Ahwan v Director of Public Prosecutions

[2006] HCATrans 349

[2006] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2006

B e t w e e n -

JACOB AHWAN

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

GUMMOW ACJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2006, AT 9.50 AM

Copyright in the High Court of Australia

MR A.C. HAESLER, SC:   If it please the Court, I appear with MS P.L. DWYER for the applicant.  (instructed by Northern Australian Aboriginal Justice Agency)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:May it please the Court, I appear with MS S.L. BROWNHILL for the respondent, Director of Public Prosecutions.  (instructed by Director of Public Prosecutions (Northern Territory))

GUMMOW ACJ:   Yes, Mr Haesler.

MR HAESLER:   Your Honours, Mr Solicitor for the respondent says, in effect, that this is an unimportant case on a parochial issue decided and resolved by the majority decision of the local Court of Appeal, an issue of no importance already settled.  In response we say it is important for, despite the applicant’s crime – and it was a very serious crime, indeed – the clear purpose of the legislation was to allow him, and others who have been sentenced or are to be sentenced for the crime of murder, eligibility for parole where previously it was totally unavailable to them with the additional purpose that a 25 year minimum period apply in certain specific and specified offences.  That purpose was not reflected in the majority decision.

Secondly, the decision of the Court of Appeal reflects not just a clear division within the court about the result, but a clear division within the court and the Territory on matters of principle that we say require resolution.  We say there are continuing matters of principle to be resolved.  Not the least of those is that this is a case not where there was a conflict between a penal provision and a beneficial provision, but in fact where both the principles that apply to strict application of penal provisions and also the principles that apply to interpreting beneficial legislation, both called for interpretation in favour of the applicant.

GUMMOW ACJ:   Yes, but in order to get across the threshold you have to persuade us that there is a real prospect that you would succeed in displacing the majority interpretation of section 19(3)(b).  Now, do you read 19(3)(b) which is set out at, amongst other places, page 79 of the application book?

MR HAESLER:   Yes, your Honour.  We gain much support from the interpretations of both Justice Riley and Justice Southwood.

GUMMOW ACJ:   I know, but just how do you read it?  We have to get to the text.

MR HAESLER:   But when one reads it, your Honour:

the act or omission that caused the victim’s death was part of a course of conduct by the prisoner that included conduct –

and the key words in the respondent’s and the majority decision –

either before or after the victim’s death, that would have constituted a sexual offence against the victim.

“Would have constituted a sexual offence” is necessary because in this particular case when the offence was committed in 1985 there was no Sentencing Act in the Northern Territory.  There was no definition of the term “sexual offence”.  That term has now been defined, section 3 of the Sentencing Act, Schedule 3 of the Sentencing Act.  The section does not say, that would have constituted “sexual offending”, the words used by Justice Thomas in her decision.  If it had have used the words “sexual offending” one would presume that a very, very broad interpretation was intended.

There is a key difference between applying a social policy, we say, of taking into account matters where there was some form of sexual offending during the course that led or subsequent to the death, and taking into account a sexual offence.  We have a Code jurisdiction.  “Sexual offence” is clearly and specifically defined.  To use the term “sexual offending” which is read into the Act by Justice Thomas, in particular, would mean that any form of conduct unspecified would lead to the higher non‑parole period.  The legislature by using the term “sexual offence” as the key factor, we say, in this section clearly intended to limit it to matters which were.

GUMMOW ACJ:   What do you say about the statement by the Solicitor at page 89, paragraph 7 of the application book, particularly the last sentence?  It may often be difficult to know, the hypothesis of someone who has been murdered, it may often be difficult to know forensically?

MR HAESLER:   Whether it occurred before or after?

GUMMOW ACJ:   Yes.

MR HAESLER:   It may be difficult to know, and if the Act had have specified a sexual offence in terms of section 140(b), which involves interference with a corpse, then it would not have needed to be determined, but in this case it was possible to know and be determined by Justice Riley as a matter of fact.

GUMMOW ACJ:   We are construing the section?

MR HAESLER:   Yes.  So, while it may be difficult to know or not, it still has to be a sexual offence.  One cannot escape that clear term.

GUMMOW ACJ:   It says, “would have”.  The section says “would have constituted”, not “was”.

MR HAESLER:   Yes, and the “would have” is taken into account and has work to do because of its past operation.  In other words, it did not constitute a sexual offence at the necessary time.  It has work to do in that respect.

GUMMOW ACJ:   You say “would have constituted” means would have if the subsequent sexual offence legislation had been in force?

MR HAESLER:   Yes, if there had have been a definition of “sexual offence” and that was clearly spelt out both by Justice Riley and by Justice Southwood.  So what we say has occurred here – and one cannot say this is the best drafted section – is nevertheless, by looking at it ‑ ‑ ‑

GUMMOW ACJ:   The Solicitor‑General may have had a hand in ‑ ‑ ‑

MR HAESLER:   Well, I am sure he will take that on the chin.  Unfortunately, as it is, legislative drafters have to take it on the chin, and go back and get it right if they have – and this is our key point.  They can go back and get it right if the legislation does not do what the Minister or the Parliament intend it, but the court cannot – and this is clear – add words in, and which we say is essential if the Solicitor’s meaning and the majority’s meaning is to be given effect.

In effect, it is a case where they have read into the Act by reference primarily to the Minister’s second reading speech of the social policy behind the Act without actually going to the clear words of the Act which spell out its purpose.  The mischief which this particular Act was designed to remedy was the failure – the absence in the Territory of any prospect of release for those convicted of murder other than by some form of executive licence.  There was no parole system for murder.

By bringing in the 20 year minimum non‑parole period, they then said in certain specific cases a person will spend five years longer in custody before becoming eligible for parole.  Now, that has to be specific and it has to be interpreted specifically because it means someone spends five years in gaol after they have already served 20 before they are eligible for release.  That point was made forcefully and correctly, we say, by Justice Riley and Justice Southwood.  What occurred, with respect to the majority, was that Acting Justice Martin – to be blunt – started his reasoning from the second reader and went back to the second reader.  He did not analyse, we say, correctly the purpose of the legislation, the purpose of the section and its contents.

Yes, if one took as the mischief to be addressed, the social policy being people who commit heinous crimes should go to gaol for longer or spend longer in gaol, then the legislation should have said that, but when the subject of the section is “sexual offence” not “sexual offending”, when “sexual offence” is defined in the Act and we are dealing with a Code jurisdiction, when it is penal and it also has beneficial application, we say Justice Thomas mixed both of those concepts up.  The benefit she seemed to say was the benefit in keeping people in gaol for five years or longer.  The benefit had to be interpreted with respect to the liberty of the applicant in this case.  The penal nature of it is clear and was recognised by all the judges who dealt with the matter apart from Justice Thomas.  It had to be interpreted strictly.

There may be some social policy behind keeping people who commit crimes, and as the Acting Chief Justice noted, well, sometimes you may not be able to tell whether it occurred before or after death, but if it falls down to that sort of division, then the legislation should and must, we say, be interpreted in favour of the person who would otherwise be deprived of their liberty, and that is not a difficult task to do once the facts are ascertained, and that we say should have been crucial to the interpretation of this legislation.  It has work to do, it could have work to do.  This legislation, we say, is dynamic in the sense that it can be easily amended by changing Schedule 3 to the Sentencing Act.

That schedule allows for other sexual offences to be incorporated or perhaps taken away.  Read as it was at the time it did not include interference with a death body.  It could have, it could have been fixed quite simply.  It should not have been fixed, we say, by adding words in.  They went too far, and that is essentially the important point we make, important because of the consequences for the present applicant, but also important because the same words used in relation to section 19 also apply to every other murder sentence which will be imposed or is being imposed in the Territory so it has continuing operation, and therefore is a matter of quite considerable importance.

The second matter of considerable importance is, of course, the clear division in approach between the judges of the Territory court which we say, although resolved in this case by a majority of two to one so far as the specific decision, the differences of approach between the judges of the quite small bench requires resolution.  Those are my submissions, your Honour.

GUMMOW ACJ:   Thank you, Mr Haesler.  Yes, Mr Solicitor.

MR PAULING:   Thank you, your Honours.  Your Honours, it would be convenient for this part of my argument if you had before you the Sentencing (Crime of Murder) and Parole Reform Act which is behind tab 2 in the respondent’s bundle of materials.

Now, the argument put against us is a construction point on a number of levels.  One is that the words “would have” have been interpreted by adding words.  My learned friend would add the words “would have had there been a definition of ‘sexual offence’”.  He adds those into the section to give it work but there is something that I want to develop with your Honours.  Would you firstly turn to section 19 which is at page 9 of the print – sorry, go over to page 10.  I am going to 19(3)(b) which is the provision in question.  Your Honours will see that that section is identical to section 53A(3)(b) which is at page 3 of the print.  The words are precisely the same.  Section 19 ‑ ‑ ‑

GUMMOW ACJ:   Just a moment.

MR PAULING:   Sorry, it is added by section 7.  It inserts a new section at page 2, 53A, and at page 3 is subsection (3) of that and subsection (b) which is in identical terms to that provision in section 19.

GUMMOW ACJ:   Part 5 is a transitional provision?

MR PAULING:   Yes, it is.  So that Part 5 which is section 19 only applies to persons who are serving a sentence of life imprisonment at the time the Act commenced.  Section 53A applies to all persons who are sentenced to life imprisonment after the Act commenced.  Now, on the construction that Justice Riley adopted, your Honours, the words “would have” in section 19 have a single application.  If your Honours go to the appeal book at page 32, the relevant paragraph is [45], his Honour there says:

In my view, as expressed in par 14 above, the words “would have” are employed simply to relate the conduct of the respondent at the time of offending to the definition of “sexual offence” contained in the legislation.

So that is what Mr Haesler put against us that it is to be read as though “would have” means would have if there had been a definition of “sexual offence”.  Now, if that interpretation – and as his Honour put it – it was simply that operation, so it is a singular function.  If that is correct for 19(3)(b) then what do the words “would have” mean in section 53A?  They cannot relate to a new definition of “sexual offence” or apply it to past events because it is operating prospectively, and “would have”, in our respectful submission, in 53A must mean that which the majority found in the Court of Criminal Appeal, and that is “would have” if the victim was alive at the time of the conduct, have constituted a sexual offence.

Our point is, of course, that if our interpretation of how the words function in 53A is correct, then why do they not serve the same function in 19(3)(b) as well as the function that Justice Riley identified.  We say that a proper purposive approach to the construction of the words “would have” in the particular matter does not involve reading in words.  It involves construing the section so that it operates in its proper context.  So that as read as ordinary English one would read that and say, all right, if it would have been a sexual offence, how could it be a sexual offence?  Well, the person has to be alive, that is a necessary ingredient, and I am putting to one side the two absurd sections about publishing pornographic images and so on.

CALLINAN J:   Mr Solicitor, are there any definitions of sexual offences that may be committed after death?

MR PAULING:   The Director at first instance conceded that there were two sections that could operate, and neither of them necessarily involve physical contact or proximity, and neither of them could ‑ ‑ ‑

CALLINAN J:   Where do I find those?

MR PAULING:   The discussion of the sections – there is a respondent’s further bundle of materials, your Honour, and under tab 1 you will find “Child abuse material and indecent articles” and the two relevant sections identified were 125B which is at page 74 of the print, “Possession of child abuse material”:

(1)      A person who possesses, distributes, produces, sells or offers or advertises for distribution or sale child abuse material is guilty of a crime and is liable –

and so on, and “child abuse material” is defined earlier at page 71 of the print.

GUMMOW ACJ:   The child may be dead.  That is the point, is it?

MR PAULING:   That is the point, but as Justice Thomas correctly says, in our respectful submission, if the aim of the legislature was only to get to those two examples, it has absurdly missed the point.

CALLINAN J:   What is the other one?

MR PAULING:   It is the next section along, your Honour.  It is 125C which is “Publishing indecent articles”.

CALLINAN J:   It seems rather unlikely that the definition or the section is really only aimed at those two offences.

MR PAULING:   Absolutely, that is the point we make, your Honour, and we say that by reading the section in the way that the majority did it is not unreasonable, it accords with the plain intention of a parliament, we say.

CALLINAN J:   And also there is the problem, is there not, that the reference in the section with which we are concerned refers to a sexual offence against the victim, and that is in relation to a murder charge, and the victim is always the victim of the accused whereas the victim in the child abuse cases or obscene material cases, the victim may be the victim of somebody else?

MR PAULING:   That is correct.

CALLINAN J:   So it may not even, despite the concession by the Director, in fact it might not encompass those cases – the section might not in fact.  We do not have to go into that or decide that, but that again argues against the interpretation contended for ‑ ‑ ‑

MR PAULING:   It does, and the other point is that the Sentencing Act when it was amended brought in a provision that said that if you commit one of these sexual offences then you must go to gaol.  There is no question about it, and it is easy to see why publishing child abuse material might be one that the Parliament would want people to know that they are going to gaol for certainly.  There is no suspension or anything else, and so that would explain why it was included in the schedule, but it would not explain why you might look to that as giving some work to do to the words “would have” or “if the person was alive or dead”.  Your Honours, we say that those sections ought to be put aside because they lead to such an absurd result that it could not support the meaning of it.

Can I turn to the questions that are raised against us in the application?  There are three questions put up which are said to be the special leave points.  They occur, your Honours, at page 78.  The first question is:

What if any, are the limits of the purposive approach to statutory interpretation?

In our respectful submission ‑ ‑ ‑

GUMMOW ACJ:   We are not going to be writing an essay about that.

MR PAULING:   No, but it has already been settled, we would say, your Honour, by Newcastle City Council v GIO and Amcor v CFMEU and the limit is that the construction must be neither unreasonable nor unnatural, and we say the construction for which we contend is both reasonable and natural.

GUMMOW ACJ:   You say the majority of the Court of Criminal Appeal applied orthodox principles of statutory construction to produce what is a correct result?

MR PAULING:   Yes, precisely.  The second question, your Honour, talks about:

To what extent, if any, can a court fill gaps in legislation –

well, that is really the same question, dressed up differently, but with the same result.  They applied the correct test, and thirdly, your Honour, the last question:

To what extent, if any, can a second reading speech determine the interpretation of a section?

This Court decided that recently in a matter in which your Honour Justice Gummow participated in Nominal Defendant v GLG Australia.

CALLINAN J:   But you could get to the result without reference to the second reading speech?

GUMMOW ACJ:   Yes, I think that is the real point.

MR PAULING:   Of course you can.  As a pure matter of construction, without adding words, you just say that is what the section means, it reads that way.  You do not have to read words into the section to make it read that way, and it produces a reasonable result, and there is nothing much more I can say on that point.  Thank you, your Honours.

GUMMOW ACJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Haesler.

MR HAESLER:   Your Honour, the point I made in relation to the legislation being dynamic is that it has a scope to be expanded by the inclusion of material into Schedule 3.  Mention is made in all of the judgments of 140(b) of the Code which relates to offences against a corpse

and how easy it would have been to do exactly what the Minister wanted to read those – to put that section into the schedule.

To get where Mr Solicitor wants this Court to go and where the majority arrived still requires reading after “that would have constituted a sexual offence against the victim” “had she been alive at the time”.  It is those words, we say, that are necessary if one is to treat the subject of the section as a sexual offence and we say you must do that because of the rules of construction with regard to penal and beneficial legislation.  They could have added the words of subsection (e) where the victim is killed and their body subject to sexual degradation post mortem.  Again, they did not do so.

Because it needs to be strictly construed and because there is a definition of “sexual offence” the ordinary construction put forward by Mr Solicitor does not account for that clear need to define “sexual offence”, and that is clearly the point made by Justices Riley and Southwood.  Simply put, we say that that point is made probably more eloquently and clearly by Justices Southwood and Riley ‑ ‑ ‑

GUMMOW ACJ:   The majority of the Court of Criminal Appeal applied orthodox methods of statutory construction to produce a correct result.  Accordingly there are no prospects of success on any special leave application.  Special leave is refused.

AT 10.15 AM THE MATTER WAS CONCLUDED