Bradley v Trenerry

[1998] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D164 of 1997

B e t w e e n -

MATTHEW ROBERT BRADLEY

Applicant

and

ROBIN LAURENCE TRENERRY

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 MAY 1998, AT 3.11 PM

Copyright in the High Court of Australia

MR A. WYVILL:   If it pleases the Court, your Honours, I appear for the applicant in this matter.  (instructed by the Northern Territory Legal Aid Commission)

MR R.S.L. WILD, QC:   If it pleases the Court, I appear for the respondent with my learned friend, MS A.M. FRASER.  (instructed by the Director of Public Prosecutions (Northern Territory))

GAUDRON J:   Yes, thank you.  Mr Wyvill.

MR WYVILL:   Your Honours, the important issues in this case both relate to what we submit was the erroneous interpretation by the Court of Appeal of this Court’s decision in Coco.  The particular section in Coco that was erroneously interpreted is found at page 438 of the decision where their Honours the Chief Justice Mason, Justice Brennan, your Honour Justice Gaudron and Justice McHugh said this at point 3:

As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.

Your Honours, the critical words there are “the statutory provisions”.  The Chief Justice, Chief Justice Martin, and Justice Mildren both declined to adopt the construction contended by the applicant because they considered that one aspect of the provisions in this case would be rendered inoperative by reason of the construction contended by the applicant.  We say that was an erroneous interpretation of Coco because the decision in Coco plainly is directed towards the statutory provisions in a collective sense and that what their Honours overlooked ‑ ‑ ‑

HAYNE J:   Why is this a case of implication?  The passage you cite to us from Coco concerns displacement of fundamental rights by implication.

MR WYVILL:   Your Honour, the relevant displacement, of course, was the removal of the power of the court to the one small residual power of the court that on our construction remained, which was to apply a mandatory minimum sentence scheme but with the capacity to suspend a sentence.  It was our contention that on our construction there was a mandatory minimum sentence scheme but there was a small but nevertheless necessary power to ameliorate that scheme that remained with the court, a power to suspend the sentence.

GAUDRON J:   And that is to be implied, is it?

MR WYVILL: No, your Honour, that is on the proper construction of section 78B(2) of the subject provisions. It was our contention, your Honours, that the word “release” in 78B(2) does not mean conditionally release. Their Honours were not inclined to adopt that interpretation because they believe that if it was read that way then that provision would have no practical operation. Your Honours, just accepting that proposition for the time being, we say that that does not mean that one is then compelled to throw that interpretation away and to resort to the interpretation of the majority which, as his Honour Justice Mildren said, was harsh and unfair or to rewrite the legislation, as his Honour Justice Mildren did, in a way where there was no demonstrated and very clear mistake.

So, your Honours, we say that the way that we put this as being a point of importance is that if their Honours are right to say that one has to, when applying Coco, not construe any section such that it will not have a practical operation then one is implicitly, therefore, confining the dicta in Coco and confining the interpretations that are available to the court to adopt and compelling the court to look at other, and as in this case demonstrates, more harsh, harsher constructions of the legislation.

Your Honours will see that section 78B(2) says that an order referred to in subsection (1) cannot be made if its effect would be to release the offender from the requirement to actually serve the term of imprisonment. We contended that that provision ought to be read according to its natural meaning, and that would means would, not would means could.

GAUDRON J:   I do not see that it makes any difference, really, does it?  A suspended sentence that you talk of would operate, could operate - it does not matter - to release the offender from the requirement to actually serve.  The difficulty you have is the word “actually”, is it not?

MR WYVILL: No, with respect, because the focus of that provision is on the order of the court, not events that occur subsequently. It is the order of the court which must have the relevant effect attributed in section 78B, and particularly looking at the other provisions in the Sentencing Act, it is simply not the case that using ordinary language, a suspended sentence releases, has the effect of releasing an offender from the obligation to serve a term of imprisonment.

HAYNE J:   What is the effect of a suspended sentence if it is not to release from actual service of?

MR WYVILL:   The effect is to suspend service of.  Hence the name, your Honour.  The effect is to suspend the service of that sentence pending compliance with the conditions.  Your Honour, that, we say, was a construction which meant that one then did not have to reach the conclusion that the court’s discretion in respect of actually imprisoning was removed entirely in respect of persons like my client, for example.

There are two important ways in which we put the special leave issue in this case.  The first is that approach adopted by Chief Justice Martin and Justice Mildren where they said that they were not entitled under Coco to not give any part of the Act a practical operation.  The second important point is to go to Justice Mildren’s judgment, which, of course, we have to because all three judges, although for differing reasons, were against us.  Your Honours will see that his Honour Justice Mildren felt inclined to avoid the harsh interpretation of the Act which would have seen the court’s power to suspend sentences, or set non‑parole periods, removed for all property offences, not just in respect of the minimum period, but for all property offences.  His Honour felt inclined, in order to avoid that, to adopt, if I may say with respect to his Honour, a creative solution by reading in words into the Act that simply were not there, and relying upon the decision of this Court in Cooper Brookes.

If I can take your Honours to page 19X of the appeal book, and you will see that the length that his Honour had to go to, having elected not to accept the interpretation contended by the applicant to avoid the result the majority found, at about point 5:

I concede that to avoid this consequence it requires inserting into s 78B(2) words which are not there, namely the words italicized by me and appearing in the phrase “so much of the term of imprisonment required to be ordered under section 78A”.

Your Honours, we say that his Honour in respect of statutes to which the provisions to which the rule in Coco applies is not entitled to read in such words to correct a mistake because we say that the whole foundation of the principle in Coco is that the Parliament must express so succinctly and clearly that if there is a mistake then that is for Parliament to rectify not for the courts to rectify.

Your Honours, we would say that based upon Coco there is no capacity for the Court to involve itself in such a substantive way in altering the meaning of the section and relying upon the authority of this Court in Cooper Brookes.  We say that that is not applicable in respect of cases to which Coco applies.  If it is, then there must be a much higher threshold of certainty as to the level of mistake.  It must be so absolutely clear that this

was a mistake and not only that there was a mistake but that the solution, the way to correct the mistake must be absolutely clear before the courts will read in such words in order to give a construction which does invade fundamental common law principles.

Your Honours, they are the ways we would put the special leave points in this case.  Your Honours, we do contend, as is set out in the written submissions, that there are issues that relate to the general administration of justice in this case, because there are a number of people affected by this legislation.  There are issues that relate to justice in this individual case because, although that fact has been reduced by the fact that the appellant has served his sentence, nevertheless it is still his right to have that sentence set aside in our submission.

Your Honours, we do contend that this is a case that cannot merely be classified as a case of construction.  It does involve important principles concerning the application of Coco which would justify the attention of this Court.  Your Honours, unless there is something you wish me to address on specifically, they would be the submissions we would put in support of the application for leave.

GAUDRON J:   Yes, thank you, Mr Wyvill. The Court does not need to trouble you, Mr Wild.

We are of the view that sections 78A and 78B of the Sentencing Act 1995 (NT) were correctly construed by the majority of the Full Court. Accordingly, special leave is refused.

AT 3.23 PM THE MATTER WAS CONCLUDED