Calcutt v The Queen [2012] HCATrans 221

[2012] HCATrans 221

[2012] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S118 of 2012

B e t w e e n -

RYAN ASHLEY CALCUTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 SEPTEMBER 2012, AT 2.23 PM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Matouk Joyner Solicitors)

MR L.A. BABB, SC:   I appear with my learned friend, MR B.C. DEAN, your Honours.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes.  Mr Reynolds.

MR REYNOLDS:   Your Honours, before I commence, there are two matters.  First of all, the application is out of time and I need a time extension which I gather is not opposed.

GUMMOW J:   Is that true?

MR BABB:   That is correct, your Honour.

GUMMOW J:   You have that extension.

MR REYNOLDS:   Thank you, your Honour.  Secondly, we have a small bundle of materials ‑ ‑ ‑

GUMMOW J:   We are going to read them on the spot, are we?  Why are we being asked to read them on the spot?

MR REYNOLDS:   The only thing I think I am taking your Honours to is the relevant section which is not anywhere in the application book, I do not think.

GUMMOW J:   Perhaps you had better fish them out; your junior had better fish them out.  That looks a bit easier to handle.

MR REYNOLDS: Your Honours, the issue raised by this application is the correct interpretation of section 33(2) of the Crimes (Sentencing Procedure) Act 1999. The text of that is the document I just handed to the Court. The words that are used there are that the court may take a further offence into account in dealing “with the offender for the principal offence”. This deals with a situation where someone is charged with one offence, which is called the principal offence, and the offender in what is known as a form 1 procedure admits further offences, which is the further offence or offences, and then the court is asked to take that into account in dealing with the issue of sentence. The question of construction that arises under this section is how is that further offence with which the offender is not charged to be taken into account? What are the relevant principles?

BELL J:   That was the subject of a guideline judgment, was it not?

MR REYNOLDS:   Quite so.

BELL J:   Is it suggested that the guideline judgment contains some error or that it was not applied as it should have been?

MR REYNOLDS:   No.  What is suggested is that there have arisen two different interpretations of that guideline judgment, in particular about eight lines of it, which I can take your Honours to.

BELL J:   Just before you do that, when you say “two different interpretations”, are you referring to the interpretation favoured in this case by Justice Adams, which accords with his Honour’s statements on the same topic in another decision, as distinct from two different interpretations of differently constituted courts of criminal appeal?

MR REYNOLDS:   I think that is a fair summary, your Honour, yes.

BELL J:   The point itself was not raised, as it were, below.  I think Justice Whealy discussed the point of difference, but it was not squarely raised.

MR REYNOLDS:   It was not argued, but as your Honour, with respect, correctly says, certainly Justice Adams deals with it in the judgment in detail and Justice Whealy himself discusses it and there have been these other cases that your Honour has mention.  The fault lines, if I can put it that way, are fairly clearly drawn between these two views.

This is an issue which I feel bound to disclose is going to be dealt with in another Court of Criminal Appeal case in which my learned junior is appearing for a gentleman named Mr Abbas.  That will be given a date on Thursday.  It may be, I gather, that the matter is going to be raised very squarely for argument and there will be an application that five judges reconsider this fault line between these two lines of authority, but my application is first of all for special leave to appeal and in the alternative that the hearing of this special leave application be adjourned until after Abbas has been heard and determined.

GUMMOW J:   What do you say about that, Mr Babb, as to the adjournment?

MR BABB:   As to the adjournment, I did not realise that my learned friend had proposed to argue about special leave and then in the alternative seek an adjournment.  Shortly before court he indicated to me that he would seek an adjournment and I said before court that I would not oppose it and leave it

as a matter for the Court, but if the matter is going to be argued as to special leave then I would oppose any adjournment.

GUMMOW J:   I am sorry; I do not quite follow that.  Do you oppose an adjournment of this special leave application to be restored to the list after the Court of Criminal Appeal has decided the Abbas Case?

MR BABB:   It is a matter for the Court.  I do not wish to be heard.

GUMMOW J:   What we propose is that the special leave application stand out of the list to be restored on 14 days notice, that being done with a view to the matter being looked at again after this Court of Criminal Appeal decision in this further case that Mr Reynolds mentioned.  Each side, in respect of this application, can have liberty to restore on seven days written notice if there is any dragging of feet or whatever.

MR REYNOLDS:   May it please the Court.

MR BABB:   If the Court pleases.

GUMMOW J:   Does that seem appropriate?

MR REYNOLDS:   Yes, thank you, your Honour.

AT 2.30 PM THE MATTER WAS CONCLUDED