Burgess v The Director of Public Prosecutions

[2002] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M94 of 2001

B e t w e e n -

DIANE LESLIE BURGESS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 10.07 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR J.P. DICKINSON for the applicant.  (instructed by Slades & Parsons Solicitors)

MR G.M. HORGAN, SC:   If the Court pleases, I appear with my learned friend MS S.E. PULLEN, for the respondent.  (instructed by K. Robertson, Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Mr Grace.

MR GRACE: If the Court pleases, the underlying basis for the proviso in section 574 of the Crimes Act Victoria 1958 is the double jeopardy principle. It is significant that the proviso survived unamended after the Crown was given the statutory right to appeal against sentence in Victoria in 1970. Sections 574 and 567A(5) are enacted in similar if not identical terms in all other jurisdictions in Australia with the exception of the ACT.

GLEESON CJ:   There is a fairly consistent line of authority in the courts, is there not?

MR GRACE:   There are decisions of three separate courts of appeal, one in Queensland in the matter of Beldan, one in New South Wales in the matter of Ly and one in South Australia in the matter of J.  The two latter cases dealt with breach of undertaking cases.  Beldan is the only case that deals with the matter in similar context to that by the Court of Appeal of Victoria in this case.  The decision in Beldan, however, is attended with a failure to analyse the sections concerned.

GLEESON CJ:   Where is the reasoning in Beldan, Mr Grace?

MR GRACE:   The reasoning in Beldan is at 188 in the judgment of his Honour Justice McPherson.  In the last substantive paragraph on 188 his Honour says:

The proviso to s.671B must therefore be taken as extending as much to the present appeal as to any other.  Nevertheless, the prohibition it contains is confined to evidence “not given at the trial”.  Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them.  The material sought to be placed before us is directed at evidence, particularly the contents of the letter dated August 14, 1985 –

that was a forged character reference –

and other statements received from the Bar table under s.650, that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect.  In cases of that nature courts have shown a strong disposition to interfere on appeal:  see, for example, Meek v Fleming; Bills v Roe; Skone v Skone.  It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind.

So, essentially, what we submit is that that is an assertion based upon English authority that in cases such as fraud or deception, the proviso has no application.

The New South Wales decision of Ly follows Beldan, as does J, but those were both cases of breach of undertaking.  It is significant that in Victoria in 1997 the Victorian Government introduced legislation to amend 567A in Victoria and similar provisions have now been enacted in New South Wales and elsewhere but not in all jurisdictions to cover the breach of undertaking case and we would submit that the reason that the legislature has enacted in Victoria, for instance, section 567A(4A) to deal with breach of undertaking cases is specifically because there must have been a doubt in the mind of the legislature that the proviso would apply to circumstances where there were breaches of undertaking.

GLEESON CJ:   What is the remedy where a fraudulent plea in mitigation of sentence produces an inadequate sentence?

MR GRACE:   The remedy is a charge of attempting to pervert the course of justice or some similar charge.

McHUGH J:   What about certiorari to quash the original sentence on the ground it was a judgment obtained by fraud?

MR GRACE:   If certiorari were attached to that judgment, perhaps, but that would not apply necessarily to a Supreme Court judge; it would apply to a lower court judge.  So there would be problems in having a universal application of that particular remedy, but the remedy, we would say, is in the criminal jurisdiction in laying a charge against an individual either for perjury if that individual was to give evidence in the court below on sentence, which is a rare occasion, admittedly, or, more appropriately, a charge of attempting to pervert the course of justice or a similar charge which would go to the administration of criminal justice.

McHUGH J:   What is your answer to the view of Justice Phillips that 567A(5) means that you have to modify 574?

MR GRACE:   Because there is no legislative warrant for that, firstly.  Secondly ‑ ‑ ‑

McHUGH J:   But it says that they will apply:

with respect to procedure shall so far as those provisions are applicable and with such modifications and adaptations as are necessary ‑ ‑ ‑

MR GRACE:   There is no width to the expression “as are necessary” in the reasons given by his Honour Justice Phillips.  One would need to confine what was necessary and it is not simply sufficient, we would say, to answer the question as to what is necessary by leaving it to a court to determine whether the circumstances of the case fall within that particular breadth of expression.

McHUGH J:   But one of the reasons why the Crown might want to appeal is because of the facts of cases such as the present where there was a complete misleading of the court, a fraudulent obtaining of a suspended sentence.

MR GRACE:   I appreciate the Crown may wish to appeal.  However, the double jeopardy principle, which is the paramount consideration in cases of this nature – and, as I indicated earlier, the proviso survived the introduction of the Crown’s statutory right of appeal – ought to be the prevailing principle that is considered when analysing or interpreting the statutory provisions.

GLEESON CJ:   What is the double jeopardy principle?

MR GRACE:   That a person ought not to be placed in jeopardy of being punished for a second time in circumstances where a primary judge’s decision is not attended with the error.

McHUGH J:   Once the Crown was given the right of appeal, it denies that very proposition.

GLEESON CJ:   And you just told me that the remedy in a case like this is to charge somebody like your client with attempting to pervert the course of justice.  Is that not a form of double jeopardy?

MR GRACE:   No, that is for a separate cognitive offence, not to be punished again or more severely for the offence for which the person has been sentenced.

GLEESON CJ:   Is not the problem here, Mr Grace, that the words of the proviso are ambiguous.  All that the courts have done is to attempt to give them a purposive interpretation.  What does it mean to say you are increasing a sentence by reason of or in consideration of evidence that was not given at the trial?

MR GRACE:   Justice Phillips attempted to get around that problem by saying the sentence in this matter would have been increased in consequence of the new evidence, the words “in consequence” not being the same as the words as contained in the proviso.  We would say that that is just not an appropriate way to overcome the impact of the proviso.

GLEESON CJ:   What Mr Justice McPherson said in Beldan, as I understood it, was to say that if you are leading evidence at the appeal to establish that evidence given in mitigation at the trial was false and fraudulent, then you are not increasing the sentence by reason of or in consideration of evidence that was not given at the trial; you are increasing it on the basis that evidence that was given at the trial is shown to be false.

MR GRACE:   We would submit that is a fiction.

GLEESON CJ:   It is an attempt to deal with statutory language that does not have a transparently clear meaning.  The statute does not say, for example, under no circumstances can the Crown lead any evidence on an appeal.

MR GRACE:   No, it does not.  The Crown may wish to lead evidence in a myriad of cases which have nothing to do with fraud, for instance, to establish a guideline for the imposition of a range of sentences.  In New South Wales, for instance ‑ ‑ ‑

GLEESON CJ:   But what would a Crown be leading evidence on a Crown appeal for except to get the sentence increased?

MR GRACE:   To establish principles for guidance of lower court judges in subsequent cases, for instance.  There might be other considerations that come to the fore.  The answer to the earlier problem raised by your Honour is to submit this, that it is not a usual course for the Crown to lead evidence.

GLEESON CJ:   Let me give a practical example of a kind that I have come across on a number of occasions.  Suppose a person gets a reduced sentence at first instance on the basis of a promise to co‑operate with the authorities and the person then does not co‑operate with the authorities.  Can the Crown appeal and seek an increase in the sentence on the basis of the failure to give effect to the promise of co‑operation?

MR GRACE:   That is exactly what happened in J, the South Australian decision, and in Ly.  There are now statutory provisions in New South Wales and in Victoria which govern exactly that situation.  So that in Victoria the legislature saw fit in 1997 to enact a specific provision in 567A(4A) which gives the Crown the right to appeal at any time where there has been breach of such an undertaking.  The point I sought to emphasise earlier, your Honours, was why was it necessary for the legislature to give the Crown that right and to give the court the power to entertain such an appeal where there had been a breach of undertaking if the matter was already covered by provisions such as 574 and in combination with 567A(5A).

McHUGH J:   But that may be because it was part of a package which allowed an appeal to be brought at any time whether or not the sentence had been served.

MR GRACE:   Could I take your Honours to the Victorian parliamentary debates which are in the materials.

GLEESON CJ:   What tab?

MR GRACE:   It is not at a tab; it is a separate document, I understand, that would have been filed.

GLEESON CJ:   The only separate document filed that I have is the decision in Ly.

McHUGH J:   That is all I have as well.

GLEESON CJ:   I do not know why it is separate because we already had it in the folder.  You had better just read out what you want to rely on.

MR GRACE:   It is the parliamentary debates of 18 September 1997 in the Legislative Assembly of Victoria.  It is a second reading speech of the Attorney‑General, Mrs Wade, in relation to the Sentencing (Amendment) Bill.  The relevant part says this:

The amendments proposed by the bill provide the Director of Public Prosecutions with a new right to appeal to the Court of Appeal in certain circumstances, address some problems that have arisen in the area of fine enforcement . . . 

Resentencing offenders who breach an undertaking to assist law enforcement authorities.

It is important for public policy reasons that the law encourage co‑offenders to cooperate –

then some examples are given.

In order to encourage accomplices to testify for the prosecution and assist law enforcement authorities, the courts will recognise their help by reducing the sentence imposed on them for their part in the crimes.  To minimise the risk of an informer falsely implicating others and giving evidence merely to please law enforcement authorities or the court passing sentence, it is important for the informer’s criminal charges to be finalised and sentence passed prior to the trials . . . 

A problem arises, however, where the informer then fails to honour the promise.  Despite having breached the undertaking which gave rise to a lighter sentence there is no ability to challenge the reduced sentence which resulted.

An informer can therefore make a promise to assist which he or she has no intention of carrying through and receive a lesser sentence.  The broken promise will often fatally weaken the prosecution case.

Both the commonwealth and New South Wales jurisdictions have legislated for a specific power to appeal against reduced sentences imposed on informers . . . In other state jurisdictions the issue is addressed by the Director of Public Prosecutions (DPP) obtaining an extension of time within which to appeal . . . The DPP appeal provisions in the Victorian Crimes Act 1958, however, are not wide enough to enable a similar practice to be adopted in this state.

So those were the reasons that Victoria enacted the changes to section 567A by introducing the new subsection (4A).  There was believed to be no power in those circumstances.

GLEESON CJ:   One of the reasons there was believed to be no power was that a Court of Criminal Appeal usually operates as a court of error and you do not display error on the part of a sentencing judge by showing that the offender has not complied with an undertaking given to the sentencing judge.

MR GRACE:   Yes.  However, your Honours, on 18 September 1997 the legislature had the benefit of the decisions in Queensland, South Australia and New South Wales which were to the contrary.

GLEESON CJ:   You mean the Parliament of Victoria is to be taken to have acted on an assumption that the decisions of the Courts of Criminal Appeal of New South Wales, South Australia and Queensland were wrong?

MR GRACE:   One cannot say they were not aware of those decisions because those decisions in part had been referred to and had been the subject of some discussion in Victorian courts.

GLEESON CJ:   Had any Victorian case taken a different view?

MR GRACE:   No.  The only case that touches upon the issue, but in dicta only, is the 1974 decision of the Full Court in the matter of Kane in which there was ‑ ‑ ‑

GLEESON CJ:   What page?

MR GRACE:   It is at page 766, your Honours.  It is at line 36 on that page where the court said:

The Court does not find it necessary to go to the additional evidence of the respondent’s conviction subsequent to the committal of the instant offence for the purpose of determining the appropriate punishment. It may be that the evidence is receivable (as was submitted in argument) under s.574 of the Act, and that the proviso to that section, which would, in the case of an appeal against sentence by a person convicted, prevent it being used to increase the sentence, is not applicable in the case of an appeal by the Attorney‑General under s.567A, having regard to the words in sub‑section (5) of the last‑mentioned section, “with respect to procedure”, or the words, “with such modifications and adaptations as are necessary”, but we do not find it necessary to decide this.

So that is the only previous pronouncement in Victoria.  However, in a decision in 2000 in the case of WJW 115 A Crim R 217, Justice Brooking in the Victorian Court of Appeal said this at paragraph 17 on page 222 – this was a Crown appeal where an issue arose concerning whether the birth of a child to a rape victim was a matter of significance when the court came to resentence an offender on a Crown appeal. At paragraph 17 five lines down his Honour Justice Brooking said:

This proviso is to be found in the progenitor in this State of s 574, that is, s 9 of the Criminal Appeal Act 1914 (Vic), and in the corresponding English section . . . Section 574 was not discussed before us, it being, as I have said, common ground that we may have regard to the birth of the child if called upon to resentence. Section 567A(5) makes the provisions of s 574 applicable in some

sense to Director’s appeals; I do not attempt to summarise s 567A(5) lest my summary be regarded as disclosing some view on the precise effect of that subsection and in particular on the question what it is that the phrase “with respect to procedure” qualifies.

Section 574 itself is not without difficulty. Paragraphs (b) and (c) refer to “the trial”, as does the proviso itself.

I will not read the rest of that paragraph.  At paragraph 20 his Honour says:

It would be wrong for us to reach any decision, or even express any view, on the effect of s 574 or s 567A(5), or on whether there is any common law principle requiring changed circumstances that are adverse to the offender to be ignored in resentencing, without full argument.

That was the last reference to that.

I might add that in the case of Ly, the New South Wales decision, Justice Meagher commented upon the apparent disharmony between the proviso equivalent to section 574 in New South Wales and the Crown right of appeal section, which is the equivalent to 567A(5A) in Victoria. So the matter has been of concern obviously to Courts of Appeal and Courts of Criminal Appeal around Australia. The matter has not really been the subject of any detailed analysis in support of the appealed decision in this case. For the reasons that we specify in our written outline of submissions, we say that the decision of the Court of Appeal in this case is attended with error. The reasoning process, we say for the reasons that are outlined, is not appropriate in the circumstances of the case and, finally, that the provision being a penal provision ought to be strictly interpreted and where there is any ambiguity, that ambiguity should be resolved in favour of the prisoner. If the Court pleases.

GLEESON CJ:   We do not need to hear you, Mr Horgan.

We are of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave in this matter, and the application is refused.

We are going to adjourn for a short time to reconstitute.

AT 10.27 AM THE MATTER WAS CONCLUDED