Andalong v O'Neill

[2018] HCATrans 70

[2018] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin   No D8 of 2017

B e t w e e n -

SAMUEL ANDALONG

Applicant

and

WAYNE O’NEILL

Respondent

Application for special leave to appeal

BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 20 APRIL 2018, AT 9.53 AM

Copyright in the High Court of Australia

MR A WYVILL, SC:   If it pleases the Court, I appear with my learned friend, MR M.R. AUST, for the applicant.  (instructed by North Australian Aboriginal Legal Aid Service Inc)

MR M.W. NATHAN, SC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Office of the Director of Public Prosecutions)

BELL J:   Yes, Mr Wyvill.

MR WYVILL:   Thank you, your Honours.  Let me go directly to what we contend is the first special leave question in this matter.  The foundation of the Full Court’s decision and the applicant’s challenge to its correctness is the Full Court’s adoption of a construction of “offence” in accordance with the first sense described by the plurality in the decision of this Court in Barlow 188 CLR at 9.

To explain our argument in this respect, I propose first to take your Honours to the relevant passages in Barlow and at the same time note the relevant provisions from the Queensland Code which are in play there, then move directly to the Territory Code, the relevant provisions, and finally with those matters in mind, to examine the Full Court’s decision to demonstrate the errors we say the Full Court has made.

Your Honours, may I therefore go first to the decision in Barlow 188 CLR 9 and we are addressing the first entire paragraph on page 9. Your Honours, before I take your Honours specifically to that, may I describe its structure. It has three sentences. Its first sentence describes the two different general meanings of “offence”. I am going to refer to those as meaning A and meaning B. The second sentence subdivides meaning 1 and meaning 2. The second sentence subdivides meaning 1 into two further subdivisions, meanings 1A and 1B and the third sentences subdivides meaning 2 into meaning 2A and 2B.

Let me identify those different meanings in that paragraph.  If your Honours go to page 9 to line 3 you will see what I have described as meaning 1 starting with the words “what the law proscribes under penalty”.  Your Honours will then see meaning 2 starting with the words, in the same line, “the facts the existence of which render an actual offender liable to punishment.”  Their Honours then refer back to meaning 1 and then identify meaning 1A in line 5 starting at the word “that”:

that concatenation of elements which constitute a particular offence (as when it is said that the Code defines the offence of murder) –

and the 1B definition starts with the words “the element of conduct (an act or omission)” - just pausing there, “act or omission” is taken directly from section 2 of the Criminal Code (Qld) which attracts criminal liability if it be accompanied by the proscribed circumstances. If we can then move to the end of that sentence, we see the third sentence dealing with meaning 2 and meaning 2A is found about the ninth‑last line:

to denote the facts the existence of which renders an actual offender liable to punishment, the term denotes either the concatenation of facts which create such a liability –

and then 2B is about the fifth‑last line:

the conduct of the offender (an act or omission) –

Again we see the same words taken from section 2, the definition of “offence” in the Queensland Code. Your Honours, we have there two clear distinctions between “offence” in the general sense and “offence” in the specific sense in the context of a particular offender and a particular offence. Within those two overall distinctions, we have subdivisions. One relates to the entire elements of the offence, which is the A meanings, and B are the conduct elements, those parts of the overall elements which relate to conduct.

If I can then invite your Honours to read the next paragraph. Your Honours will see from that their Honours have adopted meaning 2B as the meaning of “offence” as defined by section 2 of the Code and have confirmed that that meaning applies, for the provisions that are relevant to that matter, in sections 7 and 8 of the Code.

If your Honours would turn then to page 17 of that decision, your Honours will see section 2 of the Code. Can I invite your Honours at the same time to turn to the application book at page 67. His Honour Justice McHugh at page 17 in the decision of Barlow sets out at about point 3 on the page the definition from section 2 of “offence”. I just invite your Honours to note that.

Then at page 67 of the application book your Honours will see the parallel provision in the Northern Territory Code and I would just invite your Honours to read section 2 of the Code, noting, I think most importantly, the definition of “event”, just above section 2 on page 67 of the application book, which is not found in the Queensland Code.

Your Honours, there are three points we draw about these two provisions together. One can see that the conduct aspect of the definition in section 2 of the Queensland Code has been expanded beyond “act or omission” to include “event”. It has also been expanded to include a reference to the relevant mental element. That must mean that when one moves from Queensland to the Northern Territory the B definitions will have to be recharacterised. They will be broader, because they will go beyond “act or omission” and include “event” and the mental element. That is the first point.

The second point we make is that whilst there is that clear difference between the Queensland Code and the Territory Code in the definition of “offence”, there is no basis for concluding that the meanings I have described as meanings 1A or 1B come into play at all. It is still clear from section 2 that we are talking about an actual offender and an actual offence, not the offence‑creating provision.

If I can take your Honours then directly to the provisions in play on this application which start at section 17, and that is found at page 71 of the application book, let me make these short points about these sections.  Your Honours will see that section 18 is the central provision of four.  Section 17 is a definition provision for the purposes of section 18, particularly 18(b).  Sections 19 and 20 are both provisions which condition the application of section 18.  So, section 18 is the central provision.

As noted in Barlow with respect to sections 7 and 8 of the Queensland Code, given this interconnectedness, they ought to be approached prima facie on the basis the defence has the same meaning throughout those four provisions.

The third point we make is this. The fact that the meaning of “offence” for sections 17 and 20 is found in section 2 is clear from two things. Firstly, section 2 itself which, as your Honours may recall, starts with the words “For the purposes of the Part”, and “this Part” includes sections 17 to 20. The second reason why it is clear that that definition is drawn on for this provision is the repeated reference to a particular offender, a particular offence or terms that come from that context. If we go to section 18:

it is a defence to a charge of any offence –

So we are talking here not about something – about a clearly category 2 meaning:

the accused person –

Category 2 meaning:

found guilty or acquitted –

Clearly a process of assessing a particular charge.  More obviously from 18(c):

found guilty upon the trial of the offence –

Paragraph (d):

upon the trial –

Again, a further reference:

found guilty of the offence charged.

Section 19 even clearer; we see the words:

Where the act or omission –

That must come from section 2:

is such that it causes death . . . the accused person may be found guilty of the offence -

So again, the language is entirely consistent with the second type of meaning from Barlow, not the first.

BELL J:   Mr Wyvill, even if one accepts that a possible other interpretation of the provision is as you urge this is a bespoke provision under the Northern Territory Code, what would - an issue must arise about the usefulness of this Court engaging in a further exercise of construction of a provision which the Court of Appeal has determined.

MR WYVILL:   Absolutely, your Honour.  Of course it does and, subject to your Honour’s view, would your Honour allow me to deal with that when I come to deal with the reasons as to why special leave ‑ ‑ ‑

BELL J:   All right.  Perhaps, Mr Wyvill, can I take you back to this.  The Court of Appeal favoured the view that sections 17 and 18 used the word “offence” in the sense of what the law prescribes under penalty.  Is that right?

MR WYVILL:   That is right, your Honour, yes, the first category of ‑ ‑ ‑

BELL J:   That is the construction that you challenge and you challenge it partly because of the definition of “offence” in section 2 ‑ ‑ ‑

MR WYVILL:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ which you contend concentrates on the mental and physical elements, that is the conduct of the accused as distinct from the elements of the offence.

MR WYVILL:   Bearing in mind the ambiguity in elements of offence, we are talking here about actual offending and an actual offender.

BELL J:   Yes.

MR WYVILL:   It is the difference between what a law lecturer would say to a law student and what a judge would say to a jury.  They are two completely different contexts but sometimes they get blurred, which is exactly what the Full Court did here.

BELL J:   I understand your argument I think, but when one looks at section 2 it states the circumstances in which an offence is committed and that directs attention to:

a person who possesses any mental element the may be prescribed -

and who does or omits to do any act or a combination of the two, and then it goes to the circumstances in which the act, omission or event or each of them, is authorised or justified.  Why would one take from that that the Court of Appeal was wrong to consider in 17 and 18 that one is looking at “offence” in that context in the sense of what the law proscribes under penalty because one is looking at the mental and physical elements of the offence in the circumstances in which those mental and physical elements occur and one cannot do that without regard to the elements that attract liability, surely?

MR WYVILL:   Absolutely, your Honour.  Of course one has to look at the offence‑creating provision to understand what elements have to be proved to establish an offence. 

BELL J:   Yes. 

MR WYVILL: As your Honour rightly points out there are two parts to that definition of section 2. One might be described as the conduct part and one might be described, for want of a better word, as the context, the legal context. Now, your Honour, that is a contest between the meetings of 2A and 2B referred to in Barlow and that is always in the context of the actual offence. 

So to take an example here, the question the Full Court had to ask was what did Mr Andalong do which meant that he committed an offence.  They did not – and that can require an examination of whether the vehicle was registered, whether a compensation contribution had been paid, whether it was driving on a public road, whether the road had been – well was, in fact, a public road.  All of those matters are clearly elements that go to describing Mr Andalong’s conduct and the other matters which meant that a particular offence was committed.  What the Full Court ‑ ‑ ‑

BELL J:   But it directed attention to the circumstances, Mr Wyvill, which is another way of saying to the elements of liability of each of the offences with which Mr Andalong was charged.

MR WYVILL:   Absolutely, your Honour.  There is no dispute between us - with your Honour, in that respect.  The difficulty here is that the Full Court, having erroneously adopted the first meaning in Barlow which is the wrong meaning, did not do that task.  The task they did was by comparing the objects of the two offence‑creating provisions, without directing any attention to the actual conduct of Mr Andalong or the other – or any of the other specific elements which meant that Mr Andalong committed these two offences on that occasion.

BELL J:   Did not the court look to what the prosecution was required under each charge to prove? 

MR WYVILL:   No, your Honour, it did not.  Can I – I am just wondering whether ‑ ‑ ‑

BELL J:   Perhaps if you take us to what ‑ ‑ ‑ 

MR WYVILL:   Having opened that background let me move straight to the decision and if I can indicate to your Honours where we say the errors were made.  It would be helpful for your Honours to have a copy of Barlow available because we can see exactly where their Honours have drawn their decision.  Can I take your Honours first to page 42 of the application book and just invite your Honours to read paragraph [36].  Paragraph [36] characterises exactly in the relevant respect, what the applicant’s submission was below. 

Your Honours will note from that paragraph that the submission is a 2B submission, that we are looking at the actual elements of the particular offence that Mr Andalong committed and focusing it only on the conduct elements.  That was the argument that was put.  Their Honours dealt with it ‑ ‑ ‑

GAGELER J:   Conduct plus mental element, as I take it.  What he did plus ‑ ‑ ‑

MR WYVILL: It must be – yes, your Honour, because that must take into account the different drafting of section 2 in the Northern Territory Code. Yes, your Honours, so if we go to paragraph [38], you will see that their Honours clearly take the first meaning of that. They then articulate the argument of the respondent at paragraph [39], line 4. I just invite your Honours to read that:

As counsel for the respondent contended, if the phase “conduct therein impugned” was limited in its scope to bare acts or omissions it would be meaningless.  The phrase only assumes meaning if it comprehends the ingredients giving rise to the contravention of the offence provision, because it is by the combination of those ingredients that the conduct is impugned.  That contention should be accepted.

What their Honours did was this.  They had an argument from us contending a 2A construction – sorry, contending a 2B construction, they had an argument from the respondent saying that it should be 2A construction and they resolved it by reference to category 1 meanings.  So they went completely out of the context in which they ought to have resolved it and resolved it in the generality.  The impact of that error can be seen most clearly from paragraph [54] on page 49. 

Your Honours will see that whilst the court acknowledges the two offences exhibit common features, the points which they rely upon to say that the definition in – that they were not, the conduct impugned was not substantially the same, relate to the objects and purposes of the provisions themselves.  There is no reference whatsoever to what Mr Andalong did or any of the particular elements which led to Mr Andalong being found guilty of those offences.  They did not fulfil the statutory function in any respect. 

Now, given the time, if I can move directly to the special leave question – to whether or not leave should be granted – your Honours, sections 17 to 20 are important provisions of general application in the criminal law throughout the Territory.  If we are correct, the decision below will distort the application and the development of that important element of criminal law in the Territory.  Secondly, this decision is inconsistent with all previous Territory decisions, if our construction is correct.  That can be seen, particularly from page 39 ‑ ‑ ‑

BELL J:   Mr Wyvill, I think the Full Court observed, in relation to the decision in Marinov, that the result may not accord with the statement of the

principle that their Honours articulated but, nonetheless, the principles stated in Marinov were not inconsistent. 

MR WYVILL:   That is right, your Honour.

BELL J:   In any event, Mr Wyvill, I see the time. 

MR WYVILL:   Yes, your Honours. 

BELL J:   I think we have the point.

MR WYVILL:   Thank you, your Honours. 

BELL J:   Thank you, Mr Nathan, we do not need to hear from you. 

In our opinion, the decision of the Court of Appeal of the Supreme Court of the Northern Territory is not attended by sufficient doubt to warrant the grant of special leave.  Accordingly, special leave is refused.

The Court will now adjourn to reconstitute.

AT 10.15 AM THE MATTER WAS CONCLUDED