yes, very well.  Thank you.

GAUDRON J:   Thank you, Mr Sofronoff.  Could I ask you one question, I am sorry, Mr Sofronoff.  Were special leave to be granted, you would undertake that a notice of appeal would deal with the Judiciary Act point, would you?

MR SOFRONOFF:   Yes.

GAUDRON J:   And you would undertake to give appropriate notices to Attorneys‑General as to that aspect that Justice Gummow raised with you ‑ ‑ ‑

GUMMOW J:   If you think it does arise.

MR SOFRONOFF:   Yes, your Honour.

KIRBY J:   And what about the perjury?  Where stands the perjury proceedings at the moment?

MR SOFRONOFF:   Your Honour, my learned friend Mr Griffin could probably answer that better.  All that has happened at the moment is that the summons was issued on 9 October this year and it is to be mentioned on 22 November.

KIRBY J:   And the father’s trial concluded in a conviction and a custodial sentence, I think, is that correct?

MR SOFRONOFF:   Yes, your Honour, except that he appealed successfully and his conviction was quashed, and we are told there is to be a retrial.

KIRBY J:   I see.  Thank you.

GAUDRON J:   Yes, Mr Griffin.

MR GRIFFIN:   May it please the Court.  If I could deal with the issue of the Judiciary Act first.  Your Honours, we submit that section 68(1) provides for picking up of the State legislation and annexing it, as it were, to the disposition of several matters which also include appeals and include trials, pursuant to section 68(1)(c) and (d).

GAUDRON J:   I do not see any words in there.

MR GRIFFIN:   Your Honours, the argument is this ‑ ‑ ‑

GAUDRON J:   This is not an appeal in any sense of the word that this provision is concerned with, is it?

MR GRIFFIN:   The provision, that is subsection (1) ‑ ‑ ‑

GAUDRON J:   No, section 188.  It is not expressed to be an appeal, and it is not an appeal, is it?

MR GRIFFIN:   No, it is not an appeal but it is in these circumstances , an adjunct‑ ‑ ‑

GAUDRON J:   It is a power to vary a sentence.

MR GRIFFIN:   Yes.  Your Honour, we submit that it is procedural, but it is picked up by section 68(1) ‑ ‑ ‑

GAUDRON J:   Let us look at this a little bit in terms of practicalities.  Is it not the case that under section 188, if it is picked up, you could have a sentence appeal all the way to this Court and, assuming the appeal was dismissed in this Court, the original sentencing judge could go round and alter the sentence on the basis that it was on a clearly incorrect basis.

MR GRIFFIN:   Your Honour, that would be limited of course by the discretion which is reposed in section 188 ‑ ‑ ‑

GUMMOW J:   No.

GAUDRON J:   Well, that does not seem to be much of a limitation, does it?

KIRBY J:   The question relates to the power and jurisdiction to do this, whether that is first of all within section 68 and if it otherwise would be, whether that is something that can be done in the exercise of federal jurisdiction.  These seem to be ‑ it is not you.  These points were not raised below but they appear to be not insignificant points.

MR GRIFFIN:   We have heard what has fallen from your Honours this morning and accept that there are significant issues to be raised.  The answer we make is simply that section 68(1) is procedural and it relates to that aspect of section 188 that enlarges the sentencing process, which is itself procedural and therefore makes it ‑ ‑ ‑

GUMMOW J:   Wait a minute.  Procedures and processes exist to facilitate the attainment of a terminus.  What is the terminus here?  What is the legal terminus?

MR GRIFFIN:   The ultimate sentence of the offender.

GUMMOW J:   Ultimate.  That is your problem.

MR GRIFFIN:   Your Honour, the answer to that must be, on our submission, that it is ‑ ‑ ‑

GUMMOW J:   It is a new procedure in aid of a new process; that is the problem.

MR GRIFFIN:   Our submission is that it is merely an extension of the original sentencing process which was commenced ‑ ‑ ‑

GUMMOW J:   It is a very strange state of affairs if when section 73 of the Constitution is operated and this Court has ruled on a question of this sort ‑ it is the ultimate authority in the matter ‑ somehow it starts up again. You say it is all part of what we were engaged in, even though we did not know it. That does not sound right.

MR GRIFFIN:   That is our submission, your Honour.

KIRBY J:   Well, I think we would like to hear more about it.

MR GRIFFIN:   If that is the case, perhaps today is not the day, your Honours.

GAUDRON J:   Did you have anything else to put, Mr Griffin?

MR GRIFFIN:   No, I do not, your Honour.

KIRBY J:   What about the perjury proceeding, Mr Griffin.  What is the status of that?

MR GRIFFIN:   The state of that is that the applicant has been summonsed to appear.  She is to appear for a hearing date, which will be a committal date, and the date for the next court appearance I am told is next Friday, Friday week.

KIRBY J:   Now, you heard Mr Sofronoff raising some points which went to the merits of the matter.  I am not, as it were, reaching any conclusion on this because it may be that they are entirely severable and separate, but it will need some consideration by the Crown as to whether those proceedings go ahead whilst any hearing of an appeal takes place in this Court.

MR GRIFFIN:   Yes, your Honour.

KIRBY J:   It may be that they are separate issues, but they may ‑ ‑ ‑

MR GRIFFIN:   We have always taken the view that they are; the only connection being that perhaps on ultimate sentence if the applicant was sentenced in respect of both, then the sentence for one would necessarily have to be taken into account in relation to any other sentence imposed.

KIRBY J:   Yes.

MR GRIFFIN:   But apart from that, we submit they are utterly separate, assuming of course that it was correct to invoke section 188 in the first place.

KIRBY J:   If you can overcome the Judiciary Act problems, there would still be the issue of the conduct of the Crown in taking a different stance in different proceedings and then there would be a question as to whether the hearing of the second proceeding before the Court of Appeal was conducted in accordance with the normal requirements of the criminal proceedings, including as to burden of proof.  So there are quite a few issues there to be considered before you embark on yet another proceeding involving the perjury allegation.

MR GRIFFIN:   Yes, we understand your Honour’s point.

GAUDRON J:   Yes, thank you, Mr Griffin.

MR GRIFFIN:   Thank you, your Honours.

MR SOFRONOFF:   I have nothing in reply, your Honours.

GAUDRON J:   Now, Mr Sofronoff, first of all, you seek an extension of time?

MR SOFRONOFF:   Yes, your Honour.

GAUDRON J:   Secondly, you seek leave to file an amended draft notice of appeal, or at least you file a notice of appeal that raises the issues that have been agitated today?

MR SOFRONOFF:   I do, your Honour.

GAUDRON J:   Yes.  On the understanding that there will be a notice of appeal raising these issues, there will be an extension of time and a grant of special leave in this matter.

MR SOFRONOFF:   Your Honours, Justice Callinan, as I have said, ordered that execution of the warrant for the arrest of the applicant be stayed pending this application.  Would your Honours be minded to continue that order until the hearing of this matter?

GAUDRON J:   The stay will be extended until the disposition of the appeal.

MR SOFRONOFF:   Thank you, your Honours.

GAUDRON J:   But that being so, we presume you will file your notice of appeal promptly because ‑ ‑ ‑

MR SOFRONOFF:   We shall, your Honour.

GAUDRON J:    ‑ ‑ ‑ theoretically there is nothing really before us until you do.

MR SOFRONOFF:   Your Honour, we will take it that we are expected to proceed promptly and diligently with the appeal.

GAUDRON J:   Thank you.

KIRBY J:   That means days.

MR SOFRONOFF:   I understand that, your Honour.  I was hoping for days.

GAUDRON J:   Thank you.

KIRBY J:   You have already had one.

AT 12.14 PM THE MATTER WAS CONCLUDED