Attorney-General for the State of Queensland v Dodge

[2013] HCATrans 132

[2013] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B66 of 2012

B e t w e e n -

ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Applicant

and

MARTIN FRANCIS DODGE

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON THURSDAY, 6 JUNE 2013, AT 11.36 AM

Copyright in the High Court of Australia

MR J.M. HORTON:   May it please the Court, I appear for the applicant.  (instructed by Crown Solicitor (Qld))

MR D.C. SHEPHERD:   If the Court pleases, I appear for the respondent.  (instructed by Legal Aid Queensland)

HAYNE J:   Yes, Mr Horton.

MR HORTON:   Your Honours, I think there is a preliminary question of the extension of time.  The application was a few days late.

HAYNE J:   Yes, what is the attitude of the respondent, Mr Shepherd?

MR SHEPHERD:   Not opposed, your Honour.

HAYNE J:   Very well.  You may have that extension.  Yes, go on, Mr Horton.

MR HORTON:   Thank you, your Honour.  Your Honours, this application identifies a misconstruction of the Dangerous Prisoners Act caused by a misapplication of principle by ignoring the Act’s paramount protective or preventative object and treating that as being entirely consumed by the effect it might have on an individual’s personal liberty.  The court found the words ‑ ‑ ‑

HAYNE J:   Most penal statutes, Mr Horton, are enacted in the belief that by penalising conduct you protect society.  Yes.

MR HORTON:   Yes.  In my submission, if one is to have regard then to the principles which ordinarily attend penal statutes, and they certainly come into play here, one cannot then treat as irrelevant or as expunged that other protective purpose.  The court here seems to have treated that very thing as having occurred.  So the court said the provision here was clear and unambiguous, but in doing so created a false dichotomy, or sought to - a clear provision, but then relied upon principles applicable to penal statutes in saying, in effect, the construction for which the Attorney contended was to extend it. 

But once one has recourse to those wider principles, one cannot keep entirely out of account, as occurred here, the protective object of the Act.  That particular object is nowhere mentioned in their Honours’ reasons in the Court of Appeal.  They simply rely for the construction which is adopted on its apparently clear terms.  But even to adopt a position, as the court did, that the provision is clear on its face was to overlook many possible different interpretations, one of them being of course that the provision aims to prevent, protect conduct contrary to the interests of children as a class.  Your Honours will have seen the position for which the Attorney contended below was that the offender need not have made contact with an actual child in order to have committed the offence against a child, or children in this case.

HAYNE J:   Offence was one of intention, was it not, intending to do things with a child, yes?

MR HORTON:   Yes.  So once one is using an electronic means, so unable to verify by any other direct means that one is dealing with a child, one holds the belief one is dealing with a child and one is squarely within the preventive or protective features of the Act, the protective policy, in seeking to prevent that conduct in the future.  That is the very point of which this provision is engaged, as distinct from those cases, your Honours, and your Honours will have seen in the judgment where there is a mere distribution or possession of child pornography which does not necessarily have the same connection to a child or to children’s interests.

HAYNE J:   Yes, it does.  The child depicted in the offensive material would, I had thought, be the relevant child to consider.

MR HORTON:   Yes, there is certainly a connection, your Honour.  But your Honour will have seen in my learned friend’s material the case of SBD, which makes a distinction in the context of this Act and says that conduct of that kind, child pornography, is outside the scope of the definition of “offence against children”.  But we would distinguish this particular offence, the one of seeking to convey, in effect, indecent material to a child, on the basis that the belief must exist, and on the basis that if it is by electronic means, it seeks to prevent in the future the conduct occurring as against a real child, an actual child, because there is no real difference in the conduct.  Nothing more needs to happen for this conduct to have resulted in contact with an actual child.

The error then, your Honours, was not in any way alluding to or seeking to give effect to the Act’s protective purpose, having recognised at least implicitly there must be some ambiguity in the construction of the term “offence against children”.  The express words of the Act are to be given effect in the context of the legislative policy, and I have referred your Honours to the reasons for the decision of Justice McHugh in Newcastle City Council v GIO General Ltd at pages 109 to 110. 

His Honour, in my respectful submission, sets out at the bottom of page 109 over to page 110, relying on their Honours Chief Justice Gibbs and Justices Mason, Wilson and Dawson in Waugh v Kippen, the precise sequence one is to follow.  So one is to – your Honours will see there in the

second‑last paragraph if there is a conflict between two rules of construction – and here there is, potentially – on one hand these are the principles that apply to penal statutes, on the other hand there is the protective policy Act, then one has to seek to resolve them.  You will see Justice McHugh says there, quoting Waugh v Kippen:

In such a context the strict construction is indeed one of last resort –

one having applied earlier the protective principle.  It is not my submission here that one leaves them out of account.  It is simply my submission that one must come to grips with the balance to be drawn between both, and that context of this particular conduct – there is a special engagement with the concept of prevention or protection because the offence itself is aimed at conduct which shows a propensity and a likelihood, even on the same conduct as occurred in the past to make contact with an actual child.

BELL J:   That submission is apt to give primacy to the protective aspect of the legislation as distinct from engaging the weighing principle to which you referred a few moments earlier.  Given the tension which the presiding judge identified in any penal provision between the protective nature of penal legislation and the principle respecting individual liberty, was it an error for the court to read the provision by reference to what the provision says, looking at its express terms, and to conclude that an application of that approach showed that this offence did not come within its terms?

MR HORTON:   It is not clear, your Honour, exactly how the court read the provision.  On one hand, the provision is said to have been clear.  On the other hand, recourse is said to have been necessary to these wider principles.  Now, perhaps those wider principles were to demolish, if you like, the Attorney’s contention about the construction but once one has regard to that the error which I would submit occurred, once one has regard to those principles one must have regard and balance the protective feature.  That does not mean one has primacy, your Honour, I accept that, although in this case there are reasons why when conducting that balancing exercise one might give primacy to the protective policy of this Act but the error here is not conducting the way in.  If it please the Court, they are my submissions.

HAYNE J:   Yes, thank you, Mr Horton.  We will not trouble you, Mr Shepherd.

We see no reason to doubt the correctness of the construction adopted by the Court of Appeal in this matter.  Special leave to appeal is refused.

MR SHEPHERD:   We seek to make an application for costs, your Honour.

HAYNE J:   Can you resist costs, Mr Horton?

MR HORTON:   No, your Honour.

HAYNE J:   With costs.

The Court will adjourn to reconstitute.

AT 11.48 PM THE MATTER WAS CONCLUDED