Bui v Director of Public Prosecutions for the Commonwealth of Australia

[2011] HCATrans 244

[2011] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2011

B e t w e e n -

KIEU THI BUI

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 9.46 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR G.F. MEREDITH, for the applicant in this matter.  (instructed by Greg Thomas, Barrister & Solicitor)

MR D.D. GURVICH:   May it please the Court, I appear on behalf of the respondent.  (instructed by Commonwealth Director of Public Prosecutions (Cth))

GUMMOW J:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, there is an extension of time sought in this matter.

GUMMOW J:   You have that extension.

MR TEHAN:   The other matter, your Honours, is that the Attorneys for the Commonwealth and the States and Territories have been informed of this application and have indicated that they do not desire to take part in this proceeding.  Your Honours, this case concerns a Crown appeal against sentence.  This Court has said that, although now commonplace ‑ ‑ ‑

GUMMOW J:   In a federal prosecution.

MR TEHAN:   In a federal prosecution.  This Court has said that, although now commonplace, such an appeal represents a departure from traditional standards of what is proper in the administration of criminal justice in that in a practical sense it is contrary to the deep‑rooted notions of fairness and decency which underlie the common law principle against double jeopardy.

It is that common law principle, the principle against double jeopardy, insofar as it relates to federal offenders, which is at stake in this case.  The Parliaments of Victoria, New South Wales, Western Australia, Tasmania and the Northern Territory have in recent years enacted laws abolishing consideration of double jeopardy or Crown appeals against sentence, but the Commonwealth Parliament has not.

So the question in this case is whether the State and Territory provisions abolishing double jeopardy from consideration or Crown appeals are picked up by any of the provisions of the Judiciary Act, in particular sections 68, 79 and 80 of that Act.

BELL J:   You submit that the reasons of the President of the New South Wales Court of Appeal and Justice Basten in De La Rosa are correct and ‑ ‑ ‑

MR TEHAN:   That is right, your Honour.

BELL J:   That is the point you say is raised?

MR TEHAN:   That is our position, the minority opinion in De La Rosa is correct.  Indeed, your Honours, there are differences in intermediate courts around Australia and between intermediate courts.  In New South Wales it has been held that the provisions abolishing double jeopardy are directed toward removing from consideration the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

GUMMOW J:   At the end of the day, I suppose, or perhaps the beginning of the day, the question is whether the State laws are not picked up because there is other provision made by the federal law.

MR TEHAN:   There is no other provision.

HAYNE J:   Well, whether 16A of the Crimes Act is the otherwise provided that sets apart from picking up what appears in the State law.

MR TEHAN:   Well, we would say that 16A(1) includes consideration such as double jeopardy.  I mean, it has been held to ‑ ‑ ‑

GUMMOW J:   Well, if it does you have the problem that Justice Hayne has just been putting to you.

MR TEHAN:   Yes, and that means that there is a conflict between 16A(1) and the State laws, the surrogate federal law.

HAYNE J:   Unless otherwise provided and, therefore, there is the issue.

MR TEHAN:   Yes, that is the issue.

HAYNE J:   Yes.

MR TEHAN:   That is why special leave should be granted, in our submission.

GUMMOW J:   Yes, Mr Gurvich.

MR GURVICH:   Your Honours, in this particular case it is submitted that if the three stages of the Crown appeal process are analysed, as they were by the Court of Appeal in this case and in Karazisis, it would not have made any difference to the outcome.  The first two stages being the error stage and whether a different sentence should be imposed were in fact said by Justice of Appeal Basten to be picked up in any event, and when one gets to

the resentencing stage, the third stage, in this case there was evidence, by way of affidavit, of actual distress and anxiety which was taken into account by the Court of Appeal, so that related to this particular case.  In relation to the general issue as to whether the provision is picked up, it is submitted that the majority reasoning in De La Rosa is compelling and should be ‑ ‑ ‑

GUMMOW J:   Is your first submission that even if Mr Tehan makes good his point of principle, the result would be the same?

MR GURVICH:   Yes, your Honour.

GUMMOW J:   In this case?

MR GURVICH:   In this particular case, yes.  The evidence of actual distress and anxiety subsumed or absorbed any presumed distress and anxiety that might have been taken into account, if it ought to have been.  In relation to the general point, your Honours, the analysis of mental condition by the majority in De La Rosa was the correct one and any presumed distress and anxiety is beyond the scope of section 16A and 16A(2)(m), in my submission.  If the Court pleases.

GUMMOW J:   Yes, Mr Tehan, what do you say about the first point that this is not a special leave case for those reasons?

MR TEHAN:   Well, it is, your Honours.  I can go through the ‑ ‑ ‑

HAYNE J:   Well, that has advanced us a long way, Mr Tehan.

MR TEHAN: I mean, there is conflict in New South Wales. Tasmania has taken a different approach, it has engaged section 109. Victoria and Western Australia having considered the ‑ ‑ ‑

GUMMOW J:   No, but on the facts of this case?

HAYNE J:   Would we get to a different result?

MR TEHAN:   The result may well have been different.  I mean, the position is that had double jeopardy applied, that is, had the court found that the abolition provisions were not picked up, the jurisprudence which it developed concerning double jeopardy meant at least two matters:  firstly, that the court might not have intervened at all; and secondly, that a lower than usual sentence would have been passed.  Now, those principles did not apply because it was said that the abolition provisions were picked up.  You cannot say that absent double jeopardy then the result would have been the same.  That is, in our submission ‑ ‑ ‑

HAYNE J:   Where there is positive evidence that standing for sentence again has had a particular observed effect on the prisoner?

MR TEHAN:   Well, that depends upon whether you can find double jeopardy in sentencing, your Honour, to this notion of presumed anxiety and distress.  I mean, the question here is a bigger question.  Is there a conflict between 16A(1) and the surrogate federal law?  I mean, there is the question of ‑ ‑ ‑

HAYNE J:   Can I tease that out with you a moment?  You say it is larger, in what respect is it larger, do you say?

MR TEHAN: We do not go as far as saying that it necessarily engages section 109 of the Constitution.

HAYNE J:   No, but how does it go beyond presumed anxiety and concern at standing for sentence again?  What more is there in the double jeopardy notion that is to be engaged?

MR TEHAN:   There are other things, your Honour; whether a sentence towards the low end of the range should be passed if the court decides to resentence – delay, loss of reputation, legal expenses, the stance taken by the Crown in the court below.  I mean, there is a whole bag of things, so to speak, under double jeopardy in sentencing.  The New South Wales court has taken the view that it should be confined to presumed anxiety and distress ‑ ‑ ‑

HAYNE J:   But whether for other reasons grouped under this rubric of double jeopardy one should sentence at the lower end of the range, regardless of presumed anxiety and distress, whether the bare fact of standing for sentence again requires that new sentence at the low end, and whether that is a permitted consideration in determining, first, whether some other sentence should be passed, and second, if the questions are truly distinct, which they may not be, what sentence should be passed in accordance with 16A of the Crimes Act?

MR TEHAN:   Yes, that is what we say, your Honour.  That is a bigger question that falls for consideration here.  To get to the chase on the question, would the result have been the same, we say it may well have been very different if the double jeopardy provisions had been found to have been not picked up.

GUMMOW J:   Can we just look at the draft notice of appeal at 129?  The second ground there, “inconsistent”, I do not think you press, do you?  That is the Tasmanian view ‑ ‑ ‑

MR TEHAN:   We do not press the Tasmanian position.

GUMMOW J:   Yes, I thought not.

Well, there will be a grant of leave limited to what is next to paragraph 2 under the heading “Grounds” at page 129 of the application book, namely, the application of the Judiciary Act provisions.  I think you had probably better give the section 78B notice again, Mr Tehan.

MR TEHAN:   We have not actually given notices but we will, obviously; yes, your Honour.

GUMMOW J:   Yes.  This will be a one‑day appeal, I would have thought – perhaps less. 

MR TEHAN:   If the Court pleases.

GUMMOW J:   We will adjourn to reconstitute.

AT 9.59 AM THE MATTER WAS CONCLUDED