Blessington v The Queen; Elliott v The Queen

[2007] HCATrans 152

[2007] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S359 of 2006

B e t w e e n -

BRONSON MATTHEW BLESSINGTON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S360 of 2006

B e t w e e n -

MATTHEW JAMES ELLIOTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2007, AT 2.43 PM

Copyright in the High Court of Australia

__________________

MR T.A. GAME SC:   If the Court pleases, I appear for the applicant, Elliott, with my learned friend, MS S.E. PRITCHARD.  (instructed by Giddy & Crittenden) 

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.W. BURGESS, for the applicant, Blessington.  (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent in both matters.  (instructed by Solicitor for Public Prosecutions (NSW))

MR GAME:   If it is acceptable to the Court, Mr Walker will basically deal with the first ground and I will basically deal with the second.

GUMMOW J:   We had him in mind for some questions, actually.  Yes, Mr Walker.

MR WALKER:   Your Honours, for our part we wish to address the point which is covered in most of our written submission but is particularly focused on in our written reply at pages 148 and 149.

GUMMOW J:   Yes, that is what we ‑ ‑ ‑

MR WALKER:   My learned friend, Mr Game, will deal with all the rest.

GUMMOW J:   Just looking at 148, which is where we were minded to start anyway, it seems to have been accepted on all hands in the Court of Appeal that the earlier decision – was it 1991 – no order had been perfected.

MR WALKER:   That is right, so if I may use the two words, “jurisdiction” and “discretion”, jurisdiction was found and not doubted.

GUMMOW J:   Where was it - in what terms, in what statute at that time?

MR WALKER:   Sections 5 and 6 of the Criminal Appeal Act, which are relevantly the same.  Indeed, that is our main point.  That is the appellate jurisdiction, by leave for sentence.  Leave had been granted all those years ago.  The appeal had been heard and decided, a word I choose ‑ ‑ ‑

GUMMOW J:   What are the operative words in the statute controlling the powers once leave is granted?

MR WALKER:   In section 5 there is leave to appeal “against the sentence passed on the person’s conviction” and in section 6, as your Honours will be familiar, in subsection (3) there is a duty if the court reaches the opinion that some other sentence should have been imposed to do so.  So those are the provisions.  They are, if you like, the one constant in this case and they are not the subject of dispute as to their meaning or, for that matter, application.  “Jurisdiction” is also used in the more specific sense in our argument in relation to the power of the court being available to grant leave to reopen argument on that sentence appeal.  That was available because of the ‑ ‑ ‑

GUMMOW J:   Where does that come from?

MR WALKER:   That comes from judge-made law in relation to the so‑called finality principle and the rule established in a number of different circumstances all adding up to this general proposition that perfection of the order is required in order that there be the extra bars added which have to do with fraud and denial of natural justice.  So that jurisdiction in the specific sense of a power to grant leave to reopen is common ground.

GUMMOW J:   All that is saying really in a way is that the original jurisdiction was not spent.

MR WALKER:   That is right, and that is the original jurisdiction.  Under sections 5 and 6 it does not matter that that is a jurisdiction that was invoked before this sequence of legislative alteration of the actual serving of the original life sentences.  It does not matter that it was beforehand.  There is no retrospectivity element in our argument, as there was not in Baker.

GUMMOW J:   Where did these cases come from that talk about exceptional circumstances?  What are they qualifying or what is their footing in any common law doctrine or any statutory provision?

MR WALKER:   Your Honour, (a) it is not statutory; (b) exceptional circumstances are what I may call a category not exhaustively described, the most obvious one of which is fraud.  There is, in ways that, for example, this Court discussed in Pantorno, also a member of that category to do with a denial of procedural fairness, but even that is too large a generalisation to describe how it may arise.  Your Honours, we of course submit that we did not have to rely upon any exceptional circumstances in relation to the exercise of a discretion for reopening.  The exceptional circumstances that apply in the jurisprudence to which we have drawn attention in our main written submission are taking into account post‑sentencing matters in a sentence appeal.

GUMMOW J:   Yes, in a standard appeal, so to speak.

MR WALKER:   Yes, in a standard sentencing appeal what can be taken into account that has occurred after the original sentence, that is the sentence against which the appeal is being heard.  I will not go into it in detail.  We have set it out in writing.  There is a category, again not yet exhaustively described – probably not capable of being exhaustively described – where the interests of justice require matters to be taken into account notwithstanding that their subsequent occurrence make it difficult at first sight at least to perceive error in the original sentencing.

Your Honours, we never got to the point of being able to argue on the merits whether the drastic alteration of what it meant to be sentenced to life by the succession of legislation in question to which the court deferred qualified or not for an exceptional circumstance within the ordinary meaning of what can be done on sentence appeal.  We were knocked out at the threshold in a way that we submit perfectly fits what House v The King seeks to control.

GUMMOW J:   Yes, I was wondering – looking at House v The King (1936) 55 CLR ‑ ‑ ‑

MR WALKER:   The classic passage is at 504, 505.  There is a mistaking of the law because the majority of the Court has directed itself to this effect.  There is a parliamentary intention.  We would respectfully submit that it is either legislative or nothing, that is, it is either Parliament - the tripartite organ that makes legislation.  It is not utterances in Houses of Parliament that matter.  So there is this so‑called parliamentary, surely meaning legislative, intention to be gathered from this sequence of legislation that has been reviewed in the judgments and the written submissions before your Honours which should tell against the exercise of a discretion to reopen an appeal where there is jurisdiction to do so for lack of perfection and where the point to be argued ‑ ‑ ‑

GUMMOW J:   Just slow down a bit.  Where there is a discretion?

MR WALKER:   There is a discretion, that is ‑ ‑ ‑

GUMMOW J:   To what?

MR WALKER:   To reopen.

GUMMOW J:   In other words, it is a discretion what, to ‑ ‑ ‑

MR WALKER:   To hear further argument on the appeal which commenced all those many years ago because that appeal has the orders determining that ‑ ‑ ‑

GUMMOW J:   It is an odd sort of jurisdiction then.

MR WALKER:   It is a jurisdiction in the specific sense of a power ‑ ‑ ‑

GUMMOW J:   Most jurisdiction has to be exercised.

MR WALKER:   - - - to make a ‑ ‑ ‑

GUMMOW J:   So you exercise this by deciding not to intervene, is that how it works?

MR WALKER:   That is right, yes.  If I may just backtrack, there is the appellate jurisdiction, section 5, with mandatory outcomes.  In the event of success by the appellant, section 6.  That is unaltered by anything that happened and the court does not say that there is any detraction from it, at least in terms.  Then there is jurisdiction in the specific sense being the power in the court to grant leave to reopen the original appeal because it has not been perfected.  That is not doubted as to the existence of that, I will call it reopening jurisdiction.  That jurisdiction was mis‑exercised because, it being a discretionary question, the majority of the court regarded itself as bound or perhaps nudged – it is not altogether easy to see ‑ ‑ ‑

GUMMOW J:   Did they really, I suppose the Solicitor says.

MR WALKER:   Yes, bound, we would submit – I will come back to that – to refuse the reopening application because of this so‑called parliamentary or legislative intention.  Our point first is that the jurisdiction in question to consider whether some other sentence should have been passed, which included as a component in the argument are the circumstances such as to permit reference to these later events, that jurisdiction is entirely unaltered by the intervening legislation, no detraction from it at all, no law that said that somebody bound by these later provisions is to be deprived of a capacity to have an appeal not yet perfected in its determination reopened, let alone the rather more serious hypothetical or theoretical proposition that Parliament may have said, “And if there were such an appeal reopened, you can’t alter the sentence”.  None of that was done.

So one then turns to the way in which the Chief Justice has expressed the point at pages 74 and 75.  As it happens, paragraph 75 on page 74 is where we would first go.  His Honour says:

to grant leave, on either of the two bases advanced, would subvert a valid exercise of legislative power.

GUMMOW J:   What are the two bases that his Honour is speaking about there?

MR WALKER:   There are two.  There is leave for a new appeal out of time – I am not arguing that – and there is leave to reopen.  I am only arguing leave to reopen.

GUMMOW J:   Yes, okay, “would subvert”.

MR WALKER:   Yes, “would subvert a valid exercise of legislative power”.  The first thing we say about that language is that that does not sound as if it is a mere suggestion the Chief Justice is observing.  That sounds like a piece of important constitutional decision. 

The Court should not exercise a discretion in such a way as to undermine the purpose and object of valid legislation with the effect ‑ ‑ ‑

GUMMOW J:   The word “valid” is just superfluous, is it not?

MR WALKER:   We keep saying no challenge to Baker and Baker decided what it decided.  It serves no purpose.

GUMMOW J:   If it was invalid, cadit quaestio, as Sir Gerard used to say.

MR WALKER:   It would be a fake diamond –

with the effect, indeed for the purpose, that the intention of Parliament will be frustrated.

Frustrating the intention of Parliament expressed by legislation is obviously a ground for saying that a court should not exercise the discretion, and it is proposing a rule of law.  Paragraph 81 at the foot of the next page ‑ ‑ ‑

GUMMOW J:   Just stopping there for a minute, Mr Walker, there is some consideration in common law cases these days as to the weight, if that is the word, to be placed in evolving the common law in a context of statute.  Has that got any part to play underlying this?

MR WALKER:   Not directly – background, I suspect, only, your Honour.  May I try and grapple with it this way.  We submit that the court’s duty, sections 5 and 6, which happen to include as part and parcel of that jurisdiction the duty to consider an application to reopen where there had not been perfection.

GUMMOW J:   This power to reopen seems to come somewhere out of the ether.

MR WALKER:   It is judge‑made law.  It is the written/unwritten law.

GUMMOW J:   Yes.

MR WALKER:   There is no doubt about the existence of the jurisdiction so far as the parties or the court below was concerned.  This Court has, for example, considered it both pre and post‑perfection in cases such as Pantorno and not only that.

GUMMOW J:   Yes, I remember it well.

MR WALKER:   It is certainly a very clearly understood jurisdiction as to its existence though the limits of its scope are not perhaps completely delineated.  No doubt that is because it is a jurisdiction in aid of the administration of justice in extreme circumstances.  Your Honours, that jurisdiction together with, as I say, the ancillary element of considering leave to reopen an appeal where it has not been perfected is one which obviously is controllable by legislation.  There was no legislation pointed to in this case and none referred to by their Honours which said of that which existed by reason of section 5 and section 6 and the judge‑made law concerning the ancillary power to grant leave to reopen was in any way cut back, no reference to it.

GUMMOW J:   Paragraph 75 is hooked, I think, with 81, is it not?

MR WALKER:   Yes, 81 was where I was next going.  Each of the two bases, and there is only one – that is the reopening that we seek – invites this Court to remove the basis upon which the Parliament has enacted constitutionally valid legislation.  May I unravel that?  Removing the basis is that my client when sentenced for an offence committed at the age of 14 was sentenced to life, a discretionary sentence then, not mandatory, because of his age.

That is the so-called basis upon which the Parliament has enacted constitutionally valid legislation.  That is a very compressed reference to the fact that, in accordance with Baker, it is a constitutionally valid criterion of operation of the later legislation to attach to the combination of a life sentence, plus a non‑release recommendation, the difficulties in the way of release amounting to the virtual certainty, the practical certainty, that my client will not be released.

The point is that none of the legislation which set up the ever more onerous regime for seeking release, if you belong to the category to which my client and very few others belong, none of that legislation said anything about the appellate jurisdiction, let alone the attached jurisdiction to consider reopening, let alone the attached duty, if there had been a reopening ‑ ‑ ‑

GUMMOW J:   I think that may be because those who drafted this did not think that there was this lurgy out there, namely, an unperfected order.

MR WALKER:   Your Honour, by the time they were drafting this it must have becoming aware ‑ ‑ ‑

GUMMOW J:   You say, “I would have thought of it”.

MR WALKER:   No, but there are many at the Bar table, your Honours, that are aware that this case is not a one‑off when it comes to lack of perfection in the Court of Criminal Appeal.  This is not a one‑off.  I am not sure whether these are exceptions to prove a rule or whether they are exceptions that are the rule in relation to perfection, but there they are.

GUMMOW J:   Anyhow, this second sentence in paragraph 81 may be troubling.

MR WALKER:   Yes.  It constitutes, they say:

a failure to respect the right and powers of the Parliament to legislate -

about which we say, no, it looks at legislation – if you want to add the epithet “valid” you can and says, well, it includes sections 5 and 6 of the Criminal Appeal Act.  There is not only the power but a duty to act, when moved appropriately.  An appropriate application is an application to reopen.  True, it is discretionary as to its outcome but mandatory as to considering it judicially and that means not bound by rules that are to be found not in any statutes but in what I might call an attitude towards some people.  This part of the reasoning concludes:

This Court should be slow to exercise a judicial discretion –

there is the House v The King point –

which has such an effect and should refuse to exercise a judicial discretion, as it has in substance been invited to do ‑ ‑ ‑

GUMMOW J:   Just reverting to page 505, is it an “extraneous” and “irrelevant” matter, as well?

MR WALKER:   It is certainly that.  It is also an error of law as to the existence of the discretion as to the grounds for exercising the discretion.  In our submission, one cannot read those paragraphs, 75 and 81, without reaching the conclusion that in the majority it was ‑ ‑ ‑

GUMMOW J:   What about the concurring judgment?

MR WALKER:   I am sorry, your Honour?

HEYDON J:   Justice Howie.

GUMMOW J:   Justice Howie.  What does he say?

MR WALKER:   The approach is not relevantly different.

GUMMOW J:   Paragraph 209, perhaps, on page 119.

MR WALKER:   Line 35:

It is not, in my view, the function of this Court to review a course adopted by Parliament to protect the public –

et cetera.  None of that, of course, describes how it is supposed that the legislation in question ‑ ‑ ‑

GUMMOW J:   The difficulty may be the phrase “to review a course adopted”.

MR WALKER:   Yes.  The course adopted was to set up a regime which applied to people with two attributes, a life sentence – and I do stress a life sentence, not one that has been set aside but a life sentence, plus a non‑release recommendation.  Your Honour has seen the latest iteration of the legislation is to include in the definition of a “non‑release recommendation” even the hitherto unthinkable creature, a non‑release recommendation which has been quashed.

I say hitherto unthinkable because your Honours have seen that in the earlier decisions for the appeal that we sought leave to reopen the court had strenuously doubted whether there was any power to do anything about it, not least because there had not been power to make the recommendation in the first place.

GUMMOW J:   What do you say – just looking at the Solicitor’s submissions at 172 in paragraph 28, to pick up what you have just been saying.  Reference there is made to the 2005 Act as in effect ‑ ‑ ‑

MR WALKER:   That is the one I was just referring to, your Honour.

GUMMOW J:   Yes, in effect, making it futile to get involved.

MR WALKER:   Your Honour, the first thing to be scotched is this notion that we have to win on the order argument in order to win.  The argument I have been putting is one that does not require the non‑release recommendation to be an order at all.  It simply says, “You had a jurisdiction to consider our leave to reopen.  You have” – that is the Court of Criminal Appeal - it says that that court has wrongly regarded itself as trammelled by this other legislation in the exercise of that discretion – there is the error.

It should be sent back for the matter to be considered and all that is to be considered is is the sentence excessive as, after all, might be considered to be the expression of view given on the earlier occasion, an expression of view given but tempered and leading to a different outcome because of the possibility of release.  Particularly, that was an expression of view given in light of my client’s extreme youth.

So 28 does not accurately present a proposition that our argument becomes futile.  It does not become futile.  It does not depend upon this being an order.

GUMMOW J:   Is what you have been putting to us this afternoon adequately reflected in your draft notice at page 126?  I would not have thought so.

MR WALKER:   The last two lines of ground 2.1 could be differently pointed, yes, your Honour.

GUMMOW J:   To begin at the beginning, do you still press the whole of 2.1 and the whole of 2.2?

MR WALKER:   I am not arguing 2.2 at the moment and my friend, Mr Game, will attend to that.  As to 2.1, it is not the fact that the subsequent legislation has made it more onerous in itself.  It is simply where the subsequent legislation has not controlled the jurisdiction or the discretion to grant leave to reopen.

HEYDON J:   It has some House factors.

MR WALKER:   Yes.

GUMMOW J:   Exactly.  If you were successful in extracting a grant of special leave we would extract from you a revised notice of appeal to reflect the argument in your reply at 148.

MR WALKER:   Yes, your Honour.

HEYDON J:   There is just one thing, Mr Walker.  You are saying subsequent events, had they been known to the sentencing judge, ought to have led him to arrive at a different sentence.  Right?

MR WALKER:   Yes.

HEYDON J:   It is highly unlikely that if he had known the subsequent events he would have nominated a term of years, for example, but he might not have made the recommendation.  You are saying that what he said at the time was a customary thing to say but it had no statutory backing.  He was not to know that it was later to come to be a vital statutory trigger that would, in effect, destroy the opportunity of any shortening of the sentence.

MR WALKER:   Yes.

HEYDON J:   Does that not mean that you have to do something about those additional words in the 2005 amendment?

MR WALKER:   In the latest amendment.  Your Honour, it may be that that is something that should arise only if and when, were we to get special leave and to succeed in this Court ‑ ‑ ‑

GUMMOW J:   We would send it back.

MR WALKER:   ‑ ‑ ‑ the order ought to be to send it back.  For the Court with the power and in certain events the duty to re‑sentence, section 6, to consider whether to re‑sentence, if we were to fail on the merits on that nothing else would arise.  It may be during the course of that argument, in answer to Justice Heydon, that questions would arise concerning the significance of the provision, taking it as legislative criterion, the once and for all existence of a recommendation even if that was later quashed.

GUMMOW J:   I think the Solicitor is trying to cut that off at this stage.

MR WALKER:   But if we remove the life sentence the recommendation has no effect on us because the present law requires two things to be true, a life sentence and a recommendation.  It says of the recommendation, it is a recommendation even if it is quashed although, of course, the Solicitor’s position on behalf of the State is that it cannot be quashed.

HEYDON J:   As a humdrum point, perhaps we should not be having this conversation at all, but it would be a pity if, were special leave granted, at the hearing of the appeal suddenly it was thought that 78B of the Judiciary Act applied and no notice had been given.

MR WALKER:   Your Honour, we have given very anxious thought to that.  At the moment our position is as I have said that it would be premature to raise it.  It may be completely moot or hypothetical, but may I simply say that we have listened very carefully to what your Honour has said.

GUMMOW J:   Yes.  It would be a pity if the eventual hearing day was frustrated by what transpired to be the need for a 78B notice.

MR WALKER:   Yes, quite so.

GUMMOW J:   I am not sure at the moment what you have put in your 78B notice.

MR WALKER:   No.

GUMMOW J:   And I am not about to suggest it.

MR WALKER:   No, perhaps it would be best to maintain prudent silence, your Honour.

GUMMOW J:   Yes, all right.  Yes, Mr Game.

MR GAME:   Could I just clarify one thing, your Honours.  The argument about order was completely independent to the argument about whether or not the sentence could be revisited.  When the Chief Justice spoke about one of the two bases advanced I think he is referring back to paragraph 40, that is to say, jurisdiction to open because sentence order not perfected or if order perfected then rare case involving denial of natural justice, discretion to reopen.

That is what he is talking about there.  The argument about a new sentence was a completely separate argument and that argument about a new sentence, that is the argument that, as it were, runs into a possible constitutional issue.  I might say the constitutional issue is avoided if the life sentence goes.  If all that goes is the non‑release recommendation then the constitutional issue arises.  We argue the constitutional issue before the Court of Criminal Appeal.  The Court of Criminal Appeal did not deal with that issue.

HEYDON J:   Life sentence does not go until all forms of leave have been granted and the Court of Criminal Appeal goes through the process that Justice…..went through.

MR GAME:   That is correct, yes.  So, it is highly likely to be premature for the Court to have to deal with the constitutional issue.

GUMMOW J:   It depends on which ground you get leave in now.

MR GAME:   It does, yes, your Honour.  The second question, and it is quite independent, is whether or not by force of circumstances, what was said by the judge when he made a non‑release recommendation became an order of the court at trial and therefore a sentence so that you have an appeal against that some time later.  That is what the Chief Justice is dealing with at paragraphs 83 and following.

GUMMOW J:   Can we just look at the Solicitor’s argument at 167 – it might encapsulate this.  At the bottom of 167, there are three bases, right?  The first had two branches to it, upon becoming effective in 1977 or:

once s 2(2) was added to the Criminal Appeal Act in 2000, there was for the first time an “order” ‑ ‑ ‑

MR GAME:   That is the question that I am addressing.

GUMMOW J:   Exactly.

MR GAME:   Mr Walker has addressed the second and third.

GUMMOW J:   I do not know if he addressed the third independently of the second.

MR GAME:   I am sorry, he has addressed the second, yes.

GUMMOW J:   Yes, that is right.

MR GAME:   We never got to the third because the order ‑ ‑ ‑

GUMMOW J:   I am not sure you are going to get to the third here, either.

MR GAME:   No, I am sorry, he never got to the third because the order ‑ ‑ ‑

GUMMOW J:   I do not think he is pressing it.  Is that correct, Mr Walker?

MR GAME:   No, it is the second, not the third.

MR WALKER:   It is the second.  It is not perfected is what I rely upon.

GUMMOW J:   Yes.  You are not pressing the third, you are pressing the second.

MR WALKER:   No, your Honour.

GUMMOW J:   Thank you.  Yes, Mr Game.

MR GAME:   What was said – if you look at paragraph 89, the court accepted my submission that the sentence includes:

any matter that enforceably affects the liability for punishment of a prisoner is a sentence or a part of the sentence.

Then in the following paragraph the court accepted that if the 1997 legislation had been in place:

at the time of the First Appeal, then the Recommendation would have been an “order” ‑ ‑ ‑

HEYDON J:   That cannot be right, it has to be “had been in force as at the date of Newman J’s decision”, surely?

MR GAME:   Yes.

HEYDON J:   It would have had to have been in force in1990, not 1992.

MR GAME:   Yes, but then this argument is, in effect ‑ ‑ ‑

GUMMOW J:   This is an argument in which you convinced no one in the Court of Criminal Appeal.  Is that right?

MR GAME:   No, but we have only lost on – I am sorry, can I just also make something plain.  The Chief Justice appears to have thought at paragraph 84 that we independently needed to succeed on this ground.  We did not.  It is a quite separate argument.

GUMMOW J:   What did the dissenting judge, Justice Kirby ‑ ‑ ‑

MR GAME:   He agreed with the Chief Justice.

GUMMOW J:   On this point?

MR GAME:   Yes, your Honour.  But he saw that as no bar to ‑ ‑ ‑

GUMMOW J:   I understand.  We can grasp the notion of alternative ground, you know.

MR GAME:   I am sorry, your Honour.  Paragraph 94 is where the argument is disposed of, but my argument is that the temporal factor is actually irrelevant because when you look at what happened in 1997 – this is the very legislation your Honours considered in Baker - the non‑release recommendation gets a description.  This is behind tab 3 in the Crown material.

GUMMOW J:   It becomes the factum for the operation of the new law, does it not?

MR GAME:   Yes.

GUMMOW J:   It does not mean it acquires the character of an order?

MR GAME:   It does not mean it is an order, no, but if the person is the subject of a non‑release recommendation, which is what section (3A) says, then if the subject of the non‑release recommendation – the non‑release recommendation came from the judge, therefore it was by the court of trial.  It makes no difference that it happened years later.  The judge is the one who made the non‑release recommendation and, in my submission, the temporal problem goes when you ask who made that non‑release recommendation.  If we succeed on that, in our submission, we should succeed.  That is the order submission.

HEYDON J:   The substantive, the fundamental arguments underlying Mr Walker’s application would be the same as yours?

MR GAME:   Exactly the same, yes.

HEYDON J:   You are just talking about another gateway.

MR GAME:   That is exactly correct, your Honour, but I wanted to say one other thing about Mr Walker’s arguments and what I wanted to say is this, that what the precise nature of the discretion to reopen is a special leave question and the way Justice Kirby dealt with it at paragraphs 165 and

following, but most importantly through till paragraph 169 where he looks at – he has looked at the subsequent circumstances and then he has asked himself what would be the position if these had been, shall we say, the changes had been made before the court had dealt with the appeal.  Now, that, in my submission, is a special leave question of considerable importance, that is to say, what is the nature of the jurisdiction to reopen?

GUMMOW J:   No.  It is not in your draft notices, you see.  That is why we get a bit tetchy.  Anyhow.

MR GAME:   What is a reopening is obviously a big question and we submit that ultimately whether or not the course Justice Kirby took is – we submit that it is an orderly and appropriate course, but that is a special leave question and we submit that the question that he asks himself at paragraph 176 is likewise an appropriate question to ask, that is to say, what is the difference between this and a sentencing judge sentencing on the basis of a finding of fact which is a finding of fact that is shown to be unsound.  That is all I wanted to say in addition to the other matters.

GUMMOW J:   Thank you, Mr Game.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, I will deal, if I may, first with Mr Game’s argument.  As to that, we say that the non‑release recommendation was not an order in 1990 and that it is not an order now.  It could never have, we say, any legal consequences in the normal way that a judicial order can.

We do not accept, as the Court of Criminal Appeal did, that if the 1997 legislation had, for example, been in force in 1990 when the trial judge sentenced, or in 1992 when the Court of Criminal Appeal originally considered the matter, that the recommendation would have been an order for the purposes of section 2 of the Criminal Appeal Act, but even if all that be wrong, we say that an appeal from the non‑release recommendation would be a futile exercise because the legislative regime that governs the applicants would be unaffected by the quashing of that recommendation.

Your Honour, the reason for that is that if your Honours look at page 141 of the application book your Honours will see there the definition of “non‑release recommendation” that was inserted in – it is in paragraph 11 on that page – by the 2005 legislation.  I will not take your Honours to the full legislation.  I think there is a volume of our legislation and it is behind tab 8, but the definition, as your Honours appreciate, is the trigger which initiates the regime under that and earlier legislation that governs the applicants.

Your Honours will see there that in the definition of “non‑release recommendation” it includes a recommendation that has been quashed, set aside or called into question.  So that in those circumstances that is why we say that the exercise would be futile.

HEYDON J:   There is a constitutional cloud over those words, though.

MR SEXTON:   We would say that really those questions were resolved by Baker, your Honour.

HEYDON J:   I am saying that only because Mr Walker and Mr Game ‑ ‑ ‑

MR SEXTON:   Yes.  I was about to say I know that they say that, your Honour, but we say that it is difficult to imagine what the constitutional argument might substantially be and that really that, in a sense, they were the questions addressed in Baker because Baker was a challenge to this scheme of legislation.

HEYDON J:   But your argument is, if it is valid, it shows that it could not have been an order even if the legislation had been in place in 1990 because if it were later set aside it would still have its triggering effect.

MR SEXTON:   Yes, it is still the trigger.  All that the definition does is to say that the fact that it was made in 1990, even if it was later for some reason quashed or invalidated, does not take away its capacity to trigger the regime.  That is what that provision is designed to do.  We say that if it has that effect, and it seems, we would say, to have that effect on its face, then the ground that is put forward by my learned friend, Mr Game, cannot ever take the applicants anywhere.

HEYDON J:   You also rely on what the Chief Justice says.

MR SEXTON:   We do, your Honour, but we do say that it would not be an order under any circumstances.  But that, in a sense, a threshold question.  At the end of all of those arguments one still gets to – and even assuming that it is considered to be an order but it is quashed, all that happens we say it cannot avail the applicants.  I do not know that I can say any more about that particular ground which was the ground dealt with by Mr Game.

Now, your Honours, if I can come to the ground that was dealt with by my learned friend, Mr Walker, can I say at the outset that it is difficult to see, we would say, what basis there could be for reopening the original appeal, that is the appeal that was heard by the Court of Criminal Appeal in 1992 as a matter of discretion.  The applicants were sentenced to life imprisonment by the trial judge and what the original judgment of the Court of Criminal Appeal in 1992 said was that the sentence was “well within the range of his Honour the trial judge’s sentencing discretion and was appropriate to the horrifying objective facts of the case and to the subjective circumstances of the appellants”.

It is hard to imagine that an argument to the contrary of that could be put.  The Court of Criminal Appeal, as it noted in the most recent judgment below, is a court of error and as this Court acknowledged in Baker, the subsequent legislation relating to various prisoners, including the applicants, has not altered the legal effect of the original sentence.  So, in those circumstances, if the Court of Criminal Appeal was right, as we say it was in 1992, in finding that there was no error of any kind on the part of the trial judge in sentencing the applicants, there cannot be a basis in 2007 for reopening the 1992 appeal.

GUMMOW J:   Is that what the Court of Criminal Appeal decided?

MR SEXTON:   Yes, we say that that is what they decided, your Honour.

GUMMOW J:   Independently of what seems to have been the important weight in paragraphs 75 and 81?

MR SEXTON:   Yes.  I was just going to come to that, your Honour.

GUMMOW J:   Which are, after all – 81 is the penultimate.  It immediately precedes the conclusion that the application “should be refused”.

MR SEXTON:   Can I just talk about those pages, your Honour.

GUMMOW J:   If one is writing a judgment that is usually what one trusts people will take as the knockout.

MR SEXTON:   Your Honour, the point that I have just made that there was no error ‑ ‑ ‑

GUMMOW J:   In other words, in House v The King terms, do you say that paragraphs 75 and 81 were or were not acting on the wrong principle or taking into account an extraneous matter?

MR SEXTON:   No, we say that they were not, your Honour.  Let me explain why we say that.  The Chief Justice starts there at paragraph 74 by saying that:

This Court is a court of error.  The circumstances in which it is entitled to review a sentence in the light of subsequent events . . . are very limited.

GUMMOW J:   What is the limitation?  I cannot get anyone to explain it to me beyond saying it is what you know when you see it.

MR SEXTON:   Justice Kirby looks at some cases.  Most of them seem to fall within a notion of fresh evidence.

GUMMOW J:   They do, yes.

MR SEXTON:   Yes.  The reason to see what the Chief Justice said in context is that it was the subsequent legislation that was relied upon in this case in the Court of Criminal Appeal by the applicants.  It was the basis for their case that the subsequent legislation had altered the circumstances since the sentencing judge had sentenced them, so they relied upon the subsequent legislation.  That was the basis.  What the Chief Justice was saying is that it was not open to the court to take that subsequent legislation as a basis for reopening the original decision of the Court of Criminal Appeal.  Now, at one level it expresses ‑ ‑ ‑

GUMMOW J:   Because, if he did so, what?

MR SEXTON:   Because it does not have any legal consequences in relation to the sentence.  That is why we say that in this case the applicants could never – if that be right, and we say that it must be right – then the applicants can never find a basis for reopening here because there is no other ground on which one could point to any error in the original sentencing or in the original Court of Criminal Appeal decision.  We say that the subsequent legislation cannot be a claim of error.  It does not affect the legal consequences of the original sentence.

HEYDON J:   But in all the exceptional cases there is no error in the decision of the sentencing judge in the light of the facts known to that judge and everyone else relevant.  It is because there is some disease which is unknown or some terrible change in circumstances which is unknown but, as it were, insipient.  Here there was a great change in - it was difficult for the appellants in 1990 - the future and it would be almost impossible until they are very old unless a prerogative ‑ ‑ ‑

MR SEXTON:   But that is the Chief Justice’s point, your Honour, that unlike those other cases involving some kind of fresh evidence or some kind of change of circumstances which the courts felt they could take into account this, because it is the legislation of the New South Wales Parliament which has had this effect, is not something that could be taken into account.

GUMMOW J:   There is a distinction between new evidence and fresh evidence, is there not, in cases dealing with the appeal structure?

MR SEXTON:   Yes.

GUMMOW J:   This phrase “court of error” and “appeal by way of rehearing” tend to become slogans, I think, to some degree.

MR SEXTON:   But the point is here, your Honours, that the subsequent legislation was the basis for the reopening application.  What the Chief Justice was pointing out was that it could not form such a basis in the way that some other non‑legislative bases could.

GUMMOW J:   Where does he actually say that?

MR SEXTON:   It seems to us – I know, your Honour, it is possible to pick out particular phrases or sentences on 74 ‑ ‑ ‑

GUMMOW J:   Where is there a nice, rotund paragraph like there is in 74, 75 and 81?

MR SEXTON:   He says, if your Honour looks at paragraph 74 ‑ ‑ ‑

GUMMOW J:   It may be there.  I am just asking you to find it.

MR SEXTON:   In 74 he says:

The circumstances in which it is entitled to review a sentence in the light of subsequent events . . . are very limited . . . The fact that the Parliament has subsequently passed valid legislation impinging upon the sentence is not a subsequent event which permits reconsideration –

We say that that ‑ ‑ ‑

GUMMOW J:   Then in the next sentence you see why, “inappropriate” and why is it inappropriate.  Where do we go then?

MR SEXTON:   Your Honour, there may be some phrases there that can support the argument that my learned friend is making, but from the point of view of a special leave application one question is whether ‑ ‑ ‑

GUMMOW J:   Inappropriate, I think, because of 75 and 81.

MR SEXTON:   But, your Honour, one question for a special leave application is whether the ultimate argument that my learned friends make

could ever be made out and we say that certainly not in the case of Mr Game’s argument, for the reasons that I have given, but not in the case of Mr Walker, either, because if the appeal were to be reopened it is simply asking this Court to re‑sentence the ‑ ‑ ‑

GUMMOW J:   No.  We would send it back.  If there is an error within House we do not do it ourselves, we send it back.

MR SEXTON:   It would be reopening the appeal after 17 years when there is no basis, obviously, for doing so on the basis of the original sentence or the Court of Criminal Appeal’s original judgment.  In other words, there was ample basis on which the Chief Justice and Justice Howie could come to their conclusion in the most recent decision of the Court of Criminal Appeal.  If it is put on a number of bases, and some of them are sounder than others, well, that may be the case, but we say that there is certainly ample grounds and that they are set out in the judgments.  Those are our submissions, your Honour.

GUMMOW J:   Yes, thank you, Mr Solicitor.  Yes, Mr Walker.  What do you say about this last point?  Assume this blemish were not there, 74, 75 and 81.  It is put against you, well, really, how would you get anywhere?  How could you hope to get anywhere?

MR WALKER:   The proposition is this, the majority – particularly the passage that has been concentrated on in application book 74 and 75 – did not consider the question of reopening from the point of view of the merits of an argument as to whether the sentence was excessive.

GUMMOW J:   Excessive by what criteria looked at when?

MR WALKER:   Excessive by the criteria available in accordance with the principles to be gathered from cases such as those we have referred to, application book 133, our paragraph 17 which collects the discussion by paraphrase from Justice Kirby.  That is what – and as you will see, if there is a principle underlying those cases, it is at least arguable, we would submit very strongly arguable, that it has to do with such phrases, or it is captured by such phrases as we have quoted, for example, in that paragraph, namely, the evidence:

is capable of demonstrating that the very basis upon which the sentencing discretion was exercised has been undermined or thwarted”.

GUMMOW J:   The evidence?

MR WALKER:   That is where it is an evidentiary case as opposed to a subsequent event such as an illness, or:

the sentence was to be served in conditions which were much more onerous than, or were sufficiently different in nature from, those which were expected to flow from the sentencing order made by the sentencing judge –

That is quoted at lines 22 and following on that page.  So that Justice Kirby addressed the reopening argument on the basis of that being the argument of merit for which leave to reopen was sought.  The majority did not.  They said there was an anterior step, a threshold we could not cross, because what we were trying to do was to get out of a regime which ought to be interpreted as conveying a parliamentary intention that we not get out and that is what, in our submission, underlies the importance of the point.

With great respect, the Chief Justice correctly says there are fundamental matters of constitutional relation between a State Parliament and State judiciary involved in this matter.  Where we respectfully urge this Court should differ from the Chief Justice is this, that the relationship is different from that his Honour describes on those pages 74 and 75 and that is that the Court is bound to exercise mandatory jurisdiction - such as section 5 of the Criminal Appeal Act – is bound to consider applications for leave to reopen on their merits in relation to what can be done on appeal.

The learned Solicitor has not been able to point to any reasons in the Chief Justice’s reasons where he addresses the merits of an argument concerning the subsequent events in the same way as Justice Kirby did.  That is what we were deprived of by the error about which we complain.

HEYDON J:   But both the majority and Justice Kirby really saw there as being two stages.  Justice Kirby got through the first stage into the second.  The majority did not get through the first stage.  Therefore they did not have to look at the second.

MR WALKER:   It is certainly correct they did not have to reach a conclusion on the second stage, but the way we failed at the first stage was one where they said it would not matter whether you had merits or not on the second stage, what you are trying to do is subverting this other legislation.  That is our complaint, that they did not consider the reopened discretion on its merits and for those reasons it cannot be said, as the Solicitor does, “but if things had turned out differently you still would have failed on the merits of a resentencing”.

We did not fail before Justice Kirby who was the only judge to get to that stage and, in our submission, there is reason to believe that the original

sentencing appeal decision, 1992, was a powerful foundation for the success we had in persuading Justice Kirby on those merits.

HEYDON J:   So what Chief Justice Gleeson said about the recommendation ‑ ‑ ‑

MR WALKER:   What was said about the ‑ ‑ ‑

HEYDON J:   The personal position of the appellants?

MR WALKER:   Said about the youth and therefore the length of time if life meant life – in broad, yes, your Honour.

GUMMOW J:   Well, you ‑ ‑ ‑

MR WALKER:   So, in answer to the Solicitor‑General’s point, it is not correct that this is a record which would satisfy your Honours now on a special leave argument that we would be bound to lose if the discretion to reopen were considered three of the wrong influence of an incorrectly perceived parliamentary intention.

GUMMOW J:   Thank you.

MR WALKER:   May it please the Court.

GUMMOW J:   We will take a short adjournment.

AT 3.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.43 PM:

GUMMOW J:   In these two matters of Blessington and Elliott there will be grants of special leave in accordance with, in general terms, what appears in the present draft notices of appeal, so that encompasses both Mr Walker and Mr Game’s grounds, but as indicated today two things, firstly, the notices need reworking in accordance with what has fallen from the Bench today and we are trusting you to implement that.  Secondly, we invite the parties to give further consideration to the dispatch of section 78B notices if upon further consideration they regard it as necessary.

MR WALKER:   May it please the Court.

GUMMOW J:   The Court will now adjourn until 10.15 am on Thursday, 26 April in Canberra.

AT 3.44 PM THE MATTER WAS ADJOURNED