Bell v The Queen

[1988] HCATrans 198

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S11'.~3 of 198 7

B e t w e e n -

CATHERINE THERESE BELL

Applicant

and

THE OUEEN

Respondent

Application for special leave

to appeal

WILSON J

DEANE J
DAWSON J
TOOHEY J

GAUDRON J

Bell

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 1988, AT 11.25 AM

Copyright in the High Court of Australia

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MR P.J. HIDDEN, QC:  May it please the Court, in that matter

I appear with my learned friend, MR T.L. BUDDIN,

for the applicant. (instructed by J. Cooke,

Director, Legal Aid Commission)

MR M. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR P.J. BERMAN, for the respondent.

(instructed by S.E. 0 Connor, Solicitor for Public

Prosecutions)

WILSON J:	Yes, Mr Hidden.
MR HIDDEN:	If the Court pleases. Your Honours, we have

prepared an outline of argument.	Might we hand
that up?

WILSON J:	Yes.
MR HIDDEN:	May it please the Court.  Your Honours, at the

outset we are mindful of the lengthy delay in bringing

this application. The history of the preparation

of the matter, which is admittedly not a happy one,

appears in the affidavit of Beverley Anne Schurr

at page 103 of the application book. Does

the Court wish to hear submissions from us at this

stage on the question of time?

WILSON J:	Yes.	It is not a pretty story, Mr Hidden.
MR HIDDEN:	No, it is not, Your Honours.	Your Honours,

factually we are unable to add to what appears

in the affidavit of Ms Bell. It needs hardly

to be said, Your Honours, that counsel referred

to is myself. We can but submit that, as I suppose

is the customary submission in this situation,

if there has been laxity on the part of this

lady's legal representatives it should not be

visited upon her. We do submit that the issue

raised is one of considerable importance and we
are speaking of an applicant at present facing a

life sentence, and for those reasons we do ask

Your Honours to grant the enlargement of time.

WILSON J:  The Court will stand the question of an extension

of time over, Mr Hidden, and invite you to proceed

with the argument on the application for special

leave.

(Continued on page 3)

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MR HIDDEN:  May it please the Court. Your Honours, the

application is brought from a decision of the

Court of Criminal Appeal of 6 June 1985 whereby

the applicant's appeal against conviction and

sentence upon a charge of murder was dismissed.

The application, of course, relates only to

the question of sentence.

Your Honours, the facts sufficiently appear

in the remarks on sentence of the learned

trial judge, Mr Justice Maxwell, commencing at

page 15 of the application book. Do Your Honours

wish me to take you to the facts, or are

Your Honours sufficiently familiar with them?

WILSON J:	I think we are broadly familiar with them,
Mr Hidden.  I think you could come direccly
co your submissions.

MR HIDDEN:  Thank you, Your Honours. Suffice it to say,

Your Honours, the subjective material is again

sufficiently sunnnarized at pages 17 and the

following pages of the application book in

His Honour's remarks on sentence.

Now, Your Honours, the Court of Criminal

Appeal unanimously dismissed the appeal against

sentence but, of course, the reasoning of the

Court differed and the reasoning of the majority

rested upon the earlier decision of the Court

in REG V BURKE, (1983) 2 NSWLR 93. It is

perhaps appropriate, Your Honours, to turn

immediately to that case, which was the first

occasion upon which the Court of Criminal Appeal

considered the new section 19 of the

New South Wales CRIMES ACT.

As Your Honours no doubt understand,

section 19 used provide that the sentence

of penal servitude for life for murder was

mandatory and it did so by excluding from the

crime of murder the operation of section 442

of the Act. That section provided that where

the Act provided a penalty, it was a maximum

penalty and a lesser sentence could be passed.

In 1982, Your Honours, by an amending Act,

section 19 was added to substantially so that

it now provides for penal servitude for life

in the case of murder, but then goes on:

The provisions (Except in the case of

murder committed by a person who is under

the age of 18 years, the provisions) of
section 442 shall not be in force with respect
to the sentence to be passed under this

section unless it appears to the Judge

that the person's culpability for the crime

is significantly diminished by mitigating
circumstances,whether disclosed by the evidence

in the trial or otherwise.

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MR HIDDEN (continuing):  Your Honours, that section had

been considered by judges at first instance on

a number of occasions but in BURKE the Court

of Criminal Appeal first examined it and the

judgment which found favour with the majority

of the Court of Criminal Appeal in the instant

case was that of Mr Justice Miles. Your Honours,

Mr Justice Milei judgment commences at page 101

of the report but deals substantially with the

conviction appeal which is not presently relevant.

His Honour then went on, at page 105, to the question of sentence and as His Honour remarks

just above letter C:

The present appeal is the first in which the Court of Criminal Appeal has had the

opportunity to consider this important

legislation.

Then, in the last paragraph, just below letter F,

His Honour refers to the fact that thus far in

judgments at first instance three distinct approaches

might be perceived. His Honour says:

Firstly one may mention that of Roden J,

the trial judge in the present case.

According to that approach, what must be

considered is whether all relevant mitigating

circumstances are such as to produce an

appropriate sentence "significantly lower

than the likely practical effect of a life

sentence". The second approach involves

a two-fold process, initially to determine

whether the mandatory sentence may be avoided

by a consideration of whether there has

been a substantial diminution in the quality

of blameworthiness attaching to the prisoner

in respect of the commission of the crime,

and further, but only when it has already

been decided that the mandatory sentence

need not apply and the quantum of any lesser

sentence has still to be determined, to

evaluate the usual range of considerations

going to mitigation.

Then His Honour says, at letter B:

The third approach is that the sentencing

judge is bound to look at all the matters

which normally go to mitigation in the

sentencing process.

Your Honours, it was the second approach which

His Honour favoured; that is, that mitigating

circumstances qualifying under the section, in

effect, must be circumstances having a causal

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relationship to the commission of the crime.

Your Honours, Mr Justice Nagle, in BURKE, whose

judgment commences at page 100 - - -

TOOHEY J: Mr Hidden, just before you go to that, perhaps

you could resolve a difficulty for a couple of

us on the bench: what is the difference between

the first approach and the third approach?

MR HIDDEN:  Only this, as I understand it, Your Honours:

the third approach as Mr Justice Miles was

describing it was simply to say, "For murder,

penal servitude for life is the maximum, like

any other crime, and if there are any other
mitigating circumstances then a sentencing judge

can fix whatever sentence he thinks is appropriate."

The first approach, as I understand it, Your Honour,

is this: that if there are mitigating circumstances

and if they are capable of reducing the sentence

in the mind of the trial judge to one which would

be less than the practical effect of a life sentence,

then a fixed term should be imposed but if they are not so capable then life should be imposed.

So, for example, if the judge thought that

the matter on the circumstances before him was

worth the sentence of say 10 years or less he

might well impose that sentence but if his view

were that the case required something of the
order of 16 or 18 years then he might well say
to himself or herself, "Well, if I give this

person life he is going to do about that anyway,

so there is no point in fixing a high head sentence

which would probably be greater than or about
equal to the practical effect of a life sentence."

That is the difference as I understand it,

Your Honour.

(Continued on page 6)

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:MR HIDDEN (continuing):  Now, Your Honours,

Mr Justice Nagle in BURKE, it would seem, broadly

agreed with the approach o± Mr Justice Miles,

although strictly speaking, I think, what

His Honour did was express his dissent from the

views of the Chief Justice to which I will turn

in a moment but he did certainly take the view that

the words "culpability for the crime" mean
"blameworthiness" relating to the cormnission of

the crime rather than referring to deserving of

punishment in all the circumstances at the time

of sentence but His Honour was careful to point out that even that limited concept could have a

very broad meaning and at page 101, His Honour

said, just above letter B:

I find no difficulty in accepting that it

involves an assessment of "blameworthiness" as opposed to "deserving of punishment" but

I do not think it assists in laying down

specific criteria as to what may or may not

be relevant in considering that question.

Obviously it will depend upon the circumstances

of each particular case. For example, the

deprived life and up-bringing of a prisoner

may, in some cases, have contributed to the

committal of the murder and so may reflect

his culpability or a previous record

unblemished by violence may help in assessing

the extent of a passion which led to the

murder. Each case must depend upon its

own peculiar facts but short of giving

exaggerated examples, which could never be

relevant for consideration, such as the

prisoner having blue eyes or red hair, I

would hesitate to pronounce ex cathedra on

relevance in the abstract. The only thing

I would be prepared to say was that for

facts to be relevant for consideration they

must present material which would, in the

light of the general moral and social mores

of the time, be relevant in judging whether the "blameworthiness" of the prisoner for

the murder had been "significantly diminished".

In general this would include many, if not

most, of the circumstances which would be

considered by a judge in deciding upon the

proper sentence for the murder.

Now, I must confess, with respect, to some

doubt as to what His Honour meant by that last

sentence.

DAWSON J:  But there must be some circumstances which do not

go to the culpability of the crime but were relevant

for sentencing, must there not? I mean, imagine if

a man is caring for an invalid wife and five children

who are entirely dependent upon him. It has got

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nothing to do with the culpability for the crime

but a lot to do with the appropriate sentence.

MR HIDDEN:  Oh indeed so, Your Honour, indeed so.

DAWSON J: Well, if you have got to draw a line, what line

is His Honour the Chief Justice drawing?

MR HIDDEN:	Mr Justice Nagle, Your Honour?
DAWSON J:	I am sorry, yes.
MR HIDDEN:	Yes. Well, Your Honour, precisely, with respect,

Your Honour, it is not at all clear and it is in

that respect, Your Honour, that we do submit, as

we have done in the outline, that Mr Justice Nagle's

judgment indicates that the dividing line drawn by

Mr Justice Miles lacks precision and is capable of

great extension, almost into areas that

Mr Justice Miles might have considered ought be excluded by the terms of the section.

DAWSON J:  On the other hand, you have got to draw a line.

MR HIDDEN: Well, I suppose that is the question, Your Honour.

Do you have to? Our submission, Your Honour is

that - - -

DAWSON J:  Of course, the other approach, as I understand it,

would allow you to take everything that you took

into account normally in sentencing him, into account

in relation to a conviction for murder. Now, you

cannot do that because there obviously are, as I

just pointed out, some circumstances which are
relevant to sentencing but which have no relevance

in relation to the culpability for the particular

crime.

(Continued on page 8)

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MR HIDDEN:  Yes, Your Honour, depending on what is meant

by "culpability" - - -

DAWSON J:	What else is meant by "culpability"?
MR HIDDEN:	- - - but it must be understood, Your Honour,

that the view which we submit is the correct

one is that expressed by the Chief Justice, to

which I will now turn. That view does not - - -

DAWSON J:  But I gave an example: the fact

that I am supporting an invalid wife and five

children has nothing to do, on any view, with

the culpability for the crime but is relevant to sentencing, in the normal course of events.

MR HIDDEN:  Your Honour, we would submit that if culpability

for the crime does mean "deserving of punishment",

then that fact would be a relevant matter to

be considered even when the charge was murder.

DAWSON J: It means "deserving of punishment having regard

to the crime", I would think.

MR HIDDEN: Yes. Perhaps, could I take Your Honours to

the view of the Chief Justice which deals with

that question, I think. The Chief Justice, whose

judgment commences at page 94 of the report in

BURKE, said this·- His Honour referred to the new section and, at page 95, at the top, said:

In 1982 the legislature addressed itself

to a problem which had been the subject
of increasingly frequent and significant

expressions of concern in recent years.

The problem was that for every conviction

for murder the judge was compelled to sentence

the offender to penal serviture for life.

Such were the awesome overtones associated

with the crime of murder that judges were

allowed no discretion in the matter of sentence;

and no non-parole period could be specified.

This may have appeased some elements

in the community. But the appeasement was

superficial. Years ago the passing of a

sentence of p~nal servitude for life became

a solenn farce. The judge knew, the prisoner

knew, the public knew, that in the fullness

of time - perhaps in fifteen, perhaps ten
or less, perhaps in twenty or more years -

the overwhelming probability was that the

prisoner would be released on licence.

The executive government, according to its

current policy from time to time, would

take over responsibility for deciding the

actual period of custody.

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This was a plainly unsatisfactory

position.	To deprive a person of physical
freedom is a far reaching step.	The

acknowledged mechanism for taking this step
and for deciding the length of such deprivation,

is the judicial process.

And His Honour then referred to His Honour's

own decision in PAGE.	His Honour then proceeded,
at page 96B to say:

All who are conversant with the

administration of the criminal law are aware

of the wide ranging human situations that

can underlie a murder. To say that, in

practical and human terms, there are gradations

of criminality in murder is no exaggeration.

To pass the same Draconian sentence of life

for all murders became recognized as equally
insensitive as the old sentence of death

for all murders. Moreoever, the very

indeterminate character of the life sentence,

with no non-parole period, was itself open

to serious criticism.

His Honour then refers to the Nagle Report of

the Royal Commission into New South Wales Prisons.

Above letter F, His Honour continued:

This then was the context in which,

in 1982, the legislature addressed its mind
to the removal of the mandatory life sentence

for murder and the opening of the door to

determinate, or personalized, sentencing

for this, as for other crimes, in association

with the specification, where appropriate

of a non-parole period.

(Continued on page 10)

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MR HIDDEN (continuing):

There remained, however, in the legislative

mind a clear awareness of the political

implications of appearing to exhibit a weakly

merciful approach to this most heinous of

crimes. The result produced by the draftsman

has delighted the semanticists, perplexed

the judges called upon to interpret it, and appalled
those who had looked for clear and enlightened

legislation to meet this penological need.

In the few short months that the amending

legislation has been in force there have

been no fewer than three differing

interpretations placed upon it by first

instance· judges - each of which, although

differing from the other two, is undoubtedly

supportable as a reasoned and reasonable

construction of the amendment.

Now, Your Honours, the conclusion the Chief Justice

reached was this - and it appears at page 97 just above letter D:

My conclusion, the reasons for which I shall

elaborate, is that in sentencing for murder

there is a special factor to be taken into

account. That factor is that the sentencing

process starts with an acceptance of a prima

facie requirement that the sentence for murder

is life. That is the concession made by the

traditionally reserved for the worst category

legislature to some elements of popular opinion.

of such crimes. Not so with murder. That

crime, of its very nature, prima facie is to

be visited with the maximum of life. But,

having recognized that special factor, the
sentencing process then requires an evaluation

of all of the considerations, objective and

subjective, customarily weighed by judges when

sentencing.

Now, Your Honours, His Honour went on to a short

dissertation into some legal history. At the bottom

of page 97 he referred to CRIMINAL LAW AMENDMENT ACT
of 1883 which, apparently, first provided for
sentences other than those fixed by law. Section 8

of that section read:

"Where by any section of this Act an offender

is made liable to penal servitude for life or

any other fixed term the Judge may nevertheless

having regard to extenuating circumstances in

the case if any pass a sentence to penal

servitude of less duration.

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His Honour referred to the decisions of the court

since the enactment in 1883 of that provision,
referred to the view of Stephen and Oliver - this

is at page 98 of the report, in their Criminal

Law Manual where the authors said:

"The reference to 'extenuating circumstances'

in this section indicates only the kind of

cases, in which in the opinion of the Judge

mitigating circumstances exist. In such

cases, the only limit to the exercise of his

discretion is the minimum period stated."

Now, His Honour, later refers to the similarity

between the use of the words "mitigating circumstances"

there and in the section under review here.

His Honour referred to RE FORBES, at page 98, where

the Full Court said:

"The principles regulating the apportionment

of punishment, so far as that apportionment

rests in the discretion of Judges, are cormnon

to felonies and misdemeanours. Punishment

should be 'not only proportioned to the offence

in degree, but adapted to it in kind: it should

be measured not only by the abstract enormity

of the offence, but by the age,sex and

circumstances of the offender'."

His Honour refers to the fact that the old

section 8 enacted in 1883 was subsequently dropped

because, in fact, that is what judges were doing

in any event. Now, His Honour then proceeds to

observe this at page 99, having referred back to

the terms of the modern section, section 19 of the

CRIMES ACT. His Honour said:

These words pose the two questions - what

are, generally speaking, encompassed as

mitigating circumstances, and which of these

in particular are legitimately open to being

regarded as significantly diminishing the

prisoner's culpability for the crime? I observe at the outset that the draftsman,

in using the words "mitigating circumstances",

has used the very phrase used in 1883 by Stephen

and Oliver as synonymous with the phrase

"extenuating circumstances" in the 1883 Act.

The latter phrase had been treated as encompassing

generally the considerations that are more

customarily weighed in the prisoner's favour in

every sentencing adjudication: RE FORBES. In a matter

as solemn as determining the constraint upon the

the liberty of a subject, one would expect to find

no artificial limitations upon a judicial evaluation

of that whole field of considerations.

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MR.HIDDEN (continuing):  His Honour says a little later,

just above letter E:

The word "culpability" is, taken at

face value, enigmatic. Its context,

however, is such as to justify the

court construing it as meaning the

extent of the liability to criminal

judgment.

Finally, Your Honours, at page 100, His Honour said

above letter B:

I return to restate what in my view 1s

the practical operation of the amendment

to s 19. Prima facie the sentence for

murder is life. Any and all of the

considerations customarily weighed in

a sentencing adjudication are relevant

and proper to be weighed in deciding

whether the statutory maximum of life
should be reduced to a fixed term

sentence, with or without a non-parole

period. This adjudication will be carried

out in accordance with the long established

approach to the exercise of the wide ranging

sentencing discretion.

WILSON J:  In fact, does His Honour's approach supply any

distinction between the sentencing task of the court

in the case of manslaughter and a case of murder?

MR HIDDEN:  We would submit yes, Your Honour, for this reason,

and to this extent the approach taken by

the Chief Justice was different from any of the

three enumerated by Mr Justice Miles. The

difference is this, Your Honour. Sentencing for

manslaughter the judge sees life as the maximum

reserved for the worst class of case and penal

servitude for life for manslaughter would be rare.

With murder the judge proceeds upon the basis that

the sentence ought to be life, unless there is

sufficient material to justify reducing it, and that

is a significant difference, we would submit,

Your Honours. So that, for example, in any - - -

DAWSON J:  But that is very difficult to fit it with the

section, is not it, because that is not what

the section says. The section says that it is life

unless it appears that the person's culpability is

diminished and on the Chief Justice's view the

moment you find one mitigating circumstance,

related or unrelated to the crime, you are at large.

MR HIDDEN:  You are at large subject to the assumption that

life will be the sentence.

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DAWSON J:  No, not to the assumption - if that is so, then

that flies in the face of the wording of the

section.

MR HIDDEN:  We would submit no, Your Honour. If culpability

is interpreted, as it can be, we would submit,

as meaning, as His Honour said - as referring to

the liability to criminal judgment, at the time of

sentence -

DAWSON J:  Exactly, and the moment you found one circumstance,

one mitigating circumstance, then you no longer have

to have regard to the fact that the life sentence

is the starting point because you are at large.

MR HIDDEN:	If it is significant.
DAWSON J:	It does not have to be significant.
MR HIDDEN:	The section says it does, and I do not believe

the Chief Justice says otherwise.

DAWSON J:  I am sorry, you are right, yes, "significantly

diminished by mitigating circumstances", yes.

MR HIDDEN:  So that, for example, Your Honour, as we all

know, previous good character is of great relevance

in sentencing proceedings generally, but if I

can use a little argot, Your Honour, if a

37-year-old man of prior good character in

employment accepted a contract on someone and

killed for financial gain, I would imagine,

Your Honour, that the Chief Justice would say,

"His age and prior good character would normally

go in his favour in sentencing proceedings but

here, in a charge of cold-blooded murder for

gain, it is not of sufficient significance to

avoid the prima facie sentence of penal servitude

for life.

WILSON J:  In fact he said that in BURKE, and he also said that in the present case.

MR HIDDEN:	Yes, I appreciate that, Your Honour.
WILSON J:	So that in the only two cases in which he has

developed this approach to the subsection he has

nevertheless agreed with the majority.

MR HIDDEN:	In the result, that is quite so, Your Honour.
DAWSON J:	Why does he say they do not significantly diminish -

why are not they sufficient mitigating circumstances,

and the real answer is because they do not relate

to the culpability of the crime.

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MR HIDDEN:  In the instant case?

DAWSON J: In the example you gave.

MR HIDDEN:  Your Honour, that is one way of looking at

it. There is no doubt, as the Chief Justice

himself agrees, each interpretation of the

section is rational and reasonable. That is
one reason, but on the Chief Justice's reasoning,

Your Honour, I suppose the reasoning would be

the gravity of the crime is such - in that it is

for financial gain; it is cold-blooded - that

prior good character is not significantly

mitigating.

DAWSON J: Correct me if I am wrong, but it does seem that

the section necessarily imposes a two-step approach

and the Chief Justice's interpretation could be

seen as a one-step approach.

MR HIDDEN:  In one sense, Your Honour, yes, a one-step

approach but founded upon a prima facie rule

which is different from the sentencing rule in

every other case, or, perhaps it is a two-step

approach. In step one: "Itis murder, therefore

it ought to be life; step two: Is there in the

whole of the material before me sufficient

mitigation to pass a sentence other than life?"

I suppose it could still be described as a

a two-step approach in one sense, Your Honour.

But, I suppose, another example, Your Honour:

the armed robbery which goes wrong; the weapon is

discharged by a voluntarily act but not intending

to cause death or grievous bodily harm. It is

felony murder; it is prima facie life. But it

may be there that if the offender were a mature
man of prior good character, if perhaps there were

some financial difficulty which may have been a

motive for the commission of the offence, it may

be problematic as to whether any of those factors

could be said to be causily related to the act

causing death. But,I would submit, Your Honour,

that that might be a proper case for a sentence

other than penal servitude for life. But it
mav also qualify on Mr-Justice Miles' analysis

too, I suppose, on another view of it, Your Honour.

WILSON J:	Why are you spending - I am sorry, I withdraw
that.  I mean, you are spending time on it
because we have interrupted you.  But BURKE really
is overtaken by the present case which supplies a closer parallel in the majority decision
than BURKE did.
MR HIDDEN:	Yes, that is so, Your Honour. There seems to

be no doubt that Mr Justice Lee and Mr Justice Samuels

adopted quite precisely the view of Mr Justice Miles

in BURKE.

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WILSON J: Yes.

MR HIDDEN:  And the Chief Justice adhered to his view in

BURKE.

WILSON J:	He recognized that now, subject to the present
application, the matter was now settled,
obviously by recognizing the clarity of the majority decision, although he disagreed with it.

MR HIDDEN:  Yes. I must confess, Your Honour, I took the

Chief Justice to be referring more to the

numerical strength against him in recent years,

as four judges -

WILSON J:	He obviously did not regard BURKE as authoritative.
MR HIDDEN:	No.
WILSON J:	He spoke as if this case produced the authority
which settled the problem.

(Continued on page 16)

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MR HIDDEN:	Yes, Your Honour, that is quite so.	We have

spent considerable time of BURKE, Your Honour,

because that is where it all started.

WILSON J:	And it expounds the alternative views.
MR HIDDEN:	And in particular, Your Honour, perhaps where

the view of the Chief Justice was best expressed,

the Chief Justice did no more really than briefly

reiterate that in the instant case.

WILSON J:  In a strong debating style.

MR HIDDEN: Yes but, Your Honour, much hangs, of course,

on this word "culpability" or the phraee

"culpability for the crime". Both Mr Justice Lee

and Mr Justice Samuels accepted the view previously

expressed by other judges, that it meant

"blameworthiness" rather than "deserving of

punishment in retrospect". But it does seem

to be a word, Your Honour, as the Chief Justice
said in BURKE, of some ambiguity and capable

of meaning either.

DAWSON J:  When the Chief Justice says that he does not

use the whole phrase, he just extracted the word

"culpability" and does not extract the phrase

"culpability for the crime".

MR HIDDEN:  Yes but, Your Honour, if it is capable of meaning

"deserving of punishment" then one is speaking

of "deserving of punishment for the crime".

Your Honour, certainly at page 84 of the application

book, Mr Justice Lee - and this is basically

the view of Mr Justice Samuels - says:

the word "culpability" in my opinion

translates naturally into "blameworthiness".

This is the secondary meaning of "culpable" as defined in the Oxford Dictionary:

And then, over on to page 85, His Honour quotes the

definition and the first meaning being:	Guilty, criminal; deserving punishment or
condemnation~

The second meaning:

Deserving blame or censure, blameworthy.

And His Honour said:

The primary meaning is excluded because the section presupposes the need for

punishment of the crime of murder on the

establishment of the guilt of the person

convicted.

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Your Honour, that must be true of any crime.

We submit that there is no reason, in law or

logic, why the "blameworthiness" interpretation

ought be preferred to the "deserving of

punishment" interpretation. Your Honours, in

that regard we ask this Court to bear in mind
that we are, of course, dealing with a penal

statute and a very serious provision of it and,

perhaps reference might then be made to the

remarks of the Court of Appeal in New South

Wales, in a different context, in PIPER V THE

CORRECTIVE SERVICES COMMISSION	OF NEW SOUTH
WALES, (1986) 6 NSWLR 352.

Your Honours, that was a case dealing with

the interpretation of the PROBATION AND PAROLE
ACT of New South Wales and the fate of the prisoners

on parole who were returned to prison.	And its
facts are of no relevance here.	But at page 361,

giving the judgment of the court, the

President Mr Justice Kirby said this, just above

letter D:

Where there is uncertainty in the meaning

and operation of a statutory provisi0n such

ass 41 -

being the relevant section of the PROBATION AND

PAROLE ACT -

it is appropriate to adopt that construction

which enhances the liberty of the subject -

and Your Honours, without turning to it - - -

GAUDRON J: That is all very well, Mr Hidden, except that it

may be, may it not, that in relation to the

CRIMES ACT you are really talking about distinction

without differences? It may be, as BURKE shows,

and this case shows, that you are never going

to get a really different result - not as

the cases show,as they suggest, the result 1s

not going to be different. (Continued on page 18)

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MR HIDDEN: Well, Your Honour, he decided that is too hard

to predict in the long term.

GAUDRON J: It may be too hard to predict but you concede,

do you not, that you start with the prima facie

presumption of life.

MR HIDDEN:	Yes, Your Honour.
GAUDRON J:	You accept that not everything which must be

taken in terms of mitigation in sentencing in the

ordinary way will operate to reduce the life

sentence.

MR HIDDEN: Well, it will not necessarily, Your Honour. It

capable of doing it on the Chief Justice's

interpretation.

GAUDRON J:	So, you do say that everything which is available to be taken into sentencing in a non-murder case
is capable of being taken into sentencing in a
murder case.

MR HIDDEN:  Yes, Your Honour. That is the view of the

Chief Justice and the view which, we submit, is the

correct one, the difference being that the material

in its totality has to be significant and the prima

facie sentence remains low.

GAUDRON J: If you take that view, do you not virtually

disregard the opening part of the section? Do you not take away all operative effect for the

direction in section 442 'applies unless?"

MR HIDDEN: ~shall not apply unless II.

GAUDRON J: Sorry, yes. 'Shall not apply unless".

MR HIDDEN:  Yes. Would Your Honour give me a moment?

Yes, I am sorry, Your Honour, yes. As I

understand it, Your Honour, the Chief Justice's	view is an interpretation of the entire section	so that the effect of the section is precisely
what the Chief Justice said; that life remains
the normal sentence and, indeed, a mandatory
sentence unless there are significant mitigating circumstances. The question is should significant mitigating circumstances be limited to those circumstances having a causal relationship to the commission of the crime? There, the
Chief Justice says "No" but the requirement of
significance remains there.

GAUDRON J:. One wonders how they would be significant

otherwise is really to come back to the first

question, in what respect would they be significant

unless connected in some way with the commission

of the er ime.

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MR HIDDEN: Well, Your Honour, might we perhaps - perhaps

as a very recent example of how the restricted

interpretation of this section may work in

justice, Your Honours, on Monday, Mr Justice Roden

in Sydney passed sentence on a number of men.	We
have happily been able to obtain a copy of
His Honour's remarks on sentence although they
are not in the form, as yet, of a settled
transcript but if Your Honours will accept them

in that form, might we hand them up to Your Honours.

We need only refer to one page.	I am sorry.	I
think there is a page 17 missing.

(Continued on page 20)

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WILSON J:  Which page do we turn to?

MR HIDDEN:  Your Honours, page 9. Your Honours, shortly this

was, in fact, as Your Honours may be aware, a

very newsworthy case in New South Wales recently.

This was an armed robbery committed at a private

home in Willoughby where a woman, the mother

of a family, was shot. The principal in the

first degree, as far as the murder was concerned,

was the man, Neil John Angus; it was he who

had the weapon and it was he who discharged it.

The Crown based its case on felony murder but
in the event he pleaded guilty and, in fact,

as a result of his pleading guilty and indicating

he was available to give evidence against

co-offenders, a number of co-offenders themselves

pleaded guilty to one thing or another.

His Honour Mr Justice Roden referred, at

the bottom of page 8, to that prisoner's, Angus'

plea of guilty, and he said this:

We hear a lot in these Courts about contrition and remorse; frequently they

are words which are simply used because

it is to the advantage of persons about

to be sentenced to use them. In this case

I accept that there is genuine contrition

and remorse on the part of this prisoner.

His plea of guilty was not a plea of convenience,

designed simply to assist in the matter

of sentence. It followed admissions made

immediately upon arrest, and was accompanied

by valuable information which he gave to

the police. In consequence of having given

that information, he is now under protection,

and for the foreseeable future his own life

may be in danger. He has named seven
persons who have been charged. The information

given to me at the sentence hearing is that

six of those have pleaded guilty and one

awaits trial. This prisoner has offered

to give evidence. Those are matters which

in other circumstances would weigh very heavily in the prisoner's favour in the

matter of sentence. However, the law does

not permit me to take them into consideration

when sentencing for murder, unless that

requirement to which I have referred, namely

that the offender's culpability for the

crime is significantly diminished by

mitigating circumstances, has been met.

Any benefit to be derived by the prisoner

from his plea and the assistance he has

rendered, cannot, in the circumstances,
be given by the Court.

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DAWSON J:  I could not tell from that passage whether he

was applying the Chief Justice's test or

Justice Miles' test?

MR HIDDEN:	Your Honours, we can only submit that no doubt His Honour was applying the test of the majority in the instant case.
DAWSON J:	I am assuming he was following the authority

which bound him,·	but the wording he has
used would fit either.

MR HIDDEN: It strictly does, Your Honour, but I do not

know whether His Honour - - -

DAWSON J:  But that fact simply adds point to what

Justice Gaudron was putting to you that practically

speaking, it is six of one and an half a dozen

of the other.

MR HIDDEN:  I am just wondering whether His Honour, earlier

in the judgment, referred to BELL's case but,

Your Honour, as to that I can but say that

gupreme court judges have consistently taken

the view expressed by the majority in this instant

case since it was decided.

TOOHE¥ J: · Mr Hidden, can I just ask you this: if there

were, on the view of the majority, some other

factor which qualified in terms of section 19,

would that not then let in this consideration?

MR HIDDEN:  Yes, Your Honour. Once you are over the threshold

then it all becomes relevant. The difficulty is,

Your Honours - and we would submit it is pointed

up by ANGUS' case - with the restricted interpretation

of the section.

There are any number of authorities, as

Your Honours well know, and particularly recent

ones in New South Wales, on the leniency that

ought be extended to offenders who not only admit

their guilt but implicate their co-offenders

and are prepared to assist the police in their
inquiries, even to the point of giving evidence

against co-offenders.

(Continued on page 22)

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MR HIDDEN (continuing): It would seem Mr Angus did all that and

what is more put himself in an unpleasant custodial

situation because of it, being on protection and

in danger of his life. Now, His Honour, when

sentencing for murder, was unable to give any

effect to that material at all. If the Chief Justice's

interpretation were accepted, I would submit,

Your Honours, he could have done	and if could
have done properly should have done.

GAUDON J:  It is not quite accurate to say he was unable.

He was unable absent any circumstance touching on

culpability. The fact that it was felony murder

may itself, in appropriate cases, be a circumstance

touching on culpability?

MR HIDDEN:  Yes, it may have been in that case, Your Honour.

Obviously His Honour did not find so.

GAUDRON J:	For example, if one puts it in another context, assume - to go back to your argot, a cold-blooded gang contract killing, would you say that the fact that one subsequently confessed and offered to
implicate co-offenders, significantly diminished
culpability for that crime?

MR HIDDEN:  It might do, Your Honour, yes. It may involve

the police breaking a gang of serious criminals

who have been operating for years and it may bring

the community that benefit - - -

GAUDRON J: That is not the test, is it? The test is the

significant diminution of culpability for the crime?

MR HIDDEN:  Well, Your Honour, we can only return then to

our primary submission, and that is if that can
be interpreted and, we would submit, in fairness,
ought to be interpreted as meaning deserving of

punishment for the crime, then, yes, the cold-blooded

contract killer who repents, who implicates others

and who is of significan.t assistance to the police

in clearing up a major area of crime ought to get

a fixed sentence and a non-parole period, to

encourage others to do the same. There is every

policy reason, Your Honours, why that should mitigate

the sentence otherwise imposed upon him for the

murder. The view of the Chief Justice would enable

that to be done. It would then be a matter for the

judgment of the sentencing judge whether that

material was of sufficient significance, or was

significant within the meaning of the section.

But why exclude it fran consideration at all? We would sul::mit

there is no reason in logic or law why it should

be, but it would be by the restricted view.

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WILSON J:  Save for the wording of the section as construed

in a different manner?

MR HIDDEN:  I appreciate, Your Honour, to which we must at

all times return.

DAWSON J:  Section 19 is confined - or I hope it is - to

New South Wales, is it not?

MR HIDDEN:	Happily it is, Your Honour.
WILSON J:	I think every other State still has a mandatory

term?

MR HIDDEN:  I believe some States now have, actually, an

open-ended sentence for murder, Your Honour.

Victoria, I believe, penal servitude for life is

now simply the maximum. Your Honour Mr Justice Dawson

may know more about that than I do.

WILSON J:  So it is the same as manslaughter, in Victoria?

MR HIDDEN:  Yes, I believe so. Yes, as far as we know

New South Wales is the only State that has restricted

it in terms of this nature. The question is,

what is the restriction? Your Honours may

derive some assistance as to the intention of

the section by the article of Dr G.D. Woods, QC,

who is actually the draftsman of the section
when he was director of the Criminal Law Review

division in Sydney. That article is entitled

The Sanctity of Murder: Reforming the Homicide

Penalty in New South Wales, 57 ALJ 161.

DAWSON J: What does he say it means?

(Continued on page 24)

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MR HIDDEN:  Your Honour, the difficulty is

he does not really address this problem.	The
problem must have arisen	chen, Your Honour,

because there is a footnote reference to

REG V MURRAY at page 165, which was a case at

first instance where Mr Justice Cross raised

the problem. The author does not really deal

with it, but what it does make clear is this:

there is no doubt that the context in which
the amendment was first contemplated was that

of domestic violence and a consistent call

for reform of the mandatory life sentence for

murder when killings took place in a domestic

context and did not qualify as manslaughter.

But, as the learned author says, at page 166:

The new S. 19 covers all types of

murders, not only those connnonly referred

to as "domestics".

And indeed the learned author deals with the

felony-murder problem and how the section might

alleviate sentence in that context in situations

where the substantive rules appear to work injustice.

But, basically it seems, according to the

learned author, Your Honours, four options were
considered to ameliorate the murder situation.

One was the adoption of the proposal of

Lord Justice Kilbrandon that an offence of

unlawful homicide be created and the old connnon

law offences of murder and manslaughter be

abolished. The next was degrees of murder,

something along the American lines; the next

was retaining murder and manslaughter, but giving

a complete sentencing discretion; and the fourth

was the one arrived at, retaining the traditional

distinctions but giving a limited sentencing

discretion in the context of the danger the

section might cause judges to pass horrendous

fixed sentences of 30 or 40 years, and admittedly

in that context the leared author says, at page

163 in the second column:

Thus, under the new law, as under the

old, judges in new South Wales performing

the sentencing function must bear in mind

that in the "ladder" of penalties, penal

servitude for life is the top rung. However

nasty be the facts of an assault or a case
of armed robbery (or a series of them),
unless life be taken, it would generally be

inappropriate to award a greater sentence

than would be imposed for murder.

The effect of the news. 19 is to retain

a top rung on the "ladder". It allows a

discretion downwards in penalty, but it does

C2T31/l/JM	24	7/9/88
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not allow judges the right to impose a

fixed penalty of such extreme length

as in effect to increase the real likely

length of detention in prison.

The learned author deals with the words of the

section referring to mitigating circumstances

whether proved in evidence at the trial or

otherwise and deals with the fact-finding function

the judges would have to embark upon. Again,

aan:i..ttedly in that context, at page 165 the

learned author says, in the first column at

about point 6:

The legislature has traditionally left

it to the courts to determine "mitigating

circumstances" in sentencing, and

s. 19 is not intended to establish for the

offence of murder a new and different set
of principles as to what may be a

"mitigating circumstance" or how it might

be taken into account by a court. Indeed,

the aim is to avoid at this stage any decisive legislative intrusion into a

developing and difficult area of law where

the case-by-case application of judicial

reasoning and discretion may, it is hoped,

be expected to produce generally fair results.

Ture it is, Your Honours, that the learned author

there refers to the case of MURRAY, where

Mr Justice Cross first raised the restrictive

interpretation, but no doubt the author was
referring to the result in MURRAY where, in fact
despite horrific facts, the offender enjoyed the

benefit of a fixed sentence and non-parole period.

(Continued on page 26)

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MR HIDDEN (continuing):  Your Honour, we have already

referred to this but we do submit that the

remarks of Mr Justice Nagle in BURKE to which

we have referred also point up the difficulty

of confining the more limited test enunciated

by Mr Justice Miles. What circumstances are

causally related to the crime? How far back

can you go? In what circumstances can you look

at the offender's entire history and in what

circumstances can you not?

In the light of difficulties like that,

Your Honour, we would submit that the interpretation propounded by the Chief Justice does not distort

the words of the section.

DAWSON J: It just throws up the problem in a different

way by p_rop_osing the question:	what significantly
diminishes culpability?

MR HIDDEN: 

Yes but, Your Honour, it has the benefit of

leaving that much more to the wisdom and judgment
of the sentencing judge.

DAWSON J: Well, on either approach it does, really.

MR HIDDEN:  And we would submit the approach of the majority

here is somewhat restrictive, Your Honour. It
is not easy - admittedly, it is not easy to say

just how restrictive.

DEANE J: But there is nothing strange, is there, in the

legislature saying, "If the gravity of the crime

of murder is unmitigated then the life sentence

will remain but if the gravity of the crime of

murder is mitigated then the sentence will be

determined in accordance with ordinary sentencing

principle.

MR HIDDEN:  Yes, Your Honour, although, with respect, one

still has something of the same semantic problem.

DEANE J:	Not reallX.	I mean, I said, "the gravity of
the crime'.

MR HIDDEN:	Yes.
DEANE J:	I am not denying the force of the Chief Justice's approach but all I was querying, whether there is not a degree of logic in the other approach
also.
MR HIDDEN:	Of course, Your Honour, in the more restricted

approach. Of course there is, Your Honour.

DEANE J: Quite apart from the language used, one can see

a coherent understandable policy regardless of

whether one agrees with it or not.

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MR HIDDEN:  Yes, Your Honour, I suppose one can either

way. Our submission is that the view of the

Chief Justice makes sense of the section. It
is consistent with the principle of giving the
section the interpretation which enhances the
liberty of the subject, giving it the most benign

interpretation one can, given that it is a serious provision in a serious criminal statute and leaves

the question of significant mitigating circumstances

to the common sense and wisdom and experience

of sentencing judges where it ought be left.

And we submit nothing in the wording of the section

takes it from them, except that as the

Chief Justice says, the section itself necessary

means that with murder you work down from life

rather than up to it as you might with other

offences. May it please the Court.

WILSON J:  Thank you, Mr Hidden. The Court will retire

for a moment to consider the matter.

AT 12.19 PM SHORT ADJOURNMENT

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UPON RESUMING AT 12.35 PM:

WILSON J:	We need not trouble you, Mr Gray.
MR GRAY:	Thank you, Your Honour.

WILSON J: It is unfortunate that this application is made

almost two and a half years out of time.

Nevertheless, we have considered the application

for special leave itself on its merits. The

ground upon which special leave is sought is

that the majority of the Court of Criminal Appeal

erred in the construction they placed upon tae

proviso to section 19 of the CRIMES ACT 1900,

New South Wales. That construction was to say,

in substance, that the correct approach involves
a two-stage process, initially to determine whether

the mandatory sentence may be avoided by a

consideration of whether there has been a substantial

diminution in the quality of blameworthiness

attaching to the prisoner in respect of the commission

of the crime and, further, but only when it has

already been decided that the mandatory sentence

need not apply and the quantum of any lesser

sentence has still to be determined, to evaluate

the usual range of considerations going to mitigation.

In placing that construction on the proviso,

Their Honours proceeded, in substantial accord,
with what the learned Chief Justice conceded

to be, and I quote:

the overwhelming numerical weight of judicial

opinion -

amongst those members of the Supreme Court of

New South Wales who have had occasion to consider

the section.

The Court is not persuaded that there is

any error on the part of the majority in this

case. The meaning of the provision is now settled

and there is no occasion for the grant of special

leave to appeal. That being so, there would

be no point in granting the application for an

extension of time and that application is refused.

The Court will now adjourn until 10. 15 tomorrow

morning.

AT 12.37 PM THE MATTER WAS ADJOURNED SINE DIE

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