Cheng, Cheng & Chan v The Queen

[1999] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 1999

B e t w e e n -

YU SHING CHENG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A9 of 1999

B e t w e e n -

GANG CHENG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A25 of 1999

B e t w e e n -

BACH AN CHAN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 10.07 AM

Copyright in the High Court of Australia

_____________________

MR T.A. GRAY, QC:   May it please the Court, I appear with my learned friend, MR S.F. STRETTON, for the three applicants.  (instructed by George Mancini & Co, Nicholas Vadasz and McGee & Associates)

MR M.F. GRAY, QC:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J:   Thank you, Mr Gray.

HAYNE J:   We will call everybody Mr Gray and we will be quite safe.

MR T.A. GRAY:   May it please the Court, the first issue that arises, we say, is the question of the proper interpretation of section 80 of the Constitution.

GAUDRON J:   How does that arise?

MR T.A. GRAY:   It arises, if the Court pleases, that a point was taken on demurrer that the Customs Act provisions were breached, the constitutional guarantee of section 80.

KIRBY J:   But once the demurrer was overruled, you then pleaded guilty, all three of your clients pleaded guilty.  So is this issue still a live one?

MR T.A. GRAY:   We say it is, if the Court pleases.  The practice in South Australia is to allow that very matter to happen and those matters are dealt with in the judgment of the Court of Appeal.

KIRBY J:   But do you want the matter to go back to trial by jury?  You do not seem to be asking for such orders.

MR T.A. GRAY:   The view that the Court of Criminal Appeal took, and a view that we do not challenge, would be that if we succeeded on this, the plea as to guilty would stand in regard to the offence but the maximum penalty that could apply would be the subsection (e) penalty of two years imprisonment.

GAUDRON J:   How does that relate to section 80?

KIRBY J:   That strikes fundamentally at the whole trial. If in fact you are entitled and it is obligatory to have a trial by jury for a Commonwealth offence, then you have not had that. It is not a matter of bargaining halfway through and getting the benefit without the disadvantage. You have to go back – it would seem to me at the moment and you can persuade me to the other, but you would have to go back to have a complete retrial by a jury, which is what the Constitution mandates in that circumstance.

MR T.A. GRAY:   Before the Court of Criminal Appeal we put the submission that the conviction was bad. 

KIRBY J:   Yes, and you did not win on that.  But if it were a price of your securing special leave, do you have instructions to undergo a new trial and amend your process accordingly?

MR T.A. GRAY:   I do not have specific instructions.

KIRBY J:   Because your clients might well have been convicted of an offence by a jury which – I do not know whether you can take special verdicts in South Australia – would make it clear that this was an offence at the very top of the range, life imprisonment.  Why should you get away with a low penalty?

MR T.A. GRAY:   Our complaint is that we say the graduated or increased penalty steps are for trial by jury.  That was our point on the demurrer.

KIRBY J:   But you do not seem to want to have the trial by jury now as the graduated steps. You want to have that all determined by judges, which is what the Constitution does not permit, according to your argument.

MR T.A. GRAY:   The submission we put is that because the matters that go to graduation of penalty are essential elements that lead to criminal penalty, that they therefore should form part of a trial by jury.

HAYNE J:   Therefore the indictment filed in this matter was insufficient.

MR T.A. GRAY:   Yes.

HAYNE J:   And the indictment, therefore, should be set aside and a fresh indictment filed over to which your clients would have to plead as they chose, and if they chose to plead not guilty, they go to trial by jury.  That is not the orders you are seeking, it seems to me.

MR T.A. GRAY:   Before the Court of Criminal Appeal, the order we sought was that the convictions be set aside, which would lead to that ultimate conclusion.  The Court of Criminal Appeal took the view that that was not the position, that ‑ ‑ ‑ ‑ ‑ ‑

KIRBY J:   We realise that and you are not appealing that part of it and that is the problem I have with the whole question of whether this is an appropriate vehicle to permit a not insignificant question to be determined or reconsidered by the Court in the light of jurisprudence of the Court since Kingswell.

MR T.A. GRAY:   The way this matter has arisen, and because of the view taken by the Court of Criminal Appeal, I do not have instructions today, but at the time before the Court of Criminal Appeal the instructions were to seek the setting aside of the convictions.  The way we ‑ ‑ ‑

HAYNE J:   There were appeals against conviction, that I understand, but the orders you now seek at 124 of the application book are “sentence be set aside”, “applicant be remitted to be dealt with”.  If that is all you are seeking, why should you get leave?

GAUDRON J:   See, it looks as though you are trying to escape any consequences ‑ ‑ ‑

KIRBY J:   Of the logic of your argument.

GAUDRON J:    ‑ ‑ ‑in the event that your argument either succeeds or fails, in a sense.

MR T.A. GRAY:   If the Court pleases, it may appear that way.

KIRBY J:   It is not like you to try that sort of argument on us, Mr Gray.

HAYNE J:   Counsel are paid to have the penny and the bun, are they not, Mr Gray?

MR T.A. GRAY:   Can I put the matter this way, if the Court pleases, that before the Court of Criminal Appeal the applicants wished to seek that the conviction set aside, and that would lead to a retrial, according to whatever was the appropriate course.  The Court of Criminal Appeal took the view that the appeals against conviction were misconceived because, on any view, there remained an offence in regard to the minimum penalty.  My clients then wished to challenge the question of trial by jury in regard to the aggravated circumstances, the graduated offence.

KIRBY J:   But the proper way to challenge it would be to challenge the order which overruled the demurrer and to, as it were, seek to agitate that question in the court.  Justice Hayne has analysed it absolutely accurately, in my respectful opinion.  If that order was wrong and the demurrer ought to have been upheld, then the Crown gets another chance and you are trying to deprive the Crown of that chance.

MR T.A. GRAY:   With respect, I would understand – I would need some time to get instructions – but I understand that my instructions will remain as in the Court of Criminal Appeal ‑ ‑ ‑

KIRBY J:   But that is not the application that is before us.  Is not the proper course for us to do is to dismiss this as a not appropriate vehicle.  If you bring a subsequent application, that is up to you.  Or could you get instructions to make applications for amendment by later in the day?

MR T.A. GRAY:   I anticipate I might be able to, if the Court pleases, but my clients are all in custody, have been in custody for some time, and I just need to ‑ ‑ ‑

HAYNE J:   You know where they are.

MR T.A. GRAY:   Yes, we know where they are, if the Court pleases.  I would anticipate that we could get some instructions quite speedily.

GAUDRON J:   Mr Gray, we could stand this matter down in the list to take its place immediately after Webster, unless we have to interpose the case of Chen.

MR T.A. GRAY:   I would be greatly indebted to the Court.

GAUDRON J:   Would you object to that, Mr Gray?

MR M.F. GRAY:   No, your Honour.

KIRBY J:   This is not, of course, indicating any even preliminary view that it is a matter for special leave on that, because Kingswell stands against it.  But this one is not a proper vehicle as presently framed, in my respectful opinion.

MR T.A. GRAY:   May it please the Court.

AT 10.15 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.36 PM :

GAUDRON J:   Yes, Mr Gray.

MR T.A. GRAY:   May it please the Court, at page 107 is Yu Cheng’s application for special leave and at 109 the proposed draft notice of appeal.  We would seek to amend both documents in identical terms by adding a ground 1A, “The trial judge and the Full Court erred in overruling the demurrer.”  And by, under “Orders sought”, paragraph 5, amending that to

read as follows:  “That the appeal be allowed,” - then insert the words, “the conviction be set aside,” “the judgement of the Full Court be set aside, the sentence be set aside and the matter then to be dealt with in accordance with the reasons and order of the High Court.” 

GAUDRON J:   We will find out from the other Mr Gray.  Do you object to that amendment?

MR M.F. GRAY:   I do not object to it, but I am not to be taken as consenting to the matter being amended in that way.  Can I also say that in terms of a consideration of that matter, it still leaves the issues very much up in the air as to what the appeal might be about, given that the demurrer procedure was done in an unsatisfactory way.  What was sought by the demurrer was to quash section 233B whereas, in fact, it seems to me that questions have to be directed towards the invalidity of section 235(2)(c) and (d).

HAYNE J:   Leading possibly, if those arguments were accepted and Kingswell reopened and overruled, to the quashing of the indictment, it would seem to me.

MR M.F. GRAY:   That would lead to the quashing of the indictment, yes.

KIRBY J:   I did not take your opponent to be trying to take a tricky point on the matter.  I think in the light of what the Court said earlier, it would be very clear that if the process were amended and the matter were sent back, then it would be open to the Crown to argue that it would present the accused on a different indictment.  I see that Mr Gray acknowledges that. That would certainly be the price, in my view, of any grant of special leave.

MR M.F. GRAY:   Yes, and as long as that is made clear, of course, I cannot say anything further with respect to that.

KIRBY J:   What does that other section say?  I know 233B, but I am not ‑ ‑ ‑

MR M.F. GRAY:   Section 233B constitutes the offence provision of knowingly being concerned in the importation.

KIRBY J:   Yes, I am familiar with that section, it is a common section.  What is the other section?

MR M.F. GRAY:   Section 235 sets out what is described as the graduated sentencing regime which provides that where the circumstance is a commercial quantity, life imprisonment, and relevant fines and if it is a trafficable quantity plus a conviction.

KIRBY J:   I am familiar with the section now.  Would it be available to the applicants to commence proceedings in the original jurisdiction of this Court, seeking an order?  I mean there would be the question, having regard to how far the matter has progressed, as to whether discretionary relief would be given, but would it not have always been open to them to have sought in the original jurisdiction of the Court a declaration relating to the invalidity of sections 233B and 235(2) of the Customs Act?

HAYNE J:   It might have left them facing an indictment in charge of a jury and a jury having to pass upon it.  That might have been a tad awkward for them.

KIRBY J:   Yes.

MR M.F. GRAY:   Yes, I think that has to be the ‑ ‑ ‑

KIRBY J:   There would have been a quick way up, if it had all been thought through earlier.

MR M.F. GRAY:   I think if it had been thought through earlier perhaps the most appropriate procedure would have been to appeal the ruling on the demurrer and then to take it from there.  What has complicated this matter immensely is, of course, the plea.

HAYNE J:   But the plea of guilty – there is a deal of authority suggesting that the plea of guilty, if entered on a wrong understanding of the law, does not stand in the way of appellate review:  Snow’s Case.

MR M.F. GRAY:   Oh yes.  And that was considered by the Court of Criminal Appeal in this matter.

HAYNE J:   Anyway, no matter.

MR M.F. GRAY:   My concern is, in one sense, if this Court thought that this was an appropriate case for leave, to ensure that ‑ ‑ ‑

GAUDRON J:   Let me interrupt you here and now.  We are presently not minded to grant leave as such but to refer the application to a Full Bench to consider on the basis of whether Kingswell should be revisited.  So we have not, of course, heard the other Mr Gray to finality, but we would not be minded to do anything other than refer the application to a Full Bench at this stage.  But we are prepared to hear you as to why we should, instead of taking that course, should dismiss it.  But you need not concern yourself with whether we should grant special leave.  We have interrupted the other Mr Gray.  I presume you would not want to dissent from that.

MR T.A. GRAY:   No, if the Court pleases.

KIRBY J:   But would you wish to put your – I mean, it is desirable, if the matter is going to be referred to the Full Court, that you should put your pleading in the most appropriate order that is possible to leave us with and that, it is suggested, will require some addition of reference to the other section of the Customs Act.

MR T.A. GRAY:   If the Court pleases, we would intend to do that and we would intend to discuss with my learned friend to make sure that both parties’ interests will protect that process.

KIRBY J:   So that the issue is tendered cleanly to a Full Bench, if the Court refers the matter to the Full Court.

MR T.A. GRAY:   Your Honour, my instructions will permit me to undertake to do that to the Court and in the process to indicate that I would confer fully with my friend about the terms of the proposed amendment.

HAYNE J:   And just while you are on your feet, Mr Gray, it seemed to me at least at first blush that the orders you seek, if this matter were to go in to a Full Court, might need some further consideration, in particular to consider whether there should be some order quashing the indictment as the relief that is ultimately sought.  But there is the logically prior question, do we refer into a Full Court?

MR T.A. GRAY:   I am grateful for your Honour raising that.  I might say the matter at trial, where I was not involved, there is quite a long history to it, and I am sure that can be – the procedure that was followed was ultimately by consent and with the approval of the judge dispensing with rules.  But we are more than happy to follow the course the Court has suggested and to address the question of putting the documentation in a form that will be helpful to the Court.

KIRBY J:   Would you be advancing an argument that because the current structure of the Customs Act does not, as it were, break down the provisions in a way which you contend section 80 of the Constitution requires, that therefore there was no offence known to the Commonwealth law that is accurately stated in accordance with the Constitution to which your client could be put to trial?

MR T.A. GRAY:   My present instructions are – and as was put to the Court of Criminal Appeal – to advance that argument.  We do so in this sense only, that Justice Deane in the Kingswell Case, although indicating the order he would make was of a certain type, indicated that there had been

no suggestion in argument to the contrary and although Justice Brennan expressed a view about the matter, it does appear to have been expressed in a circumstance where the matter was not argued.  We do see an argument that there cannot be effectively a severance, in which case the whole lot would fall.  We would wish to reserve the position to put that argument.

GAUDRON J:   It would seem to depend, ultimately, on severability, would it not?

MR T.A. GRAY:   Yes, it would.

HAYNE J:   And all of that would be articulated, presumably, in the 78Bs that would need to be given.

MR T.A. GRAY:   Yes.

GAUDRON J:   Including, if the special leave application is referred to a Full Bench, for that occasion.

MR T.A. GRAY:   Yes, we would accept that, if the Court pleases, and will wish to spell that out.

HAYNE J:   The exact extent of the alleged invalidity.

MR T.A. GRAY:   If the Court pleases.

KIRBY J:   We would not wish to inconvenience you again as we did earlier this week, Mr Gray.

MR T.A. GRAY:   I would hope not to inconvenience the Court again, if your Honour pleases.

GAUDRON J:   Mr Gray, we have not given you natural justice yet.

HAYNE J:   If you would be good enough to stand up so that we can ‑ ‑ ‑

KIRBY J:   We do not always promise that on special leave days.

MR M.F. GRAY:   That is true.  I am delighted to be accorded that.  No, I do not think there is anything I can say with respect to that.  Our contention, of course, is that Kingswell was correctly decided but it is a matter really for your Honours to consider whether this is a suitable vehicle to re-agitate Kingswell’s principles if your Honours are of the view that they should be so ‑ ‑ ‑

GAUDRON J:   As I said, that would be for a Full Court to decide.

MR M.F. GRAY:   So I really cannot say anything about your Honours referring the matter to the Full Court.

GAUDRON J:   Thank you, Mr Gray.

The order will be that the application is referred to the Full Court and the parties, of course, will take note of the discussion that has been had thus far and make sure the papers and the notices are in order.

HAYNE J:   Is it a day case or over a day case, assuming there is intervention by the Commonwealth but probably  ‑ ‑ ‑

MR T.A. GRAY:   We would think there is a possibility that it would extend beyond a day, if the Court pleases.  But we would hope to contain it to a day.

MR M.F. GRAY:   I do not think I can comment, your Honours.

GAUDRON J:   Thank you.  We will note that.

The Court will now adjourn until 2 pm for the matter of Chen.

AT 12.49 PM THE MATTER WAS CONCLUDED