Coal and Allied Operations v Full Bench of AIRC & Ors
[2000] HCATrans 147
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
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 APRIL 2000, AT 10.17 AM
Copyright in the High Court of Australia
_____________________
MR T.A. GRAY, QC: May it please the Court, I appear for the each of the applicants with my learned friends, MR G.J.S. MANCINI, MR S.F. STRETTON and MR S.J. DOYLE,. (instructed by George Mancini & Co and McGee & Associates)
MR M.F. GRAY, QC: May it please your Honour, I appear with my learned friend, MS F. PROPSTING, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friend, MS M. SLOSS, for the Attorney-General intervening. (instructed by the Australian Government Solicitor)
GLEESON CJ: Yes, Mr Gray.
MR T.A. GRAY: May it please the Court, the indictment laid in this matter appears at pages 1 and 2 of the application book. I say “indictment”. It is termed “information” but the practice in South Australia is for all matters to be laid by information and all matters in the nature of indictment are laid by information. That matter was touched on by this Court in Byrnes and Hopwood when the particular matter was addressed.
KIRBY J: Is there a definitional provision that deems an information to be an indictment?
MR T.A. GRAY: Not in those precise terms but I will obtain a reference to the section and have the Court informed of that a little later.
KIRBY J: Because it is an important part of your argument, as I understand it, that this was a prosecution on indictment.
MR T.A. GRAY: Yes, indeed, and it was certainly treated relevantly as such. If the Court pleases, this issue about indictment, information or presentment was discussed by, for example, Justice Deane in Kingswell, by Justice Dixon in Lowenstein, making the point that the actual label does not matter in terms of the form of indictment. What is presented here does fit the traditional concept of indictment under the common law.
KIRBY J: Why is South Australia different in this regard? Is there some history as to why they use this word “information”?
MR T.A. GRAY: If the Court pleases, various jurisdictions use words such as “information” or “presentment”. Others use the word “indictment” and they refer to the same matter, that is the formal charging by a public officer in regard to a serious offence where serious penalties are involved.
KIRBY J: One would think that the Constitution addresses the substance and not the nomenclature.
MR T.A. GRAY: Indeed. If the Court pleases, in the indictment at page 1 the Court will see two counts. In each instance there is a statement of offence and then particulars of the offence. The statement of the offence in regard to count 1 picks up and draws on the precise language of section 233B(1)(d) of the Customs Act. The particulars would appear to pick up matters from section 235 dealing with the question of aggravation in regard to penalty, in particular, picking up that part of section 235 which deals with “commercial quantity”.
The second count relates to a charge of possession that in the events result in a nolle being entered. The Court would note that the relevant quantity is changed in the importation count. It is 9.35 kilos or “9350 grams”. In the possession count it is “25g”. The reason for the difference is that before the pedestals containing the heroin were collected by the applicants, the authorities had removed - had detected the importation of the drug, had removed all of it and had replaced a small portion. So, at the time that possession was taken of the pedestals in which the drug was contained, by that time, the weight had changed and hence the reason for the different expression in the counts.
KIRBY J: What is a pedestal? Can you explain that?
MR T.A. GRAY: Yes, there were five pedestals, or columns, which were being imported within which there was the drug concealed. Pre being sent they had been opened and the material placed inside and they have been closed up carefully. When the drugs came in, a sniffer dog detected the appearance of a drug. The pedestals or columns were examined and fine cracks were shown which allowed then the authorities to further explore the matter, open them and find the heroin concealed. It was then removed, replaced in part with a sugar substance as well, but ultimately approximately 25 grams were replaced. So as far as possession was concerned, when the pedestals were collected, only a trafficable quantity was within them rather than a commercial quantity. That has some relevance in regard to the issues about intent.
If the Court pleases, the history of the matter below was that right from the outset a point was taken by way of demurrer and then by way of, under the rules, an application to quash the indictment on the basis that section 233B was unconstitutional. The argument that was put was essentially put in writing and is in the application book commencing at page 12 and continuing through to page 19. The argument attacked section 233B(1)(d), but when one goes to the content of the argument, it attacks it by first attacking section 235 and, in effect, putting the minority position from Kingswell and saying that in the light of subsequent developments as to the approach of the interpretation of the Constitution, the matter of Kingswell cannot stand against those later cases.
Justice Debelle heard the demurrer and the application to quash and rejected it. His reasons appear at pages 58 to 60 of the application book. Essentially his Honour took the view that despite the shift in regard to the approach of the interpretation of the Constitution identified in Ha’s case – this is page 60 of the application book – despite that, it could not be said that Kingswell did not bind him and, as a result, the demurrer and the application to quash the indictment was overruled.
As a consequence, the applicants then said in accordance with Kingswell, on the facts they admitted, they were bound to plead guilty to the count 1. They took issue with the matter of aggravation. Now, if the Court pleases, each of the applicants, in regard to that aggravation, had a slightly different position. Mr Yu Shing Cheng’s position was ‑ ‑ ‑
KIRBY J: Could I just interrupt to ask, because it worried me on the earlier applications before Justices Gaudron and Hayne and myself, and I notice it has been picked up at the end of the Commonwealth’s submission, what follows from the plea of guilty? I mean, is the issue, and I am not sure what orders you are finally seeking if special leave were granted and the appeal upheld, but as your client has pleaded guilty to the offence, why is it open to challenge the basis on which the offence was framed? Is it still a matter of practicality, given the plea of guilty?
MR T.A. GRAY: No, with respect, the plea of guilty was, as it were, under sufferance to the ruling on the demurrer. The primary position of each of the applicants was section 233B(1)(d) was unconstitutional and bad.
KIRBY J: But could you not have asked the court to postpone the taking of the plea in order to test this proposition in this Court?
MR T.A. GRAY: That course could have been taken, it was not, but, right from the outset the applicants and each of them maintained that the section was unconstitutional and their plea was so conditioned on the demurrer being rejected. When this matter was raised in the intermediate court, the court took the view that it was appropriate to allow the conviction to be challenged, although the conviction was rejected, on the basis that this point was taken by way of demurrer and the plea that followed was conditioned on the rejection of the demurrer. Now, if in fact there was some better procedural way to be followed, it was not, but, it is very plain from the entire transcript that right from the outset this point was being taken to be preserved.
KIRBY J: I realise that, but it is somewhat awkward to be dealing with a constitutional point which, as it were, says that you should not have been put in this spot when, in a sense, at least arguably, you have accepted the spot and pleaded to the charge.
MR T.A. GRAY: We accept the history of what has happened but we say that the acceptance of it was conditioned on the demurrer being rejected because, once the demurrer is rejected, the applicants, in accordance with Kingswell, had no defence to the count.
GLEESON CJ: What are the facts that were admitted by the plea of guilty?
MR T.A. GRAY: We would say that they are, if the Court would go to count 1, the first count, that, for example, Yu Shing Cheng admitted to “BEING KNOWINGLY CONCERNED IN THE IMPORTATION OF A PROHIBITED IMPORT”.
GLEESON CJ: And did he admit the particulars?
MR T.A. GRAY: The matter of the weight was not in issue. What was in issue was his ‑ ‑ ‑
GLEESON CJ: You keep using this expression “in issue”.
MR T.A. GRAY: I am sorry, your Honour.
GLEESON CJ: I am trying to work out what were the facts that were formally admitted by the plea of guilty.
MR T.A. GRAY: In the case of Yu Shing Cheng, he admitted that he was knowingly concerned in the importation of a prohibited import but he disputed any awareness or knowledge that it was other than two small packets of cocaine.
GLEESON CJ: So the plea of guilty did not carry with it an admission that he was knowingly concerned in the importation of 9.35 kilograms?
MR T.A. GRAY: In fact, that was specifically in contention.
KIRBY J: Did you then ask that that fact be tried by a jury?
MR T.A. GRAY: No. What happened there as far as Yu Shing Cheng was concerned was that Justice Debelle, the sentencing judge, accepted his version and we say it was not put in contest by the Crown.
KIRBY J: What, that the amount was not of the order of 9,350 grams but some smaller ‑ ‑ ‑
MR T.A. GRAY: No, that he was not knowingly concerned in the importation of an amount of 9.350 grams. In the case of Gang Cheng, his position was similarly that he believed at all relevant times there was an unidentifiable small parcel of drugs, and the judge accepted that.
In the case of Chan, he said that he believed there was a kilo of cocaine involved, and the judge said that he would not accept that assertion, and the matter went to evidence before the judge. Might I say, if the Court pleases, in accordance with Meaton’s Case and South Australian Full Court authority, the matter plainly should have gone to a jury, not to a judge alone. But if the Court pleases ‑ ‑ ‑
GAUDRON J: That depends, does it not, on the correctness of Kingswell?
MR T.A. GRAY: Indeed.
GAUDRON J: If Kingswell is correct, notwithstanding what was said in that case about it being properly left to the jury, there can be no basis for it being left to the jury. Section 235 indicates quite clearly otherwise, does it not?
MR T.A. GRAY: Yes, save this, if the Court pleases, that in Kingswell the majority took the view that the rule of practice in the Queen v Bright should have application. That rule of practice is that it is a matter of aggravation that it goes to increased penalty if it does not create a new offence, it should be referred to in the indictment and decided by the jury, as a matter of fact.
In Meaton’s case it was suggested that, on a plea of guilty, but a dispute about the matter of aggravation, that that matter should be decided according to the State practice involved. In South Australia, Chief Justice King, speaking for the Full Court with the dissentient, Justice Prior, said that such a matter must go to a jury. And, in fact, it creates the paradox referred to in our reply that Parliament, on the one hand, says this matter is a matter for the sentencing judge, but the ruling practice in Bright’s Case coupled with the practice in South Australia leads to that matter being dealt with by a jury.
GAUDRON J: Now, is there a definition of “the Court” in the Customs Act, because section 235(2)(c) says it is “where the Court is satisfied”?
MR T.A. GRAY: Yes. No, there is no definition. But in Kingswell the entire Court took the view that “Court” in 235 referred to the sentencing judge, as a matter of construction on the section.
GLEESON CJ: Well, not just as a matter of construction because, usually, it is for the sentencing judge to determine the facts relevant to sentence.
MR T.A. GRAY: Yes.
GLEESON CJ: Within the bounds of the jury’s verdict.
MR T.A. GRAY: Yes, indeed. But, in particular, the Court in Kingswell took the view there were other indications in the section itself that led, inevitably, to the conclusion that “Court”, referred to in section 235, referred to the court sentencing, the judge alone. In particular, the wording of subsection (4). So, although the question of aggravation was put in dispute by each of the applicants, the matter was resolved by the sentencing judge by accepting what two of them said. In regard to the third, Chan, the judge said that he would not accept that without there being a testing of it. Sworn evidence was given before his Honour. His Honour rejected Mr Chan’s account.
GLEESON CJ: Now, just in relation to the first two of them, they pleaded guilty and they were sentenced on the factual basis to which they had admitted.
MR T.A. GRAY: Yes, by Justice Debelle.
GLEESON CJ: What is the result you are trying to achieve by way of proceedings?
MR T.A. GRAY: Well, in the intermediate court, the court said that Justice Debelle had erred in that approach and proceeded to sentence them on an alternative basis, without their giving sworn evidence, without there ever being a hearing before a judge or jury.
GLEESON CJ: My question was, what is the result you are seeking to achieve?
MR T.A. GRAY: I am sorry. The primary result we seek to achieve is a declaration that section 233B(1) and 235 are unconstitutional, with a result that the indictment in this case, the conviction be quashed and the indictment would be quashed, and my clients would then face whatever due process the regulatory authorities would bring. Alternatively, the submission is put that if section 235(c) and (d) are bad and can be severed, then there would be a conviction and a sentence under subsection (e), which would lead to a maximum imprisonment of two years.
The other alternative would be that section 235(c) and (d) are unconstitutional. There can be no severance and so the whole of section 233B and 235 fall. They are the three alternatives. In our respectful submission, at one level it would lead to the convictions being quashed, the indictment being set aside and my clients facing whatever other processes might obtain ‑ ‑ ‑
KIRBY J: What, such as a State offence of possession?
MR T.A. GRAY: Yes, or if there was an amendment - retrospectivity. One other possibility would be that this Court would ‑ ‑ ‑
KIRBY J: Clearly whether a criminal offence could be rendered valid retrospectively.
MR T.A. GRAY: No, if 233B was struck down, it would probably lead to…..of State offences, under the State legislation. The other possibility, if the Court pleases, that is open, would be that if the Court accepted our submission that the premises underlying the majority’s view in Kingswell were incorrect, that could lead to a review entirely of the proper approach to the meaning of “Court” in section 235 and 233 and that could lead to the conclusion that there are, in fact, here a series of offences, not one offence. If that conclusion was reached, this conviction be set aside, be quashed, the indictment set aside, it would then leave my clients exposed to what other indictment might be laid under the Commonwealth legislation so construed.
One of the difficulties about the construction of section 233B and 235 in Kingswell is that it was – there was one essential premise that no longer holds good and now a different approach to the interpretation of constitutional guarantees has become manifest. Now, if the Court pleases, in many ways what your Honour Justice Kirby says is correct, that if on the demurrer the matter had been stood down while the challenge was made, it would have presented procedurally as a cleaner vehicle but, in the events that have occurred, each of the applicants did make its position known and each plea was conditioned on the rejection of the demurrer.
In many ways, because of what has occurred, that the facts of this case, we would say, do, in fact, present these applications as in some ways better vehicles because they do throw up some of the problems being alluded to in a theoretical way by Justice Brennan, for example, in Kingswell, they really come to life here where, ultimately for an intermediate court, the question of intent and mens rea has been ruled to be irrelevant.
GLEESON CJ: In their sentencing did the applicants seek and obtain the benefit of a reduction in sentence on account of the plea of guilty?
MR T.A. GRAY: Yes, they did, and if, of course, the convictions are set aside and the indictment set aside they face the matter afresh. One of the conditions - when the special leave came up for debate there was an amendment to ensure that the conviction was challenged. It had been challenged in the intermediate court and the intermediate court said that challenge had to fail and on special leave it was amended to include a challenge to the convictions so that these applicants could not, as it were, have the best of both worlds.
KIRBY J: Well, I suppose you can say that it does not matter that they pleaded guilty because, if your primary argument is correct, there is a fatal constitutional flaw in the statutory provision making the offence and that that flaw was there at the beginning, is there now and renders that offence a nullity and that, therefore, their plea is irrelevant.
MR T.A. GRAY: Indeed, and, if the Court pleases, the other matter is that at the intermediate court level they have been sentenced on the basis of section 235 being constitutional, so that, in fact, their sentence does reflect – when the intermediate court reassessed the sentence the intermediate court did say on the basis that 235 was a valid provision, and we challenge that. So, in both respects, we would say this case does present as a very suitable vehicle to decide the points. What it does do is it puts into stark relief in a real way points being referred to, for example, by Justice Brennan in theory but here is, in fact, the very consequences he was alluding to being worked out, that is a person being exposed to life imprisonment when the question of their intent, according to the intermediate court, is a matter of irrelevance and that was one of the reasons that allowed Justice Brennan to reason that section 80 was being breached.
KIRBY J: Irrelevance, or a matter of fact determined by the judge and not the jury?
MR T.A. GRAY: Well, no, Justice Bleby, speaking for the majority, took the view that the question of intent and knowledge was not a relevant matter at all. He held if it was, then he found there was a requisite intent, but his primary finding is of no relevance of intent or knowledge.
KIRBY J: Intent to import is relevant but intent to import goods of the particular quantity is not relevant. You find the first and then you merely find as a fact the quantity and then the life imprisonment follows from the quantity.
MR T.A. GRAY: Yes. It is commercial quantity that leads to life imprisonment and the court has held knowledge or intent in that regard is not relevant, that is to import a commercial quantity. That is the ruling of the intermediate court, so that the end result of this is that these applicants faced life imprisonment and the question of their intent or knowledge was not relevant, which is the very curious result, indeed, that Justice Brennan spoke of in Kingswell.
Now, if the Court pleases, in our outline we identify two reasons why this Court should entertain a review of Kingswell. The first is that the majority decision in Kingswell was premised and, with respect, the major premise, was that section 80 was but a procedural provision. The majority, that is Chief Justice Gibbs and Justices Wilson and Dawson, at page 276 in Kingswell (1985) 159 CLR specifically so identify that matter. The relevant passage in the joint judgment is at the foot of page 276. It is in the middle of the last paragraph:
Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s. 80 has been given an interpretation which deprives it of much substantial effect –
that is, being defined as a procedural provision –
provides a reason for refusing to import into the section restrictions on the legislative power which it does not express.
Now, first we would say that the second proposition does not follow from the first necessarily, but secondly, what is implicit in that is that at its core the reasoning in the joint judgment turns on the characterisation of section 80 as being, in substance, a procedural provision.
KIRBY J: You say, and this is quite an important aspect of your argument, that the second does not follow from the first, but if the Parliament can permit the Commonwealth or prosecutor to walk straight out of section 80 simply by saying it is not punishable on indictment or it is not triable on indictment, then it is easier to infer that the Parliament can split up the section because, if you can walk straight out of it, it is not so offensive to say that you can split it up and split up the offence.
MR T.A. GRAY: Yes, if the Court pleases, again, if that were the position, it is possible to reason in that way. That is why we said not necessarily so, but in Brown’s Case, for example, where Justice Dawson joined the majority and Chief Justice Gibbs was the minority, Justice Dawson reasoned that it is really quite inappropriate to view the issue of indictment in that way because he speaks of not being aware, ever, of the Commonwealth, as it were, legislating to avoid indictment where one would expect an indictment and spoke of the public purpose involved and how Parliament would be brought to account if it attempted to do so. So, from a public law perspective, Justice Dawson reasoned that there was, effectively, a real block there in any event against the watering down or the avoidance of indictment.
But in this case, if the Court pleases, the point we have made is we do have here an indictment and the question is, what follows from that? The point that we want to make about why it is the premise in Kingswell – the first premise is no longer there is because this Court, in a series of decisions since Kingswell, when it has dealt with a circumstance where there has been an indictment, has spoken of, in that circumstance, this being a constitutional guarantee, a fundamental law and language and reasoning quite inconsistent with the earlier view of it being a procedural section only.
HAYNE J: And upon what words do you fasten in Kingswell to say that the Court, the majority there analyse it as procedural?
MR T.A. GRAY: There are a number of passages but the one we chosen is at the foot of page 276 and it is the words, four lines from the bottom:
The fact that section 80 has been given an interpretation which deprives it of much substantial effect –
Now there ‑ ‑ ‑
HAYNE J: You say there the Court is distinguishing between substance and procedure rather than using the word “substantial” simply as a quantitative description?
MR T.A. GRAY: Yes we do. It continues over the page:
It has been held that section 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily.
And then, after the reference to the cases, in particular cases that speak of it being a procedural device, they say:
To understand section 80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose;
HAYNE J: Well, what is this distinction between substance and procedure that you say is here embraced?
MR T.A. GRAY: Well, can I give the Court an example, and one that has been given before, is that if Parliament were to legislate in regard to the crime of murder, that the crime of murder is made out by the act of killing and then leaving it to the judge on sentencing to determine mens rea. Now that would be an example if that was done, which we would say would be a procedural step in redefining the offence that would effectively remove the constitutional right to trial by jury, given that it relates to an indictment.
GLEESON CJ: That is an interesting example. In some jurisdictions in Australia there is a defence of diminished responsibility, which reduces murder to manslaughter and which is determined by a jury. In other jurisdictions, the question of whether or not the offender is suffering from a mental condition which in some places would be called diminished responsibility is a matter to be determined by the sentencing judge on sentence.
MR T.A. GRAY: Yes. Well, if the Court pleases ‑ ‑ ‑
GLEESON CJ: You say this constitutional guarantee produces the consequence that the Commonwealth Parliament does not have that choice.
MR T.A. GRAY: Yes, we would say that, if the Court pleases. For example, this Court in ‑ ‑ ‑
GAUDRON J: Is that necessarily so? If it is a matter simply to be taken into account by way of discretion on sentence, and I do not understand - that is one thing, and does not direct a particular result, but if you have got distinctly different acts, for example, attached to one offence or attached to one substantive provision, then the question really is, what is the meaning of the word “offence” in section 80 of the Constitution, and that is what you have to grapple with, do you not?
MR T.A. GRAY: Yes it is. Perhaps I was too quick to give your Honour the Chief Justice, that it does not necessarily follow, but could I, on the hypothesis, it does follow, and could I just answer the Chief Justice, we would say that is no different, for example, than the case of Cheatle, where this Court said that the South Australian legislation in regard to a Commonwealth offence would offend the principle of unanimity, the common law of jury principle unanimity, but it did not suggest that that was not an appropriate matter for State Parliament to legislate about and ‑ ‑ ‑
GLEESON CJ: Is it your submission, going back to the bottom of page 276 and 277, that section 80 means that the trial of all serious offences shall be by jury?
MR T.A. GRAY: Yes it is.
GLEESON CJ: And what do you mean by “serious offence”?
MR T.A. GRAY: Well we would answer that slightly elliptically by saying we would respectfully adopt the analysis of Justice Deane in that respect in Kingswell in the minority when he gives a definition and, in particular, for example, the American approach where there has been a jurisprudence developed to distinguish between petty offences and serious offences and I think Justice Kirby in Colina’s Case we also respectfully adopt, that the various techniques for defining what a serious offence might be ‑ ‑ ‑
GUMMOW J: Well, the Commonwealth has done it, has it not, in section 4G of the Crimes Act? I know it is now 4G, but it was some other number before; it has been there for a long while. Is that not the starting point for construing the Customs Act section? Section 4G says:
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
MR T.A. GRAY: Yes, indeed.
KIRBY J: But is it your submission that the Parliament cannot, by simply playing with that section, remove the constitutional guarantee, that it cannot, as it were, say, “We will only say it’s indictable if it’s punishable by life imprisonment”?
MR T.A. GRAY: Our primary submission is that ‑ ‑ ‑
KIRBY J: I think your primary submission is that you do not have to grapple with that in this case because it was on indictment, as you contend.
MR T.A. GRAY: Yes. We do accept that when one comes to deal with the question of this issue of Kingswell that one must go into the analysis about what “indictment” means. In our respectful submission, that is a matter for the Constitution and it is a matter for the courts to define “indictment” against the common law precepts of what that contained and the events of the day and it is not a matter of Parliament, as it were, subdividing that in another Act. In this particular case we do obviously accept that that ‑ ‑ ‑
GUMMOW J: No, but would you accept that “punishable by imprisonment for a period exceeding 12 months” satisfied the constitutional criteria? That is why I asked the question.
MR T.A. GRAY: Yes, we do.
GUMMOW J: Rather than this “serious offences” notion. I do not know where that comes from, apart from the United States, but it comes from the United States because they did not write it out the same way as it is written out in section 80.
MR T.A. GRAY: Put more correctly, we would put the submission this way, that we are speaking of offences that expose a person to penalty and in that sense Justice Deane speaks of 12 months imprisonment. In that sense the United States court spoke of six months. But it is not a matter of the Parliament being able to walk around section 80 by simply legislating “There will be no offences tried by indictment”.
GUMMOW J: But they have not done that, they have never done that.
MR T.A. GRAY: No, but ‑ ‑ ‑
GUMMOW J: There is no sign they are about to either.
MR T.A. GRAY: With respect, really the point that Justice Dawson was making when forming part of the majority in Brown’s Case when his interpretation ‑ ‑ ‑
GUMMOW J: This problem is a more sophisticated problem.
MR T.A. GRAY: The other way in which we say that Parliament cannot walk around section 80 is by taking out what are traditionally matters and offences determined by a jury and removing those from the province of the jury determination, which is the example I used with redefining the elements of murder.
GUMMOW J: The question is what the words “any offence” means in section 80. What are the integers of that notion of “offence”?
MR T.A. GRAY: If the Court pleases, when we come at this particular analysis with the very full reasoning of Justice Brennan and Justice Deane, we cannot advance that essential reasoning and we respectfully adopt it. We would be taking up this Court’s time unnecessarily to repeat that line of reasoning. We respectfully adopt that and say that what has changed with regard to Kingswell is the premise underlying the majority, that is that section 80 is but a procedure provision, given an indictment is no longer good law.
GAUDRON J: But in Kingswell did the Court give any real consideration to what was involved in the notion of an “offence”, as that word is used in the Constitution, as distinct from the common law?
MR T.A. GRAY: No, not explicitly.
GUMMOW J: Well, that was my point. That is why I am seeking help.
GAUDRON J: Is that not where your argument must begin and end in a sense? Must it not depend entirely on what “offence” means in section 80? Does it mean whatever the Parliament describes to be the offence, or does it mean something else?
MR T.A. GRAY: If the Court pleases, the matter was in this sense touched on in Kingswell at page 292 by Justice Brennan, which is really the answer we give. He says at the top of the page:
But the argument must turn on the power of the Parliament and that depends upon the meaning of the term “offence” in s. 80 of the Constitution.
Then, having quoted the section:
An “offence against any law of the Commonwealth” is, of course, an indictable criminal offence…..Section 80 is expressed as a constitutional guarantee…..But the term “offence” is not left to be defined by Parliament –
He then picks up and adopts the definition of Lord Diplock in Courtie’s Case. Justice Deane at page 321 speaks in similar terms.
GLEESON CJ: I notice that in your argument you had said you adopt the approach of Justice Brennan and Justice Deane. They are substantially different, are they not?
MR T.A. GRAY: At some points, yes.
GLEESON CJ: Does Justice Brennan doubt the correctness of the line of authority that treated section 80 in the manner that you have described?
MR T.A. GRAY: Yes, we would say that he does in the sense of plainly characterising section 80 as a fundamental matter ‑ ‑ ‑
GLEESON CJ: Where do we find him doubting the correctness of any of the earlier decisions on that subject?
MR T.A. GRAY: Yes, he does not address that line of authority explicitly at all. His reasoning is that he treats this as being a question of restriction on power. He goes straight to that point and reasons from there. But his reasoning is that he is speaking of a fundamental matter, a fundamental law, of a guarantee ‑ ‑ ‑
GUMMOW J: It is all fundamental because it is in the Constitution.
MR T.A. GRAY: Yes, indeed, and in contradistinction to a procedural device, a procedural matter.
GUMMOW J: Is there any discussion by the majority from the starting point taken by Justice Brennan? The passage you read to us at 292 is his Honour’s starting point. Now, do they begin from a different starting point?
MR T.A. GRAY: No, the majority do not deal with that. The majority pick up on this being ‑ ‑ ‑
GAUDRON J: There is some reference at 276 which says because Parliament can decide what is on indictment and what is not, there is really no point in treating it as of having any wider - offence having any wider meaning than what Parliament determines to be the elements of it”.
MR T.A. GRAY: Once the majority in Kingswell had approached the matter that, we say, section 80 was not of substantial effect, then they simply went into the question of the meaning of word “offence”, noted the wisdom of Lord Diplock’s remarks but found this particular statute that they must yield to the intention in the statute.
GLEESON CJ: I may be wrong but I thought the essence of the reasoning of Justice Brennan was to be found in the middle of page 292. I must admit I also thought it was rather different from the essence of the reasoning of Justice Deane.
MR T.A. GRAY: We do accept there is some differences but to this extent there are some similarities. They both draw on Lord Diplock, they both agree he is right and they both agree that “offence” in section 80 picks up that common law definition that Lord Diplock spoke of. In that sense, they are at one.
HAYNE J: But the majority at 276 say that the word “offence” has no fixed technical meaning in the law.
MR T.A. GRAY: Yes, indeed, because they have entered the approach on the basis that section 80 is purely procedural, no substantive effect and ‑ ‑ ‑
HAYNE J: Leave aside the preamble about substance/procedure if you would, for the moment. Their Honours, in the majority, refer to Courtie, reach the conclusion that “offence” has no technical meaning and go forward from there, whereas Justice Brennan formed the view that “offence” has a meaning, a technical meaning in the law, given by Lord Diplock. That is the conflict and it is that conflict which is the point of debate in this matter, is it not?
MR T.A. GRAY: Yes, it is.
HAYNE J: Leave aside substance/procedure which are wonderful tags much used and abused in the law, Mr Gray.
MR T.A. GRAY: Well, if the Court pleases, it is possible to approach this matter on that very specific discrete basis but, equally, if the Court pleases, it has been suggested by a number of commentators that there is this, as it were ‑ ‑ ‑
HAYNE J: But to describe section 80 as a fundamental guarantee either states the blindingly obvious that section 80 is found in the Constitution, or is a statement without content. It tells you nothing of what the guarantee is. That is the area for debate and it is not resolved by resort to slogans.
MR T.A. GRAY: Indeed, with respect, but we do say that when one, as the majority did in Kingswell, approaches the issue on the basis that section 80 is not of substance and then proceeds, one is ‑ ‑ ‑
GAUDRON J: That is not entirely – approach it on the basis, do they not, that because Parliament can avoid the operation of section 80 by declaring offences to be summary or indictable, there is no point in giving the word “offence” any real meaning. Is that not the way they go about it?
MR T.A. GRAY: Yes. We would say that is the essential reason at the foot of 276.
GAUDRON J: It had had no technical meaning before, there is no reason why we should give it any now. The question is: is that an appropriate approach to constitutional interpretation?
MR T.A. GRAY: That leads to the second of the reasons why we say that the decision in Kingswell is appropriate for review. That relates to the approach to interpretation of constitutional guarantees and looking at substance as against form. Because once one does, as this Court has in Cheatle and Brown and Katsuno and more recently in Colina, identified, given an indictment, we are now talking about a constitutional guarantee and not a procedural provision, we then move into the different approach in regard to the interpretation as can be implied by Ha. One looks at what is the substance, not what is the form? The substance of what occurs with the Customs Act is that it removes an element of an offence, traditionally, that is, a matter of fact on which a penalty ‑ ‑ ‑
GAUDRON J: Well, I am not too sure that you can say “traditionally”, can you? What were the provisions before the Customs Act came into being?
MR T.A. GRAY: The word “tradition” is a poor word to use.
GAUDRON J: Yes.
MR T.A. GRAY: The point I was wishing to make, your Honour ‑ ‑ ‑
GAUDRON J: Certainly the various State Poison Acts create different offences by reference to the amount involved – or many of them do. I do not think you can base it on tradition; you have got to base it on some notion of what is implicit in an offence.
MR T.A. GRAY: Yes. By “tradition”, that is what I was rather poorly alluding to. In Courtie’s case, Lord Diplock is making the point that when there is a matter of fact which exposes the accused to penalty, then that is normally – and I use the word “traditionally” – dealt with as an element of the offence.
McHUGH J: Is that right? Take the case of mandatory sentencing: the offence is stealing; another section says a person who has been convicted three times of stealing shall be sentenced to X; is that provision part of the offence of stealing?
MR T.A. GRAY: It may be, but more properly, the elements of the offence of stealing would be the traditional elements. That would be a question ‑ ‑ ‑
McHUGH J: I will ask you another question: what is the offence? Is the offence to be defined as who so ever - being the person who has been convicted on three previous occasions of stealing - steals something, is that the offence, or does the offence remain stealing and the fact that the person has committed three previous offences, a matter of aggravation to be taken into account in sentence?
MR T.A. GRAY: No, we would say, put that way, that the matter of aggravation would form part of the offence.
HAYNE J: Is that dependent upon you dividing the universe into circumstances of the offence and circumstances of the offender?
MR T.A. GRAY: No, with respect, it is a question of recognising that there is a further fact which is exposing the accused to greater penalty.
GLEESON CJ: What about the laws relating to sentencing of habitual criminals?
MR T.A. GRAY: It would be a question of characterisation. But if one is, through a circumstance of aggravation, exposing the accused to a greater penalty, then it would form part of the offence.
HAYNE J: But that means, does it not, that the prior criminal history of the particular offender is being drawn into this debate? It seems to me that if you want to maintain the submission you have to maintain it at the level which distinguishes between something relating to the offending behaviour compared with something that goes to the individual circumstance of the offender so that a statute which says, “For a second offence, the offender shall be punished by up to X” might be good, but, on your submission, a statute which says, “If the offending is associated with circumstances of aggravation, namely A to ZZZ”, that is bad. Thus, the universe is divided between circumstances of the offence and circumstances of the offender, which in turn, let me say to you, carries with it its own peculiar difficulties.
MR T.A. GRAY: Yes. Could I answer your Honour this way, that in this Customs Act one of the circumstances of aggravation does relate to being convicted of a prior offence. So one can look at this example in this very section, 235, and one would more readily reason that if the aggravating circumstance related in some way to the offence, it forming a part of the offence, an element of the offence is a little bit clearer but one would have to look at the rationale behind the reference to a previous offence. For example, is it being inferred that because of that there would be, as it were, relevant knowledge? A history of previous offence, one could infer knowledge relevant to the offence or is it a case simply of a matter relating purely to penalty by repeat offender?
Now, if the Court pleases, that can be a difficult distinction to draw but in the Privy Council decision of Sabapatheev The State (1999) 1 WLR that my learned friend, Mr Martin Gray, has referred to in his reply, they do draw the distinction by saying if it relates to the offence then it forms, as it were, a matter – an element of the offence; if it is distinct from it, then it does not.
CALLINAN J: Mr Gray, what about section 16A(2)(c) of the Crimes Act, the general sentencing principles:
In addition to any other matters, the court must take into account…..
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;
That would expose the offender to a much more serious penalty. Do you say there has to be a trial by jury of those issues?
MR T.A. GRAY: Yes. We think that points up our issue very clearly. We would say if this is said to be part of a course of conduct, yes, it should because we are dealing with a factual element related to the offence through course of conduct that is said to expose the offender to a greater penalty. It would depend whether we are simply speaking about within the range of penalty defined or whether one is speaking about an increased maximum. If one is speaking about, “Well, there is the range. It is defined and these are factors to be brought into account in determining that range.”, that is one thing, but it is a different matter when the matter of aggravation specifically goes to increase the penalty.
GLEESON CJ: When you say “that is one thing”, do you mean that is one thing that is not covered by your section 80 argument?
MR T.A. GRAY: Yes, it is.
GLEESON CJ: It is not covered?
MR T.A. GRAY: No. The argument we have put in this case is that the particular matter of aggravation here does lead to an increase in the otherwise penalty.
GLEESON CJ: So that is a critical distinction, is it, between a circumstance where a matter of aggravation leads to a higher maximum penalty and a circumstance where a matter is merely one of a number of potentially countervailing considerations to be taken into account in the exercise of a sentencing discretion?
MR T.A. GRAY: Yes. We would say in the former case that it makes the case for it being an element of defence much stronger. In the latter case, we would not necessarily exclude the argument entirely but we do treat it as being a different case.
KIRBY J: It is obviously enlivening a constitutional characterisation and it may be that what Justice Hayne suggested gives a clue as to the criterion. You look at the behaviour that is involved in the particular offence as distinct, say, from a want of contrition, a failure to offer amends, matters personal to the offender. In Courts of Criminal Appeal they are commonly talked of as objective or subjective considerations and it is sometimes difficult to classify them but they can be classified.
MR T.A. GRAY: Yes, we do accept that the distinction of fact that Justice Hayne made out has an attraction about it as a dividing line. It is a little difficult though to think through sometimes all the implications of where it leads and the ‑ ‑ ‑
HAYNE J: The knife in the napkin can be found, Mr Gray, in the judgments in Reg v Storey in about 1996 VR somewhere where there is a deal of discussion about the difficulty of distinguishing between circumstances of the offence and circumstances of the offender.
MR T.A. GRAY: Yes, with respect, it is interesting to reflect on the way that the Commonwealth dealt with this in the development of the rule of practice in Reg v Bright where the court recognised that although this was a matter of aggravation that did not become an element of the offence yet simple fairness meant that it should be the subject of the indictment and the jury should decide the matter and that is the rationale of Reg v Bright and it ‑ ‑ ‑
KIRBY J: Fairness is not a very good criterion to decide what the Constitution means when it talks of “offence”. It would seem at least strongly arguable that that has a concept, that it is not simply whatever the Parliament says is the offence, that because it appears in section 80 that it has some content.
MR T.A. GRAY: In our submission in reply, we do put that because of the rule of practice in Reg v Bright, and for example, especially in South Australia because Justice King, speaking for the Court of Appeal, has said that the rule of practice is that there be a jury trial - - -
KIRBY J: What is that case? It is Bright, is it?
MR T.A. GRAY: It is the case of Reg v Hietanen (1989) 51 SASR 510. The passage is at page 514. It might be convenient for the Court also to have at the same time, Meaton v The Queen 160 CLR 359, because one needs to work from that into Hietanen. In Meaton v The Queen, the passage is at page 564 point 8 on the page, and the question about a plea of guilty is raised. At point 8 in the middle of the long paragraph, or towards the end of the long paragraph in the joint judgment:
In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore –
and these are the important words -
if an accused person pleads guilty only to the offence as defined by s.233B –
which as was the case here -
any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.
And it is against that background that one comes to Hietanen’s Case, and at page 514, the relevant passage is in the penultimate paragraph, in the middle of the second last paragraph, after reference to Meaton’s Case:
It is open to an accused person to plead guilty to the charge but to deny any allegation in the charge that a motor vehicle was used or that the bodily harm caused was grievous. If that occurs, the prosecution may, of course, accept the plea in satisfaction of the charge. If it does not do so, issue has been joined as to the existence of the relevant circumstance of aggravation and that issue must be tried by a jury.
Now, Justice Mohr agreed with his Honour, and Justice Prior was not prepared to go so far. And then his Honour Justice King continues:
If the circumstance of aggravation consists of the commission of a prior offence, the procedure in that event referred to in Kingswell v The Queen at 281 would of course be followed.
So the practice in South Australia, according to Hietanen’s Case, is that there must be a jury trial on that issue.
GAUDRON J: I do not see why you transpose that automatically in the face of section 235 of the Customs Act. If “the Court” means the sentencing judge, that is what it means, and State practice will not be picked up pursuant to the Judiciary Act. Is that not right, or have I missed something?
MR T.A. GRAY: Your Honour, that is, what we have described as the paradox that we refer to in our reply, that if one follows through the reasoning in Meaton’s Case where it says, that on a plea there is a dispute about the aggravating matter, then it is to be decided according to the State practice. And the State practice then says there must be a jury trial. We have gone the complete circle. We have Parliament, on the one hand, saying ‑ ‑ ‑
GUMMOW J: But the State practice only gets in because of some federal law that says it gets in. What is that, the Judiciary Act, is it?
MR T.A. GRAY: Yes, section 68(2).
GAUDRON J: Well, I am asking really this: is not the sentence at page 364 of Meaton saying that it, “will fall to be determined in accordance with the practice prevailing in the State concerned”, contrary to what is dictated by section 235, if “the Court” there means the “sentencing judge”.
MR T.A. GRAY: Yes, indeed, we do, respectfully ‑ ‑ ‑
GUMMOW J: And that will override section 68, because it will be a particular provision.
MR T.A. GRAY: Well we, with respect, do see some tension in that analysis in Meaton’s Case. And, of course, with respect, that is picking up on part of the reasoning of the majority in Kingswell, because although they have not gone to consider in detail the question of a guilty plea, they do deal with the application of the Reg v Bright, as it were, ameliorating against the otherwise apparent harshness of the situation. Reg v Bright was brought in to provide, at a pragmatic level, a matter of practice and procedure, some relief against what might be viewed as being inappropriate. And then when one follows it right through, one finds that that does not work very well at all with the interpretation of the section. Justice Brennan in ‑ ‑ ‑
GAUDRON J: And it does not work very well when you do not know what your plea of guilty admits.
CALLINAN J: Mr Gray, what about 16A(2)(e) of the Crimes Act:
any injury, loss or damage resulting from the offence;
That is not a matter personal to the offender. What if there is a dispute about that, as very often there is? That is almost always in practice, whether rightly so or not, dealt with by the sentencing judge.
MR T.A. GRAY: Your Honour, we would respectfully suggest that that is not giving rise to a greater maximum penalty in the sense of the Customs Act. That is simply indicating that within the range of penalty that the sentencing judge can choose from, these are factors that are to be had regard to and there is no suggestion there that that is, in any way, going to increase the maximum penalty. The rationale in Courtie’s Case by Lord Diplock is that it is a factual matter that leads, of itself, to some form of extra penalty.
CALLINAN J: Inexorably leads to it, inevitably leads to it, is it, or something?
MR T.A. GRAY: No, that exposes a person to it.
CALLINAN J: Exposes. A person must be exposed to it by the statute, the statutory provision?
MR T.A. GRAY: Yes, but in the case of the Customs Act, one has this gradation of penalty so that, absent circumstances of aggravation, the penalty is a maximum of two years. Given a trafficable quantity the penalty is 25 years maximum. Given a commercial quantity the penalty is life. Then, in effect, leaving to the judge alone, and taking away from the jury, the factual findings that would lead to, for example, the difference between two years and life imprisonment.
CALLINAN J: The distinction you make between a section such as (d) of 16A(2) and the Customs Act is that the latter requires that there be a maximum penalty of a certain quantum, whereas these paragraphs of the Crimes Act do not.
MR T.A. GRAY: No, we would respectfully adopt that.
GLEESON CJ: Is there some reason why your argument – I would not want to encourage you to oversimplification – but is there some reason why your argument would not simply fasten on the circumstance of the different maximum penalties which, as I understand it, is what the reasoning of Justice Brennan turned upon, which is made clear by the passage from the speech of Lord Diplock in Courtie?
MR T.A. GRAY: The argument can be put in that simple way and perhaps the others are embellishments.
GLEESON CJ: The passage quoted from Courtie (1984) 1 AC appears at page 471 and, read in context with the preceding passage, simply turns upon the circumstance that there is, according to Lord Diplock, a critical difference between a statutory provision that says the maximum available penalty will vary according to a certain state of facts and a provision such as to be found in the Crimes Act that says the sentencing judge in the exercise of sentencing discretion up to the maximum prescribed penalty, whatever it is, will take considerations like this into account.
MR T.A. GRAY: Yes, well even had the section been redrawn in that way, it may still have the substantive effect of removing an element of fact from the jury.
GLEESON CJ: You would not have to redraw the section in that way, would you? The considerations set out in section 16 of the Crimes Act would directly or indirectly pick up the sort of considerations that you find in the Customs Act, would they not?
MR T.A. GRAY: We would say that the key to this is the fact that there are different maximums being incorporated into the section. That is the key to it, and then one can reason from there and embellish that in a variety of ways as one tests that proposition.
GLEESON CJ: Because one of the consequences of fixing a maximum penalty is to take away the sentencing judge’s discretion to that extent.
MR T.A. GRAY: Yes, indeed. Now, if the Court pleases, Justice Brennan, I think it was in Meaton’s Case, took up this issue of the problem of what happens on a guilty plea. It is at page 369 which, in a sense, identifies the precise dilemma faced by the applicants in this case. At 369, it is about the middle of the page about point 4:
The day‑to‑day workings of the criminal court are not assisted by the practice operating in a context where the substantive offence is defined by s. 233B(1) alone. If the indictment charges s. 235 matters in addition to the s 233B(1) offence, what plea can the accused enter if he wishes to plead guilty to the offence and deny the s. 235 matters? At common law or under the Code, the prosecution may refuse to accept a plea of guilty to an offence of less gravity than the offence charged, but how could a plea of guilty to a s. 233B(1) offence shorn of the circumstances of aggravation prescribed by s. 235 be refused? And, if the accused may plead guilty to the s. 233B(1) offence alone, is a jury to be empanelled to determine the s. 235 matters in issue? That would be a novel course.
So his Honour has actually identified the very problem that occurred in this case and raising this matter of real concern and when one goes to the majority view in Meaton’s Case and, with respect, see the rather unsatisfactory way that has been dealt with and the way it has been followed through in South Australia, one can see the real force and effect of the implicit reasoning that Justice Brennan is using and these again are matters that, in part, were foreshadowed in the dissent in Kingswell, but are now being worked through in Meaton’s Case and, we would say, with respect, there are aspects of the majority view in Meaton that are very unsatisfactory and do have an illogicality about them.
Now, if the Court pleases, could I just move for a moment to a decision in Brown (1985-1986) 160 CLR 171. In Brown’s Case the majority of the Court, in circumstances of there being indictment, found that there could be no waiver of the constitutional right and part of the implicit reasoning or part of the reasoning behind that was that the section 80 was both a private and a public law matter, it had both private and public law implications to it, and it was not a matter that could be waived. The minority still, in part, speaking of procedural device, particular to affecting the accused, did allow ‑ ‑ ‑
KIRBY J: Was that essential to the holding in Brown? I mean in Brown, had there been a waiver or not?
MR T.A. GRAY: Yes, there had been an attempted waiver. It had been rejected by Justice White at trial, so the point came up in that way. Brown attempted to waive and Justice White refused that waiver.
GLEESON CJ: Are you in a position to inform us of the position in various Australian jurisdictions as to the circumstances in which an accused person, either with or without the consent of the prosecution, can elect to have a trial on indictment without a jury? I want to exclude from that question circumstances in which a person can elect to be dealt with summarily by a magistrate – put that aside.
MR T.A. GRAY: I cannot at the moment, but I will be able to after the adjournment.
GLEESON CJ: Perhaps one of your juniors could give us that information?
MR T.A. GRAY: If the Court pleases. The point that I make about Brown’s Case is that in the judgment of Chief Justice Gibbs, who was in the minority with Justice Wilson, at page 181, he took up this issue of mere procedure. It is the last paragraph on page 181:
There is an additional reason for holding that section 80 does not impose an immutable condition.
And deals with the cases, including Kingswell, and then:
This result, which Professor Sawer has said has rendered section 80 “in practice worthless”, no doubt attributes “a queer intention” to the framers of the Constitution:
And then, in particular, he picks up, over the page, just before the reference to Spratt v Hermes that it:
became “a mere procedural provision”.
But then follows from that in the next paragraph that he is:
unable to accept the submission of the Director of Public Prosecutions ‑ ‑ ‑
GLEESON CJ: Well, it is the last sentence of the earlier paragraph that expresses the point they were making.
MR T.A. GRAY: On page 181, your Honour?
GLEESON CJ: I cannot help thinking that if that was “queer” in 1986, it would appear even more queer now to someone who knows how widespread is the practice in various Australian jurisdictions of accused people electing to be tried on indictment without a jury.
MR T.A. GRAY: Yes. If the Court pleases, Brown’s Case has been treated by academic writers as being an important indication of the recognition by this Court of there being a constitutional guarantee as in contrast to….described as a procedural provision.
GLEESON CJ: It is not just a guarantee; it is an obligation.
MR T.A. GRAY: The point I wish to make is that if that analysis be correct, and we submit that it is, it does follow that the premise underlying the majority approach in Kingswell cannot stand. If the premise cannot stand, then the reason that follows equally cannot for that reason stand.
GLEESON CJ: But let us assume that Brown’s Case is correct. When you take account of the fact that sometimes is left out of account that it is now far from uncommon in various State jurisdictions for people accused of serious crime to elect to be tried on indictment without a jury, either with or without the consent of the prosecution, then that puts perhaps a slightly different perspective on section 80. If we are going to look at constitutional guarantees through modern eyes, we had better be sure we are not looking at them through the eyes of the 1950s.
although one then construes the statute in the light of those if it is not made clear. Now, one asks why one should construe section 80, and construe the word “offence” in such a way as to say that unlike the English Parliament the Australian Parliament is not to have the power to override this common law approach to what is or is not to be included in what goes to the jury.
KIRBY J: Do you really ask that? I mean, the English Parliament is a parliament without the limitations which the Constitution imposes on the Australian Parliament. And to see what the Constitution imposes on the Australian Parliament, you look at the words and you look at their purpose and, therefore, the way English judges approach the power of their Parliament is really quite misleading to the search which we must conduct for the meaning of section 80.
MR BENNETT: Yes, your Honour. But where one has a common law principle which can be, and is from time to time, overridden by Parliament in the English context, why would one assume the contrary in the Australian context? And I will demonstrate in a moment that there were sections prior to 1900 in Australia which contain the sort of aggravation situation and which drew a distinction between one offence, and a number of offences, that one has here.
So there is simply, we would submit, no reason for applying this highly technical meaning of the word “offence”, inserting it into section 80 and then developing from that the conclusion that my learned friend seeks to draw from it.
GUMMOW J: As to the invalidity of these sections.
MR BENNETT: Yes, your Honour. And that is what he sets out to do.
GLEESON CJ: As at the time of the Constitution, what were examples of trials of offences on indictment that might not be by a jury? Perhaps you could look at that overnight.
MR BENNETT: Yes, I am just thinking aloud, your Honour. The contempt, of course, was always in a special category.
GLEESON CJ: Triable summarily.
McHUGH J: They are done by information.
MR BENNETT: There were certainly summary offences. I suppose there were periods in the very early days of the Australian colonies where there were not juries, but that is going back to very early days. I am not sure what the position was in relation to bankruptcy offences at the turn of the century under the State Bankruptcy Acts, but I will have a look at that your Honour and see if I can find - - -
GLEESON CJ: If you would want to look at it through modern eyes, you might find in the early provisions of the Environmental Offences and Penalties Act 1989 of the State of New South Wales, a provision for trial of certain offences by a Supreme Court judge on indictment.
MR BENNETT: Yes, and, of course, as has been pointed out, in at least three States in Australia and one Territory, an accused, when prosecuted on indictment, may elect for a trial by judge alone on the indictment.
GLEESON CJ: Mr Solicitor, we will adjourn now. But, Mr Gray, Justice Kirby wanted to ask you a question.
KIRBY J: It was actually I meant to ask a question of Mr Gray for the respondent, if I may, and I apologise for not having done this before, and it is this: on the pages 14 to 20 of the applicants’ written submissions there is quite a detailed argument, which was passed over quite briefly at the end of the applicants’ oral arguments concerning mens rea and with special reference to the particular applicants. Now, I have looked through your written submissions and I may have missed it in your oral submissions, but I do not see any attention to these questions, which we have to address. Is the respondent going to give the Court assistance on how we should deal with those questions or are you going to content yourself with looking at what one might call the big picture questions in this case? There are also a couple of little miniatures hovering around.
MR M.F. GRAY: There are a number of little miniatures.
KIRBY J: I mean, we do have to address them, because they have been put to us and, speaking for myself, if there is anything the respondent wants to say, well, I will welcome having them, but otherwise I have got to try and work it all out for myself, without assistance.
MR M.F. GRAY: Yes, your Honour, if your Honour would permit, I would address that. The way I framed my argument really related more to the question, was directed more to the Kingswell point rather than this particular point.
KIRBY J: I know you have, but I am saying we have had arguments advanced to us – as I understand it, we are dealing with this as an application for special leave but on the footing that if special leave is granted we deal with the whole appeal.
MR M.F. GRAY: Yes, your Honour.
KIRBY J: Therefore, we have to deal with the mens rea questions and they really are quite detailed and specific and I think the respondent, as the Crown, has to help the Court.
MR M.F. GRAY: Yes, your Honour.
KIRBY J: I simply raise the matter now. It is up to you.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 APRIL 2000
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