Attorney-General for the Northern Territory v Emmerson and Anor

[2013] HCATrans 244

[2013] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2013

B e t w e e n -

ATTORNEY‑GENERAL FOR THE NORTHERN TERRITORY

First Applicant

THE NORTHERN TERRITORY OF AUSTRALIA

Second Applicant

and

REGINALD WILLIAM EMMERSON

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

Application for special leave to appeal

CRENNAN J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 OCTOBER 2013, AT 1.28 PM

Copyright in the High Court of Australia

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear with MR R.H. BRUXNER for the first and second applicant in this matter.  (instructed by Solicitor for the Northern Territory)

MR A. WYVILL, SC:   May it please the Court, I appear for the first respondent.  (instructed by Ward Keller Lawyers)

CRENNAN J:   Yes, and we have noted a submitting appearance for the second respondent.

MR GRANT:   Yes.

CRENNAN J:   Now, it might be useful, I think, if we hear from the respondent first.

MR GRANT:   May it please the Court.

CRENNAN J:   There is one query I have, which is the respondent has raised the question of there being a condition on any grant of special leave, namely that the applicant would pay the costs of the appeal in this Court in any event, which would be fairly standard in these kinds of contexts.  What do you say about that?

MR GRANT:   Just a couple of points in relation to that, your Honours.  We provided to the Registry yesterday, your Honours, a consent order dated 13 May 2013 made by the Court of Appeal in the matter.  Your Honours will see from paragraph 2 of that order that the appellant was restrained from dealing with any of the property the subject of these proceedings until such time as the Court had determined the application for special leave, and if leave is granted, anything further.  But paragraph 3 provided for the release to the trust account of the appellant’s solicitors the sum of $70,050 in cash.

Your Honours, that money is the amount that is referred to in the applicant’s summary of argument at paragraph 11.  That is on page 161 of the application book.  That is the specie of property subject to restraint which was not the subject of an understanding, as there was with the other property, that that:

property was not crime‑derived property, crime‑used property or unexplained wealth ‑ ‑ ‑

CRENNAN J:   This is the one amount, is it not, out of the total ‑ ‑ ‑

MR GRANT:   Yes, it is the one amount of $70,000 out of the total.

CRENNAN J:   ‑ ‑ ‑ which did fall into the category of crime‑derived property.  Is that right?

MR GRANT:   No, that is taking it too far, your Honour.  There was a concession by the Territory and the Director that the other species of property were not crime‑used or crime‑derived.  There was no such concession ‑ ‑ ‑

CRENNAN J:   Yes, in relation to – no, positive ‑ ‑ ‑

MR GRANT:   ‑ ‑ ‑ in relation to that amount of money.  Your Honours, we say ‑ ‑ ‑

CRENNAN J:   It is still the case, is it not, that there is a particular interest on your part in having this question determined – a special interest, I mean.

MR GRANT:   Yes, there is no doubt about that, your Honour, a special interest on the part of the Attorney in particular.

GAGELER J:   If special leave comes at a cost, are you prepared to pay the cost?

MR GRANT:   Yes, your Honours.  When it boils down to it, if your Honours are minded to make that as a condition of special leave, obviously the Attorney would accede to that.  If it please the Court.

CRENNAN J:   Yes, Mr Wyvill.

MR WYVILL:   Thank you, your Honours.  Your Honours, I have four short points to put as to why we say this is a matter where the Court ought not to grant special leave to appeal.  The first point is this, that the proposed appeal is based on a narrow proposition which divided the court below and that is that a declaration that a person is a drug trafficker is properly characterised not as a declaration as to that fact, but solely to the effect that that person has the qualifying offences which satisfy the criteria in section 36A(3)(a) and (b).

Let me make good that point by taking your Honours to the judgments below and then to my learned friend’s submissions.  If I can take your Honours first to Justice Kelly’s judgment in the application book at page 120 and her Honour there undertakes a careful analysis of the provisions of the Act at paragraph [83] to make good the point she makes in the second line of paragraph [83] at about line 20 of page 120 that there are:

a very wide range of behaviours many of which would not be apt to render the description “drug trafficker” an accurate description of the offender.

Her Honour then goes on - if your Honours look at page 126, you will see there, firstly at paragraph [91], particularly the second sentence in that paragraph and particularly, your Honours, the second‑last line where her Honour notes that a particular element of the scheme that attracts her criticism there being:

inconsistent with the institutional integrity of the Court -

is that it may apply -

when that person may or may not be a drug trafficker –

Similarly, if we go over to page 128, third line:

That application –

the subject application –

may be made in circumstances in which the making of a declaration that a person is a drug trafficker could only be regarded as capricious:  the person may on any view of the facts be no such thing, yet the Court is impotent to restrain the use of its process to achieve that result.

Similarly in Justice Barr’s decision, if I can take your Honours very briefly to page 133 of the application book, his Honour at [104] notes the stigmatic nature of a declaration that somebody is a drug trafficker.  Then at [106] his Honour concludes that drug trafficker declaration “is a declaration of a fact”.  At 134, paragraph [108], line 2:

the legislation permits some disturbingly anomalous outcomes -

doing a similar but abbreviated analysis to what her Honour Justice Kelly did.  Then over the page again to 135, his Honour again refers at line 5 to the declaration being made:

contrary to the known or proven facts.

Then finally at 149 one can see the paramount importance of this particular element of the scheme for his Honour’s conclusion and we see that at [131] where his Honour talks about the most telling feature - “the most telling point”, I am sorry, being the fact that the court might be compelled to make a declaration contrary to fact.  So your Honours can see from that, to borrow his Honour Justice Barr’s words, the most telling point in relation to legislation was that capacity for it to ‑ ‑ ‑

CRENNAN J:   Well, suppose there are two points:  there is the contrary to fact point which you have just made submissions about; there is a quite discrete point though, is there not, in relation to the co‑opting of the judiciary in relation to an action taken by the Executive?  In other words, that second point is not quite met by the present argument, is it?

MR WYVILL:   It is not, your Honour, in this sense.  Obviously, the decision of the majority there was to take that as albeit a major element but not the only element of the whole scheme, but the case that they seek to argue on appeal is to support the Chief Justice’s position, which was that this – and I can take your Honour to that; if your Honour is aware of it I will not trouble your Honours, but if the Chief Justice ‑ the principal point of distinction between the Chief Justice’s decision and the decision in the majority was that his Honour concluded that it meant nothing more – a drug trafficker declaration meant nothing more than you met the criteria in 36A(3).

Now, your Honours, my learned friend seeks to agitate for this Court the Chief Justice’s position.  He does not seek to defend this legislation if the position – if the characterisation given to this legislation by Justice Barr and Justice Kelly is correct, and we can see that, your Honour, from my learned friend’s submissions at page 165 and, particularly, paragraph 23.  In the middle of that paragraph there is a sentence:

There is no concealment of the relevant criteria, and the declaration is in substance nothing more than a declaration that those criteria have been satisfied.

So that is the case that they wish to put before this Court, which leads to my second point that no argument will be put to this Court.  It appears that if the characterisation of the majority is correct the outcome is wrong, and so although it looks like a broad Kable argument the argument they actually seek to agitate is far narrower once one looks at it, and the significance ‑ ‑ ‑

CRENNAN J:   Although one could observe that even if the decision of the majority is correct the application still raises a point of sufficient importance.  There is little doubt that the application of the Kable principle in the context of this particular assets forfeiture legislation is a question of public importance, I would have thought.

MR WYVILL:   Indeed, your Honour, and there is no doubt that there will be at some stage another case which will raise these issues, whether it be under the Western Australian legislation or whether it be under this Act amended which would bring those important points which we accept, and we certainly would not quibble with that point, your Honour.  But is this the right vehicle, and that really leads to my ‑ ‑ ‑

CRENNAN J:   That is your emphasis really, is it?

MR WYVILL:   That is really, yes, because having identified what they seek to argue I now seek to address why, firstly, why it is not the right vehicle ‑ ‑ ‑

CRENNAN J:   By the way, do I have a correct understanding of this scheme, that there is no opportunity for a person whose assets are restrained to demonstrate that some of those assets were lawfully obtained?

MR WYVILL:   No, it is irrelevant.  It is completely irrelevant.  It has no impact on the outcome whatsoever to say that 90 per cent, 95, 99, 100 per cent of the assets that seek to be forfeited were lawfully generated.

CRENNAN J:   Thank you.

MR WYVILL:   Your Honour, the third point we make is that this narrow question of characterisation under a Territory statute which the applicant seeks to agitate before this Court is not a question of public importance and nor does a difference of opinion below require the decision.  We say that for three reasons:  firstly, because on that case as put to this Court the prospects are weak, in our respectful submission.  It is difficult to see how one can justify a conclusion that a declaration that a person is a drug trafficker is anything other than what the words say.

This has no significance beyond the Territory and there is no dispute about this because no reply has been put in to our submissions where we articulated precisely why the evils of this legislation are not shared in Western Australia because in Western Australia the legislation there – and can I just anticipate your Honour putting a question to me that this legislation might not be very nice anywhere – but the response is that the real peril here was this counterfactual risk.  That does not exist to the same extent at all in Western Australia where all of the offences which attract the declaration are offences which are commonsense, if your Honour applies it, or that common parlance might describe as drug trafficking.

So that risk does not apply in the Western Australia legislation but here – so we are talking about an issue that is unique to the Territory legislation.  The third point we make is that if it is in fact, as my learned friend submits on behalf of the Attorney, the intention of Parliament – of the Territory – that a declaration that someone is a drug trafficker was only

intended to mean that they have the qualifying criteria under section 36A(3), then they ought to amend the legislation to take away that peril and then if the appropriate case arises the other issues can be agitated.

Now, those other issues we accept are important issues.  There is no question about that.  The important issue, of course, will be the notice of contention in relation to section 50(1) and the application because this will be the first case, on our analysis, in which the just terms protection has ever been considered in the context of forfeiture where there is no connection between the property and the offence.

CRENNAN J:   There have been remarks in this Court about that very topic, have there not, which I have no doubt you will bear in mind.  I have in mind Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 271 at 294, remarks of Justice McHugh and the plurality in Theophanous v The Commonwealth (2005) 225 CLR 101 at 128, paragraphs 69 to 71 inclusive.

MR WYVILL:   Yes, as your Honour pleases.  We do note that these are additional issues of public points with public importance which we accept but we do say that because they arise in this context they are almost hypothetical.  Because you have this proposition which we say is very difficult to sustain, upon which the whole case rides, we respectfully submit that it is not the appropriate vehicle in which to air these kinds of points.  Your Honours, unless there is something further, there is nothing more that we could say to resist special leave except to seek the condition we seek.

CRENNAN J:   Thank you, Mr Wyvill.  There has been a foreshadowed notice of contention, also there would be the need for 78B notices, I would have thought.

MR GRANT:   Yes, that is so, your Honour.

CRENNAN J:   Are you of the view it will take longer than a day?  I suppose it is hard to judge in these circumstances.

MR GRANT:   It is, your Honours.

CRENNAN J:   Should we allow a day and a half on the basis that there are likely to be ‑ ‑ ‑

MR GRANT:   There are likely to be at least four interveners.

CRENNAN J:   Yes.  Very well, we will allow a day and a half.

MR GRANT:   May it please the Court.

CRENNAN J:   There will be a grant of special leave in this matter, subject to the condition that the appellant will pay the respondent’s costs of the appeal and of this special leave application.  Parties are reminded to attend to the directions given by the Registrar in respect of timetabling.

MR GRANT:   If it please the Court.

CRENNAN J:   Yes, thank you.  Just to make sure, I will just draw attention to the fact that that previous order involved the appellant paying the respondent’s costs of the appeal and of the special leave application.

AT 1.45 PM THE MATTER WAS CONCLUDED