Broad v The Queen

[2010] HCATrans 296

[2010] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 2010

B e t w e e n -

BARRY RAYMOND BROAD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 11.08 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear with MR A.M. HOARE for the applicant.  (instructed by Robertson O’Gorman Solicitors)

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with MS A.L. MEISENHELTER for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Smith.

MR SMITH:   Your Honours, Mr Broad says the special leave question in this case involves the extent to which a sentencing judge may go behind an agreed fact negotiated between the Crown and the defence before sentence.  It is submitted that this is a very important question to the administration of criminal justice because often the parties do negotiate detailed facts, pleas of guilty are entered on that basis and parties have expectations when they go to court. 

This Court has not directly dealt with this point, I submit to the Court, in previous decisions.  Other decisions of this Court deal, for example, in Malvaso’s Case (1989) 168 CLR 227 with plea agreements and the effect of a fact on sentence, but the circumstances and limits of a judge’s investigative powers, I submit to the Court, have not been clearly set out by the High Court previously, hence, special leave is sought in this case. Your Honours, it is submitted by Mr Broad that this is an appropriate vehicle for special leave because we know what sentences the co‑offenders received here.

Your Honours may have seen from the material that the head of the operation, Mr Janusaitis – admittedly my client had some previous convictions, your Honours may have seen, and I think Mr Janusaitis did not – but he being the head of the operation received six and a half years with a recommendation for parole after 20 months.  My client, being lower down the scale, received seven years with 27 months for parole.  I have set out in the submissions how all of the other offenders received less than my client received.  So the submission is that the facts the judge found in this case directly affected the sentencing results for Mr Broad, hence, the applicant submits this is an appropriate vehicle for special leave in this case.

HAYNE J:   Was the amount of marijuana at stake a total of 220 pounds?

MR SMITH:   It was between 122 and 222 pounds, your Honour, somewhere between those two figures.

HAYNE J:   The point of controversy at the point of sentencing was whether Mr Broad’s financial advantage was limited to how much per pound?

MR SMITH:   $100 per pound, your Honour.  There were actually three facts which were in dispute, as it were.  The first was the amount of money per pound, which was the $100 pounds, which the Crown did not dissent from in the agreed statement of facts, but perhaps more importantly was to whom he delivered the cannabis because defence counsel actually tendered the surveillance records when this issue arose with the learned sentencing judge and it did show the cannabis was delivered to two people, which was consistent with the telephone intercept evidence.  There were two people referred to as “The Leb” and the “Big Fella”. 

The submission by the defence was that the larger quantity of cannabis was delivered to each of those persons and it was diminished by the time the police went around to that place when the search warrants were executed.  That was the defence contention there.  That was not accepted by his Honour.  There was about a little over 11,000 found in a wall cavity at my client’s house which was consistent with a profit perhaps of $100 per pound, somewhere between those two figures I have mentioned, and there was no other unexplained wealth as put up by defence counsel to the learned sentencing judge. 

HAYNE J:   What is a sentencing judge to do when confronted by a set of facts said to be agreed between the parties which the judge regards as intrinsically improbable?

MR SMITH:   Your Honour, in such a situation there would be occasion for a sentencing judge to not accept such facts, but in this case the submissions made by defence counsel were not inherently fanciful or improbable. 

HAYNE J:   But that would make this application then an application for leave to appeal about the validity of the minor premise of the argument, not about the validity of its major premise.  I thought you wanted to say or to advance as a general all embracing position once facts are agreed between prosecution and defence, a judge must sentence on those facts.  Now, that is a very large proposition, Mr Smith.

MR SMITH:   It is a large proposition and I have made the concession, your Honour, but can I refer your Honours to section 132C of the State Evidence Act, which is an unusual provision because the third subsection – and it is in the material.  I think your Honours will find it as probably the third lot of sections in section 132C(2):

The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

Which would permit that which your Honour and I just debated.  But subsection (3) is interesting because that then goes to a situation where there is no admission or a challenge to an allegation of fact and then the Briginshaw type test seems to come in at that stage, that is, the shifting balance of probabilities.  So an extension of subsection (3) may be that it is only where there is non‑admission or a challenge that then the judge goes and makes that finding, although admittedly the term “may” is used in subsection (2).

So those sections did govern these proceedings, in my submission.  Even if I do make the concession that if a fact is entirely improbable and a judge may reject that, there is still occasion for this Court to lay down general rules, I submit, about the importance of agreements between the parties and the limits of the inquisitorial power.  Now, it may be, your Honours, that that does involve looking at the facts of this particular case but, in my submission, that does not mean that that precludes a grant of special leave where the question is of significant importance, as it is to my client.

HAYNE J:   We considered questions of agreements as to facts in the matter of GAS, did we not?

MR SMITH:   The Court did, your Honours, and, in particular, the Court at paragraph 30 on page 211 referred to this issue, but the issue is more rather the effect of the facts by reason of the plea agreement.  Was the court bound by an agreement between the parties as to the effect of facts?  Of course, for example, if the Crown puts up a sentence which is obviously too low, even though that be agreed between the parties, a trial judge is obliged to sentence correctly.  That is a different point, I submit, to the instant case where there was no agreement ultimately on the penalty, although admittedly the trial judge did actually go higher than what the Crown submitted for, but that is not the point I am debating here.  It is the aggravated fact found by his Honour beyond the agreed statement of facts led to the higher sentence than everyone else involved in this operation. 

So whilst the point was to an extent discussed in GAS, your Honours, really the most direct authority on the point is the New South Wales Court of Appeal decision in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593. Now, Chow, your Honours, was referred to by Justice Chesterman in the Court of Appeal and his Honour referred to that passage at page 606 between points P to G, and that is accepted, but there were also some other important statements made by President Kirby, as he then was. For example, at points A to B on page 606 it was noted that:

In criminal proceedings, judges should avoid adopting an excessively inquisitorial role.  They should maintain an appropriately neutral position.

Further, at page 607, which is over the page, at point C his Honour did find that:

the judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing.  But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that required by the essential ingredients of the offence –

In fact, his Honour at point F noted that there was authority for the proposition that a judge might accept the version most favourable to the accused.  Our Evidence Act in Queensland does not provide as to that, but the point I was really making is that the most direct authority on point is Chow’s Case and there does seem to be a difference in approach between some of the cases and because of the important outcome for my client, that is, receiving this excess penalty – and we can see that an injustice has resulted in this case by reason of what the co‑offenders received.  It is not just something in the ether.  We know what they did receive from other judges of the Supreme Court of Queensland who relied on this schedule of facts.  So that is why, your Honours, the applicant submits GAS does not directly deal with this point and this case does provide an appropriate vehicle for the Court to lay down important principles as to the adversarial process in criminal proceedings.

CRENNAN J:   After dealing with Chow, page 34 of the application book – Chow is dealt with at paragraph [33] at the bottom of page 33. Their Honours, in paragraphs [34], [35] and [36] deal with the inference which the primary judge drew from the agreed facts and deal with the evidence relevant to the primary judge’s task. What I wanted to ask you is, what do you say – I understand the points you were making in terms of  Malvaso and GAS and Chow, but after discussing principle, their Honours then turn to the inference drawn and the evidence available.  What do you say about that in the context of applying for special leave?  In other words, the Court of Appeal finds that it was open on the evidence for the judge to draw the inference which he did about trafficking on his own account.

MR SMITH:   The applicant’s response to that point, your Honours, is that these findings obviously enough were made by the primary judge.  However, the agreed facts were not improbable or fanciful and by reason of

the rules where sentencing judges should not engage in an inquisitorial process the trial judge ought not to have made those findings.  So it really comes back to the rules which should apply to agreed statements of fact. 

What the applicant submits is that because of the circumstances of this case both the primary judge and the Court of Appeal should not have been allowed to make those findings against my client.  That is my response to that proposition, your Honours.  In the applicant’s submissions we have pointed out why it is we say that the agreed statement of facts was not improbable or fanciful; the surveillance evidence, for example.  They are my submissions, your Honours.

HAYNE J:   Yes, thank you, Mr Smith.  We will not trouble you, Mr Moynihan.

We are not persuaded that the decision of the Court of Appeal of Queensland is attended by doubt.  Special leave to appeal is refused.

AT 11.24 AM THE MATTER WAS CONCLUDED