Commissioner of the Australian Federal Police v Rosevear

[1992] HCATrans 135

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IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 1991

B e t w e e n -

COMMISSIONER OF THE AUSTRALIAN

FEDERAL POLICE

Applicant

and

GLEN ROSEVEAR

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 MAY 1992, AT 11.30 AM

Copyright in the High Court of Australia

Rosevear 1 7/5/92

MR P.S. HASTINGS:  May it please Your Honours, I appear for

the applicant. (instructed by the Australian

Government Solicitor)

MR C.A. PORTER, QC:  May it please Your Honours, I appear

for the respondent with my learned friend,

MR R.F. LIVINGSTON.	(instructed by Snedden Hall
and Gallop)

MASON CJ: Yes, Mr Hastings.

MR HASTINGS:  Your Honours, since the Federal Court

delivered its judgment in this matter in August of
last year, this Court has delivered a judgment in

the matter of Amoe v Director of Public

Prosecutions (Nauru) which, in my respectful

submission, now provides some guidance which the

Federal Court, with respect, struggled to identify

as to the principles by which an appeal of this
nature should be determined.

Your Honours, I say that because the relevant statutory provisions in both matters are

essentially the same. This matter proceeded under
section 79 of the Complaints (Australian Federal

Police) Act, the provisions of which may be

conveniently found in the appeal book at page 67,

in the judgment of His Honour Mr Justice Beaumont.

Your Honours will note that subsection (1),

which was a pre-existing subsection, provides that:

A person who was a party to a proceeding

before the Disciplinary Tribunal may appeal to

the Court, on a question of law -

and I emphasize those words -

from a decision of the Tribunal in that

proceeding.

And in 1989, subsection (lA) was inserted providing

that:

Where, in pursuance of section 67, 68 or

69, the Disciplinary Tribunal imposes a

penalty on a person in respect of a breach of

discipline (other than a penalty of admonition

or reprimand), the person or the Commissioner

may appeal to the Court from the decision of

the Tribunal on the ground that the penalty is

unduly severe or is inadequate.

And this matter proceeded by virtue of the

Commissioner exercising the right thereby provided

to appeal on the ground that the decision was

Rosevear 2 7/5/92

inadequate. What is to be observed at the outset

is that there is no provision in subsection (lA)

for that right of appeal to be conditioned upon a

question of law. Subsection (3) provides that the

jurisdiction shall be exercised by the Full Court

of the Federal Court. Subsection (4) provides

that:

The Court shall, in determining the

appeal, make such order as it thinks

appropriate.

And then subsection (5):

Without limiting by implication the

generality of subsection (4), the orders that

may be made by the Court on the appeal include

an order affirming or setting aside the

decision of the Disciplinary Tribunal and an

order remitting the proceeding to be heard and

determined again, either with or without the hearing of further evidence, by the Tribunal

and in accordance with the directions of the

Court.

Your Honours, in Amoe v Director of Public

Prosecutions (Nauru), 103 ALR 595, the relevant

provision providing for the appeal was in the Nauru

High Court Appeals Act, section 8 of which is set

out on page 598 at line 15 where it is provided

that:

"The High Court in the exercise of its

appellate jurisdiction under section 5 may

affirm, reverse or modify the judgment -

and, in that sense, the words are similar to those

in section 79 -

decree, order or sentence appealed from and

may give such judgment, make such order or	decree or impose such sentence as ought to
have been given -

and again, we say that that provision is similar to

that in section 79(4) -

made or imposed in the first instance or remit
the case for re-determination by the court of
first instance, by way of a new trial or
rehearing, in accordance with the directions
of the High Court".

Your Honours, in our submission, that, in its general character, makes a similar provision to that to be found in section 79 as to the nature of

the appeal.

Rosevear	7/5/92
McHUGH J: That is true so far as subsection (4) is

concerned, but is not the vital distinction that

section 79 specifies the grounds of appeal. They

can either be a question of law or that the penalty

is unduly severe or inadequate. The theory of

section 79 seems to be to keep the facts of the

case away from the Full Court. If there is an

error of law, whether it be generally or even on

sentence, you can appeal, but otherwise the

Full Court must take the facts as they are established below and then make its judgment as to

whether or not, in a penalty case, it was unduly

severe or inadequate.

MR HASTINGS: Yes, but in that case, Your Honour, that

decision is to be not conditioned upon the

existence of any error of law.

McHUGH J:	Oh, yes, I accept that.
MR HASTINGS:	So that, in so providing, in our submission,

it in effect provides for a rehearing situation.

McHUGH J: Having regard to the facts established, you can

say on those facts it is unduly severe or

inadequate, depending on who the appellant is.

MR HASTINGS:  Yes, Your Honour, I accept that, subject to

more general provisions or statements of principle

in relation to the way in which an appellate court

should deal with matters of fact when proceeding by

way of rehearing, which of course limit the

appellate court, when it comes to matters such as

credit.

McHUGH J: But there is no appeal on questions of fact.

That is the point I was seeking to emphasize. The

theory of the section seems to be to keep questions

of fact away from the Full Court. So you can

appeal on a question of law or you can say that on

these facts the penalty is unduly severe or

inadequate.

MR HASTINGS:  Your Honour, I suppose it depends the level of

fact that one is focusing. So far as one might be

concerned with the primary facts, I would accept

what Your Honour says, but if it came to

conclusions - - -

McHUGH J:  What I am putting, I do not think it is against

your interests, having regard to the approach of

the - - -

MR HASTINGS:  I will not disagree, Your Honour. I accept

that, but when it comes to conclusions to be drawn,

those conclusions from the facts are to be, in my

submission, formed independently by the appellate

Rosevear 4 7/5/92

court. That is the point at which I agree with

Your Honour.

TOOHEY J: But it is one thing perhaps, Mr Hastings, to say

that an appeal under 79(1A) is not conditioned by

error of law, but do you say it is not conditioned

by any error on the part of the tribunal below?

There has to be some basis upon which the Court

will interfere. That is built into the section

itself.

MR HASTINGS:  Yes, but, Your Honour, we would say that is

only on the basis that if the appellate court comes

to a different view on the facts, then it ought to

make its intervention dependent upon the

demonstration of some error by the original judge.

TOOHEY J: 

Do you mean that whenever there is an appeal

under the subsection on the grounds that penalty is
severe or inadequate, that that requires of the
Court of Appeal - in this case the Full Court of

the Federal Court - an examination for itself?

MR HASTINGS: 

Yes.

TOOHEY J: And a conclusion by the court?

MR HASTINGS:  Yes. We would describe it as an independent

assessment of the facts and an independent

conclusion of its own as to the appropriate penalty

in this case to be applied as a result of that

analysis of the facts.

TOOHEY J:  Even if at first sight the appeal lacked merit

completely?

MR HASTINGS:  Your Honour, we would say that would not be

apparent at first sight. It would require a full

assessment of the facts before one was able to form

a view as to whether there was an error or not. It

is to be contrasted, Your Honour, with what I

submit was the error in the approach of, for

instance, Mr Justice Beaumont in this case, because

what he did was to - and I will take Your Honours

to it in a moment - start with the reasoning, as he

described it, of the President of the tribunal and analyse that reasoning process for the purposes of

identifying an error therein, and proceeded on the

basis that the Federal Court would only interfere

if the Commissioner was able to demonstrate the

existence of such an error.

TOOHEY J:  I suppose the reasons for doing that is that if

you do not do something like that then really, what

is described as a right of appeal is virtually an

open-ended review, is it not?

Rosevear	7/5/92
MR HASTINGS:	Yes, Your Honour, I would not shy away from

that. If one accepts that this is in the nature of

a rehearing - but of course, bearing in mind it is

only on the question of penalty, so that that is a

narrower issue than perhaps the whole trial - that

would be an appropriate way to view the proceeding.

And it, of course, in a practical sense, also is

mitigated by the fact that it proceeds on the

transcript and the other documents and exhibits

before the hearing, so that from a practical,

management point of view, that is not such an

onerous task.

Your Honours, I was only pointing to Amoe v

Director of Public Prosecutions for general

assistance. There are some distinctions in the

precise wording of the two sections which may have,
in some way, made a difference to the approach

precisely adopted in this Court in Amoe, but in

general terms, in my submission, what this Court

did in Amoe was to undertake the task which we say

that the Federal Court should have undertaken,

which was to examine the evidence and the exhibits

and come to its own view, which this Court did.	On
the whole of the - - -

McHUGH J: But the big difference in Amoe was that no

grounds were specified; the appeal was at large.

Whereas here, you can only appeal on a question of law or on the ground that the penalty is unduly

severe or inadequate.

·MR HASTINGS:  Yes.

McHUGH J: If you have facts A,B,C,D, you can say, on those

facts, the penalty was unduly inadequate or was

inadequate.

MR HASTINGS:  Your Honour, with great respect, that does not

in itself impose a restriction.	When the issue was
one of penalty and the only basis for appeal is

inadequacy, it really gives an appeal as at large,

I suppose, on that topic.

McHUGH J:  On those facts. It does not allow you to go over

the facts themselves. That is the big difference,

that in Amoe this Court said that the court itself

could examine the facts. Now you can take the

on those facts, was it inadequate. That

facts, but you have got to commence with what the say,

seemed to have been the approach of the presiding

judge in the case below.

MR HASTINGS:  Your Honour, in my submission one would not

necessarily be bound by the facts if there was a

Rosevear 6 7/5/92

demonstrable error in that fact finding process,

and that is why I hesitated earlier to agree.

McHUGH J: Well, that would not be an appeal on the ground

that the penalty was unduly inadequate, would it?

MR HASTINGS: Well, Your Honour, if our submission is

correct that this is in truth a rehearing on that

issue, in my submission the only way that a

rehearing could be conducted would be to permit

there to be some analysis of the facts as they were

found, and as to the basis for them.

McHUGH J: Well, the difficulty is that the section gives

you an appeal on a question of law and on the

ground that the penalty is inadequate. It does not

give you any appeal on the ground that the trial

judge found the facts wrongly.

MR HASTINGS:  Your Honour, in my submission, one can divorce

from one's consideration subsection (1) except for

the benefit of drawing the distinction between that

provision and subsection (lA).

McHUGH J: Well, I am not sure about that. I mean, until

(lA) was inserted the section made it plain that

facts were outside the province of the Full Court.

MR HASTINGS: Yes, but then we say significantly when

subsection (lA) was inserted it was not fettered by

any requirement for an error of law.

MASON CJ:  To what extent is a challenge to the facts as

found essential to your appeal?

MR HASTINGS: Well, it is not, Your Honour.

MASON CJ: It is not?

MR HASTINGS:  No. On our argument it does not arise in this

case, but I in general concept make the submission

that in a hearing of this nature it would be open

to the appellate court to make its own finding of

fact for the purposes of reaching its independent assessment of the gravity of the conduct. But in the reality in this case it is not an issue because

we do not say that the appellate court should have

changed any facts that were found by the President

of the tribunal.

MASON CJ: Well, there is no occasion for you to take issue

with what has been put to you by Justice McHugh.

MR HASTINGS:  No, it is not in a practical sense,

Your Honour, except in a theoretical sense.

Rosevear 7/5/92

MASON CJ: It does, as it were, reduce the entire scope ~f

the argument you would want to put if you were
forced to accept it but, none the less, it would

not affect your achievement of your limited goal.

MR HASTINGS: That is so, Your Honour, and I do not

necessarily need to succeed in that submission in

order to, in my submission, make good the
demonstration of the error which was nevertheless

apparent.

Your Honours, I think that I can make my point

more clearly by perhaps going directly then to the

reasons given by each of the judges of the Federal

Court. Your Honours will have observed that there

was a majority decision with His Honour

Justice Neaves in dissent. The fact that he

dissented on the facts is not pertinent to my

argument. What is more significant, I submit, is

the way that Mr Justice Neaves proceeded to

determine the matter, because there is a

distinction in the way that he approached it

compared with the way that the majority of
Their Honours Mr Justice Beaumont and von Doussa

did.

It will be observed that His Honour

Mr Justice Neaves did not fetter himself by

approaching the matter upon an analysis of the
decision of the learned President, but himself,

without reference to the way in which the

President's decision had been reached, embarked

upon a quite detailed and independent assessment of

the material in order to reach his own view as to

the appropriateness of the penalty, and in

particular - and I will not go through all the

facts in any sense at all - when one reaches

page 62 of the appeal book His Honour, having

reviewed some of the earlier decisions on the

criteria applicable to penalties under the Act,

His Honour, in effect, properly directed himself as

to the matters he was to take into account by

quoting the passage from Hardcastle v Commissioner

of Police and then thereafter, at the bottom half

of page 62, made his own summary of what he

considered to be the salient features of the

behaviour of the respondent. So that having

directed himself correctly as to the relevant

criteria he then, in my submission, approached the matter appropriately by applying those criteria to the facts independent of any previous determination

by the President, and finally, at the final page of

his judgment on page 65, expressed his own view as

to what he considered the appropriate penalty to

be.

Rosevear 7/5/92

That, Your Honours, we submit, is in stark contrast to the way, firstly, His Honour

Mr Justice Beaumont approached the matter.

His Honour's judgment commences at page 66 and

after setting out some of the statutory provisions,

at page 69 of the appeal book, he then quoted in
the middle paragraph a passage from Uranerz v Hale

on the basis that it provided the approach to be taken by the court in the present kind of appeal.

Your Honours will see that the passage cited,

in fact, deals with the quite narrow issue of the

manner in which the appellate court should deal
with issues of credit. This was not in any sense a
credit case. There was only one witness called

before the learned President of the tribunal, who

was to give some evidence of character as to the

respondent, and he gave some evidence as to his

satisfaction as to the way in which the respondent

went about his task, his place of employment, and

expressed a view that he may have had a problem

about alcohol. There was no question as to the

credit of that witness.

So that His Honour's citation of a passage

from a judgment dealing with the question of

credit, in my submission, manifests the error which

was entrenched thereafter in the way that

His Honour proceeded to resolve the matter because the passage that is cited provided no assistance or guidance to His Honour on the fundamental question

of the way in which the court should proceed.

Then, that error, I submit, is reflected again

by what he did thereafter in commencing a part of

his judgment under the heading "The reasoning of

the President of the Tribunal". The fact that he

appropriately used that heading is consistent with

the way in which he thereafter proceeded, because

what His Honour then did was to analyse the

reasoning of the President of the tribunal and look

for an error of principle in the way in which the

President resolved the question. What we say,

Your Honours, is that, with respect to His Honour, that he should have rather approached the facts of

the matter as they appeared in the material before

him and, as Mr Justice Neaves had done, come to his

own decision as to what he considered to be the

appropriate penalty.

TOOHEY J: Mr Hastings, is section 79(1A) markedly different

from other statutes which give the Crown a right of

appeal against inadequacy of sentence?

MR HASTINGS:  Your Honour, we would say it is, yes.

Rosevear 9 7/5/92

TOOHEY J: Because in the run of the mill provisions whi~h

give the Crown an appeal against inadequacy of

sentence, the ordinary approach would be to look at

the decision below and see whether it betrayed some

error of law or fact or whether, without betraying

any such error, it could be shown that the sentence

was manifestly inadequate. But ordinarily, would

the Court of Appeal, in that situation, embark upon

an exercise de novo?

MR HASTINGS:  In the sense of looking at the facts

independently, Your Honour, Your Honour uses the

term "de novo". Some of the authorities draw a

distinction between hearings de novo and

rehearings.

TOOHEY J: Yes, I perhaps should not have used that

expression. I did not mean it in a technical or

very precise sense but ordinarily, in that type of

appeal, it is necessary for the appellant to show

some error or just simply manifest inadequacy.	But
you say that section 79(1A) is an appeal of a
different sort?

MR HASTINGS:  One distinction, Your Honour, is the existence of subsection (4) which provides that:

The Court shall, in determining the appeal, make such order as it thinks appropriate.

TOOHEY J: But that is pretty standard, is it not? Not

necessarily in the precise language - - -

MR HASTINGS:  Not in the criminal appeal legislation.

McHUGH J: That takes effect after the court has interfered?

MR HASTINGS: Well, no, with the greatest respect, it would

seem to be in determining the appeal.

McHUGH J: Well, that is so, but it is still looking at the

end process, and you determine it by allowing -

MR HASTINGS:  And in the course of resolving the appeal, in

my submission, the court is obliged to make the

order that it thinks appropriate.

MASON CJ:  But traditionally it is designed to arm the court

with appropriate end powers in terms of making
orders. It is not directed to the actual process

of consideration and examination.

MR HASTINGS: Well, Your Honour, perhaps the cut-off point

is difficult to define but, in my submission, it

does in this instance emphasize that there was an

unrestricted freedom on the appellate court to come

to the view that it thought was appropriate to

Rosevear 10 7/5/92

those facts and make such orders as it considered

appropriate.

TOOHEY J: But do not the terms of (1) and (lA) deny that

proposition, that you can appeal on a question of

law or appeal upon the ground that the penalty is

unduly severe or inadequate. The section itself

specifies the grounds which can be the subject of

the appeal.

MR HASTINGS:  Yes, but in so far as the ground is simply to

appeal on the basis that the penalty was
inadequate, there is within that broad capacity, in
my submission, the further recognition in

subsection (4) of the fact that the court can then

impose its own decision on those facts, on the

question of the inadequacy of the penalty.

TOOHEY J: Well, that perhaps is the vital question in

determining whether the penalty was unduly severe

or inadequate: can the court examine the facts for

itself and hold that it was unduly severe or

inadequate because the judge erred or the tribunal

erred in its evaluation of the facts? One would

expect that, if you could examine the facts or set

them aside, that you would require a specific

ground of appeal for that. I mean, statutes

frequently say you can appeal on any question of

fact or law.

MR HASTINGS:  Your Honours, as I have already conceded, I do

not necessarily have to make good the proposition

for the purposes of this matter, because I am quite

happy to proceed on the basis that the facts as

presented to the appellate court were correct in a

fact finding concept, so that I need only persuade

Your Honours that given those circumstances there

was an error in approaching those facts.

TOOHEY J: Yes, I was going to say to you that the ratio in

Mr Justice Beaumont's judgment seems to appear at

page 75 between lines 6 and 10 where he says he

cannot find any error of principle, nor:

that the penalty he imposed was wrong for any

legitimate reason.

MR HASTINGS: Indeed, Your Honour. That was the point to

which I was going to finally come. In my

submission that reflects an error in so far as

His Honour has approached the matter and he thereby

indicates by looking for an error of principle or

some legitimate reason for finding that the penalty

was wrong and, in my submission, he should have done what Mr Justice Neaves did and that was to

apply an open mind for the purpose of coming to his

Rosevear 11 7/5/92

own view of what the appropriate penalty should

have been on the facts presented.

Indeed, Your Honour, in my submission,

His Honour Mr Justice von Doussa ultimately adopted

the same approach. His Honour

Mr Justice von Doussa, at page 79, referred to

House v The King and - - -

TOOHEY J: That does not sound like - 79, is it?

MR HASTINGS: It is hard to read. Working by a process of

deduction, I think it is page 79.

TOOHEY J: Yes, I see.

MR HASTINGS:  At page 4 of his judgment. At the bottom of the page, His Honour says:

The circumstances where a court

exercising an appellant jurisdiction will

interfere with the exercise of a discretionary

judgment are clear.

And he refers to a well known passage of House v

The King, in the course of which, on the following

page, it contains the following statement, in the
second sentence:

It is not enough that the judges composing the appellate court consider that, if they had

been in the position of the primary judge,

they would have taken a different course. It

must appear that some error has been made in

exercising the discretion -

and then there is reference to the various matters

which may constitute such an error, such as wrong

principle, extraneous or irrelevant matters.

Your Honour, in my submission that approach is

erroneous for the purpose of determining this

matter, because what is there being required, under

the dicta from House v The King is what is either

in fact an error of law, or something which is

tantamount to an error of law before the discretion

of the lower court will be interfered with. In my

submission, where there is no requirement as there

is lacking in subsection (lA) for an error of law,

it is inappropriate to adopt that principle by

which to determine this appeal. And His Honour,

after revealing a number of authorities, finally

came to the conclusion that that would be an

appropriate basis.

Your Honour, the argument which was put to

His Honour Mr Justice von Doussa, and in a general

Rosevear 12 7/5/92

way we maintain, today, is contained at page 81 -

there is a reference to this Court's decision in

Warren v Coombes containing, the second-last

sentence:

If the Court of Appeal would not have come to the same conclusion themselves, it does what

the Court of Appeal ought to do - what it is

there for - it overrules the decision.	But
short of that, it should accept the conclusions of fact

and there repeats the argument which we now make

that the approach urged is that:

if upon a consideration of the material before
the court, the court would not have come to

the same conclusion, it should substitute its

own view.

Now in the end result at page 84 in His Honour's

judgment, he falls in line with the approach of

His Honour Mr Justice Beaumont and says, in the

last paragraph:

Beaumont J. has undertaken a review of the reasons for decision of the President of

the Tribunal. I agree with that review. The

reasons for decision of the President disclose that each of the matters emphasizes by counsel

for the applicant was taken into account. In my opinion the applicant has not demonstrated

any error of fact or law by the President in

reaching his decision, nor am I persuaded that

the decision was unreasonable such that this

Court should infer that the exercise of

discretion miscarried for some undisclosed

reason.

And again, Your Honours, we say that that adopted

the same error of His Honour Mr Justice Beaumont in

proceeding on a previous position to acceptance of

a decision of the President by looking for an error

in the approach that he adopted rather than

adopting what we say would be the appropriate

technique of looking intendedly at the facts in
order to make an independent assessment of the

appropriateness of the penalty.

McHUGH J: 

Mr Hastings, does the second reading speech of

the Minister throw any light on what the purpose of
Parliament was in enacting subsection (lA)?

MR HASTINGS: Well, only the obvious, Your Honour, that it

was to provide a right of appeal on penalty. It
does not seem to shed any light on the basis upon

which that matter would be determined.

Rosevear 13 7/5/92

Your Honours, in general terms they are the

submission we make as to the existence of the

error.

McHUGH J: What about special leave?

MR HASTINGS:  Your Honour, what we say is that this is a

matter of some practical consequence, in terms of

the one in which the appeals of this nature are

dealt with. It is not simply a technical argument

about the manner in which the matter is to be

disposed of. The fact that the approach adopted in

this Court - in this appeal - involved - as what I

would describe a predisposition to acceptance of
the President's view, deprives the Commissioner of
the right of a fresh and independent assessment of
the facts, and has therefore the likelihood of

perpetuating any error of judgment which has been

reflected in the original decision and, in that

way, there is a reduced opportunity for the

Commissioner to have an independent and fresh mind

applied to the question of the applicable penalty.

On the more general grounds, Your Honours, we

submit that this is a matter of some national

interest. The question of the maintenance of

discipline in police forces generally is a matter

of some concern. The Australian Federal Police is

a national body and there is, in our submission, an

interest in the community in ensuring that it is

properly disciplined; and not only that, but an
interest in ensuring that the confidence of the

community is maintained, that such a proper system

is in place.

In that sense, it is important, therefore, to

ensure that the appeal process on matters of
penalty, which may well be important, is a proper

one for ensuring that these matters are dealt with

with the appropriate gravity. More specifically,

Your Honours, this in fact is the first matter to

proceed by way of appeal under section 79(1A) and

if there is, as we submit, an error in the way that

the Federal Court approached this matter, that

error will become entrenched, no doubt, by virtue

of the fact that this judgment of the Federal Court

exists and any subsequent appeal will be met with

this as an authority. So that it would be an

appropriate case in which to correct any error

which now exists.

I appreciate that Your Honours may take the

view that this, even if we have demonstrated an

error, is quite a narrow issue and one of narrow

effect in its direct terms in so far as the number

of litigants likely to be affected by it would be

quite small, but nevertheless, if the Court

Rosevear 14 7/5/92

perceives an error to exist, it would be

inappropriate to allow it to continue.	They are my
submissions, Your Honours.

MASON CJ: Thank you, Mr Hastings. Yes, Mr Porter?

MR PORTER: Your Honours, I hand up my submissions.

MASON CJ: Yes.

MR PORTER: See, this is not an appeal on a question of law

or an appeal on a simple question of fact. This is
an appeal on a matter of discretion and in our

submission, in an appeal on a matter of discretion

there is, and has been for many years, what I have

called in these submissions, "a standard test".

One might call it the find an error test; it has

been set out in numerous authorities, but there is

a citation from House's case, which my friend read

to the Court, and that citation from House's case,

of course, has been used as almost a standard bible for appeals to the Full Family Court on exercise of

discretion, namely - - -

MASON CJ: Yes, but they are appeals from an exercise of

judicial discretion by a court.

MR PORTER: Well, that is my first point in l(a) and I make

the point there that in this particular case the

tribunal has to be, even though he is not sitting

as a judge, he has to be a judge. The president or

the deputy president of the tribunal, who is the

only person entitled to impose a penalty, must be a

judicial officer. So, in this case, it was

Mr Justice Foster. Now, the fact that the appeal

is from him when he is not actually sitting as a

judge, but as a tribunal, in my submission, makes

no difference at all; the appropriate test is what

I have called "the standard test".

McHUGH J: Well, except ordinarily, the prima facie rule is

that if there is an appeal to a court from an

administrative tribunal - "an appellate tribunal",

I should say a court - it is an exercise of

original jurisdiction, rather than appellate

jurisdiction.

MR PORTER:  But one still applies the standard test on a

matter of penalty, and that is my point l(c) in
those submissions. If you take an appeal from the

old statutory committee for solicitors, now the

disciplinary tribunal, an appeal on penalty from

them, again you apply the same standard test. The

Full Court or the Court of Appeal does not assess the matter anew, but it sees whether the

disciplinary tribunal made an error. That runs

right through the pattern of legislation with, of

Rosevear 15 7/5/92

course, the exception of those jurisdictions whare

the appeal from the disciplinary tribunal or the

administrative tribunal is an appeal de novo, such

as in Builders Licensing Board v Sperway

Constructions, that sort of thing.

MASON CJ: If this principle is as pervasive as you say it

is, no doubt you can refer us to authority which

establishes it.

MR PORTER:	I can refer you to authority which establishes - I have already referred you to the family law
authorities which establish - - -

MASON CJ: Yes, I know, but the trouble there is you are

dealing with an appeal to a Full Court in relation

to the exercise of a judicial discretion by a judge

sitting as a judicial officer in a court.

MR PORTER:  The only distinction, as I have pointed out, is

that - - -

MASON CJ:	I follow that.
MR PORTER:	- - - he still has to be a judge here and he is

sitting in all respects as a judicial tribunal.

MASON CJ: Yes, but the problem is that when the matter

comes to the court, it is an exercise of original
jurisdiction by the court, which immediately

distinguishes it from other cases. That is why I

asked you if you had any authority dealing with

some of the instances you have given, such as the

statutory committee.

MR PORTER: For instance, the statutory committee - I think

this Court laid down the authority for the proper

approach to a penalty in Clyne's case and numerous

cases that have come to this Court. In

disciplinary decisions the Court has always applied

what I might call the mistake test, not the	reassessment test. In the case of criminal
appeals, of course, House's case is authority,
Tait's case is authority. There are numerous
authorities to which Mr Justice Toohey was referring a little time ago.

McHUGH J:  One problem I have with that line of authority is

the structure of this section. You start off with

subsection (1) which says that there is to be an

appeal on a question of law, which by hypothesis

eliminates factual appeals, and then you have (lA)
giving the appeal on the ground that the penalty is

unduly severe or is inadequate.

MR PORTER:  I suppose that fits in, of course, with the

pattern of the Act, because the Act itself provides

Rosevear 16 7/5/92

for penalty and penalty alone, in certain

circumstances - as in this case - to be fixed by a

judicial officer who is made the tribunal for the

purpose.

TOOHEY J:  You say, Mr Porter, by a judicial officer, and

that is true for this case, but the same sort of

questions could arise, could they not, where a

dismissal was not involved. The matter would then

would come before a tribunal not constituted by a

judge. Is that the way it works?

MR PORTER:  No, I do not think that is so. I think, as I

understand the situation, the penalty can only be

fixed under sections 55 and 65(6), I may be wrong

there. I do not think there is any way in which

say, Mr Maguire, could have fixed the penalty.

See, if a non-judicial officer comprises the

tribunal when it decides the factual basis, he does

not fix the penalty; he refers it to the

Commissioner. The Commissioner then fixes the

penalty. If the officer wants to appeal he can

then appeal back to the tribunal, but this time the

tribunal is a differently constituted tribunal; it

must be a president or deputy president.

TOOHEY J:	I thought I read some provision relate expressly with the penalty of dismissal.
MR PORTER:	If Mr Maguire had been Mr Justice Foster, acting

as the original tribunal, he then could have

imposed the penalty himself.

TOOHEY J: Are you saying Mr Maguire could not have imposed

any penalty at all?

MR PORTER: That is as I read the Act.

TOOHEY J:  What is the section, Mr Porter, that produces

that result?

MR PORTER:  I think, if you come to section 67(3)(b):

writing, of its findings

if the Tribunal is not so constituted - The

That is how Mr Maguire came to make the reference

to the Commissioner on this case. See, if you look

at (3)(a):

if the Tribunal is constituted by the

President or a Deputy President -

Now, the president or the deputy president must be

a judicial officer.

Rosevear	17	7/5/92
TOOHEY J: Yes, thank you.

MR PORTER: It is a strange way of doing it. So, to come

back to Justice McHugh's question, the reason for

the legislation in isolating this question of
penalty may be linked up with that; that is the

only explanation I can give; that for reasons best

known to itself, the Act does distinguish penalty

from findings of guilt. And it only gives the

appeal to the Full Federal Court on the question of

either mistakable or penalty.

TOOHEY J: Yes.

MR PORTER:  But we say that that appeal is, to all intents

and purposes, analogous to an appeal to a

Court of Criminal Appeal on sentence, whether

inadequacy or excessive, and that the appropriate

approach is that it has to be shown that the

sentencing judge was in error in acting on a wrong

principle or a misunderstanding or wrongly

assessing some salient feature of the evidence or
the sentence itself may be so excessive or

inadequate as to manifest the error. I have been

reading from Tait's case, 24 ALR at 476, but that

merely sets out what was set forth in House's case

and it is the approach that has been adopted for
any appeal from an exercise of judicial discretion

and it has been the approach - - -

MASON CJ: Well, there is no contest about that.

MR PORTER:  And it is the approach that has been adopted, we

say, to all those disciplinary tribunals which

appealed to a Full Court. It is not the approach

that applies to those disciplinary tribunals that

appeal to the district court, where there was a

rehearing in the nature of a district court appeal

from a Justices Act, like section 122 of the New

South Wales Justices Act, where there was a

complete rehearing.

MASON CJ:  You mean hearing de novo?

MR PORTER: Hearing de novo, I should say, yes. Complete

rehearing is sometimes much easier to say the

hearing de novo. Now, what my learned friend is

arguing for here is, in effect, a hearing de novo

on facts which are either in written form or have

been found by the presiding judge. I mean, if you

work this thing out it is a rather extraordinary

business to have a hearing de novo in which you are

not entitled to call evidence yourself in the

appellate jurisdiction, and yet the judge himself

may, as here, have the advantage of seeing the

witnesses.

Rosevear 18 7/5/92

McHUGH J:  I know this is before the Full Court, and I

suppose that is a relevant factor, but who says you

cannot take new evidence before the Full Court?

MR PORTER:	Simply because there is a statutory provision giving a right of appeal and no provision giving a
right to call fresh evidence.

TOOHEY J: But might that not be taken up in the Federal

Court of Australia Act?

MR PORTER:	The Federal Court of Australia Act, in our submission, does not take that up. It has never
been suggested -

TOOHEY J: Well, when you say it does not take it up, you

mean there is no such provision, or if there is a

provision it is not applicable?

MR PORTER:  There is no such provision which is applicable

to this. As a matter of fact, as I recall it, the

Federal Court of Australia has yet really to decide

whether it has power to call fresh evidence at all.

It may well not have it.

TOOHEY J: But what about the appeal of the disciplinary

tribunal from a penalty imposed by the

Commissioner. It does not provide in express terms

that you can call evidence, does it?

MR PORTER:  Yes, I think it does. I think it expressly

provides there for that. I think the section is

section 81 - no, sorry, that is the Full Court.

The one for the disciplinary tribunal - there is a

general provision for the procedure before a

disciplinary tribunal in section 76.

TOOHEY J:  Mr Porter, section 27 of the Federal Court Act,

assuming that the form in which I have it is

untouched, empowers the Court to -

have regard to the evidence given in the

proceedings out of which the appeal arose, and

has power to draw inferences of fact and, in its discretion, to receive further evidence,

which evidence may be taken on affidavit, by

oral examination -

and so on.

MR PORTER:  Yes, but that, as I understand it, Your Honour,

is a similar situation found to the power in the

New South Wales Supreme Court Act, and that is a

very limited power to call fresh evidence. That is

not the sort of power we are dealing with here.

TOOHEY J: Well, that may well be.

Rosevear 19 7/5/92

MR PORTER:  It is a limited power to call evidence as to

events which have happened since the judgment
or - it is a very restricted power to call

evidence.

TOOHEY J:  Can you tell me this: is there any statute that

you are aware of in which it is quite apparent that

what is described as an appeal is essentially a

review by the appellate court, starting afresh - I

mean, on the material from below, but which the

Court is not constrained by the way in which the matter was approached by the tribunal below?

MR PORTER:	Where is it actually said in the statute -
TOOHEY J:	No, I just wonder whether there was - say, in relation to an appeal from some tribunal or other -

MR PORTER: Well, for instance, in the New South Wales

Justices Act, section 122 gives a district court

appeal - it used to be known as a quarter sessions

appeal - and that is - I have got an idea that the

Justices Act actually refers to that as an appeal

by way of rehearing, although it is known to be an

appeal de novo, but there are historical reasons

for that.

TOOHEY J:  I am thinking of an appeal de novo in the sense

that the court heard evidence afresh, but it worked

on the material from the court or tribunal below

but it was quite clear that it embarked on a review

of its own.

MR PORTER:  No, that is precisely the point I was trying to

make, Your Honour, that, in my submission, there

just does not seem to be such an animal.

McHUGH J: Well, what about Australian Sporting Car

Commissioners v Dash, 47 SR(NSW), an appeal to a

magistrate from the Commissioner of Transport's

refusal to give you a licence?

MR PORTER: But the magistrate has power to call fresh

evidence and so forth, in those cases.

McHUGH J: But it was in terms - - -

MR PORTER:  Oh, it is a rehearing.

McHUGH J: Well, yes. It was said to be an appeal, though,

against the commissioner.

MR PORTER: Well, you have got a similar one now where the

commissioner cancels a driver's licence; an appeal

to a magistrate. But those types of appeals fall

Rosevear 20 7/5/92

squarely within the Builders Licensing case v

Sperway, because - - -

McHUGH J:  I know, but it is still called an appeal; that

was the point.

MR PORTER:  They are still called an appeal, but where the

original administrative decision is made by a body

that does not itself have a judicial hearing, then

there is a prima facie presumption that the body to

which the appeal is prescribed by statute shall

hear the matter de novo, and that is why, for

instance, you might go from the optometrist board

to the district court appeal de novo. On the other

hand, you will go from the Medical Disciplinary

Tribunal to the Court of Appeal, no appeal de novo.

McHUGH J: Not now, but

MR PORTER:	Never was.
McHUGH J:	No, but there was an appeal on facts.
MR PORTER:	Yes, there was an appeal on facts but it was not

an appeal de novo, and the same position now

applies to veterinary surgeons. Dentists go to the

district court. It is sometimes a question of some

nicety as to whether some of these appeals are

appeals de novo, hearings de novo, or appeals by

way of rehearing. It is sometimes quite a nice

question. But to come back to Mr Justice Toohey's
question, in our submission you cannot have this

sort of half-way house that my learned friend is

arguing for here, namely, an appeal to a body that

does not have a hearing de novo but yet makes up

its mind afresh.

In other words, what my friend is trying to do was to give to the Full Federal Court here a power

to reassess the matter for itself in the way an

appellate body de novo would do it, without having

the power to rehear the matter.

McHUGH J:  On your argument, that means that the Full Court

is confined to the material as at the date of the

disciplinary tribunal's finding.

MR PORTER: That is right.

McHUGH J:	So you could not call further evidence to show how well you had behaved or that you were getting
treatment for alcoholism.

MR PORTER:  No. Subject to the power that Justice Toohey

referred us to under section 27 of the Federal

Court Act, it may be that you might be able to get the court's leave to lead evidence of something

Rosevear 21 7/5/92

that had occurred since the disciplinary tribunal

heard it. As Your Honour will know, it is a very

restricted bases for calling fresh evidence in an

appeal court.

TOOHEY J:  In any event, there was no such evidence called in this case.

MR PORTER:  No, there was no such evidence called. But, you

see, the point we make is this, that this case

falls - we say this legislation falls within a

standard pattern of legislation and when Parliament

legislates for this type of appeal it must have in

mind the type of appeal envisaged by

Justices Beaumont and von Doussa.

McHUGH J:  I would be very sympathetic to that argument if

it did not stand in contradistinction to the appeal

on the question of law. Appeals on questions of

fact seem to be left out on their own, there is no

mention.

MR PORTER:  No, but why we say the argument carries force,

Your Honour, is this, that this is an appeal

limited entirely to discretion. Sentence is always

discretion, whether it is disciplinary sentence or

criminal sentence and all appeals on sentence must

be either, we say, a rehearing de novo, a hearing

de novo or a mistake appeal as in Tait's case and

as Justice Beaumont and Justice von Doussa found. But you cannot have a half-way animal. And prima

facie, if Parliament provides for an appeal from a

judicial officer on a question of discretion, then

the mistake test must be the test that Parliament

had in mind.

McHUGH J:  Can I just put this last consideration to you:

those are usually stated in terms of appeal against
sentence but here it is an appeal against penalty

on the ground that the penalty is unduly severe or

inadequate. It looks at quantum, not process.

MR PORTER:	I am sorry, Your Honour, I cannot follow the difference?
McHUGH J:	When you say you just give a general right of

appeal against sentence, the received

interpretation is that you have got to find some

error unless the result is manifestly inadequate

but, here, the section says that you can appeal

against penalty on the ground that it is unduly

severe or inadequate. So it looks at the quantum

of the penalty as opposed to the reasoning process.

MR PORTER: With respect, Your Honour, I think you could

make the same argument in the case of any standard

criminal appeal statute because the criminal appeal

Rosevear 22 7/5/92

Crown the power to appeal on the ground the sentence is inadequate. It gives another

statute - take the New South Wales Court of gives the

section of the Act - section 5, I think, gives the

prisoner the right to appeal on the ground that the

sentence is excessive. And you will find that

pattern right back in the English statutes, I

think, to which Justice von Doussa referred and

throughout the Australian States which have that

pattern of legislation.

With great respect, we would say you cannot put too much significance on the word "excessive"

or "inadequate" or "unduly severe". I mean, they

are standard expressions found in Courts of

Criminal Appeal Acts. But, fundamentally, you see,

coming back to this, this is a disciplinary

tribunal. For some reason or other Mr Maguire

decided the case on a beyond reasonable doubt base.

I am not too sure on what basis that was done, but

pass that by.

It then went to a judge, sitting, admittedly

as a judicial tribunal, but a judicial tribunal

that had to be comprised of a judge. He had a

power to act on the evidence transcribed from

Mr Maguire and any further evidence he called.

From that type of decision, we would say that the

standard appeal is what I call the mistake appeal

and I think the Court understands what I mean by

that.

Now, if you are going to make it some other

sort of appeal, then there would have to be
something in the legislation very clearly pointing

that way, and if you were going to make it some

other sort of appeal, the only other sort of appeal

you could make it would be an appeal for a new

hearing, a hearing de novo because, in our	submission, the animal for which, or the concept	for which my friend is arguing is one unknown in
the patterns of legislation, where you give to an appeal court a discretion to exercise
independently, yet no power to call fresh evidence, or no power to conduct a new hearing, and we say
the two things go together.

Say, for the sake of argument, this Court had

said - as Mr Justice Neaves said - "Well, we think

Justice Foster has given too much stress to what

Sergeant Castle said". Now, how do you decide

that? You can say he gave too much stress to it,

but can you get over the fact that he was very

impressed by his demeanour and his judgment and so

forth, which is what Foster said, who actually

heard the witness.

Rosevear 23 7/5/92

I might say, Your Honours, that my friend says

that Justice Neaves applied an independent

discretion. With great respect to my friend, he

did not. Justice Neaves applied, although he did

not say it, the mistake test. He went through the

facts and he came to two questions on which he held

that Justice Foster was in error. One was, he said

he had given overemphasis to Sergeant Castle's

evidence, and he had given overemphasis to the

disparity question. Those are both mistake

questions, well within the rules laid down in

Tait's case. They could have justified

interference with a criminal sentence.

So Justice Neaves did not say, "I have

independently come to this view". He said, "I have

found these errors in His Honour's reasoning and

therefore I come to this view". Once the error is

found, then it is for the Court to fix its own

penalty but, until the error is found, we say that

the judgment stands. That is the essence of what

is meant by an appeal on a question of discretion.

The idea of an appeal on discretion carries within it the concept of the mistake test.

MASON CJ:  I think you have made that point perfectly plain.

MR PORTER:  If I may come to the other matters. On the

question of special leave, this incident arose on

5 December 1988. For reasons best known to the

Commissioner, the matter was not determined by

Mr Maguire until 31 July 1990. My client has since

then been through the strain of an appeal to

Justice Foster, an appeal to the Full Federal

Court. It is now nearly two-and-a-half years since

the original incident.

McHUGH J: Three-and-a-half.

TOOHEY J:  You are rather under-estimating.

MASON CJ:	You have a stronger case than you are suggesting.
MR PORTER:	We would submit that there is a limit to the

extent to which one man can be used to elucidate

the law. That is what the Commissioner is seeking
to do now; they are using this case to elucidate
the law at the expense of considerable strain and

distress to my client. This is a matter that

should have been disposed of at least 18 months

ago. Two years surely is enough to deal with a

question like this.

McHUGH J:	Was your client suspended at any stage?
MR PORTER:	He was suspended pending the appeal to

Justice Foster; he was suspended on basic pay. He

Rosevear 24 7/5/92

suffered considerable financial losses throughout; they are dealt with in the .appeal papers. But now

we would submit that it is time that the litigation

came to an end. I appreciate that to a degree

legislation is sometimes elucidated by using a

particular case as a test case, but in this
particular case, the Commissioner having taken so

long to deal with this man, is he now in a position

to use him as a test case at this stage?

If the Court were minded to grant special

leave, we would submit, of course, this is a case

where special leave could only be granted on

special terms as to costs. So, if the Court were

minded to grant special leave, we would submit this

is a case where the Court would have to make

special orders as to costs.

MASON CJ:  Make costs a condition of the appeal?

MR PORTER: That the Commissioner should pay Rosevear's

costs in any event.

MASON CJ: Yes.

MR PORTER: But, in our submission, if Your Honour pleases,

even that - you see, as I point out in the final

paragraph, assume for the sake of argument this

Court grants special leave. Assume that then

ultimately in the fullness of time this Court

upholds the appeal. Then it will be remitted to

the Full Federal Court, and it by no means follows

that the Full Federal Court will reimpose the

dismissal from the police force, so that the
granting of special leave today would prolong my

client's dilemma for at least 18 months, probably

two years. In our submission, it would be, in all

the circumstances, unfair if the Court were otherwise minded to grant special leave, to elucidate the law so much at the expense of one

man. Those are my submissions, if the Court

pleases.

MASON CJ: Thank you, Mr Porter. Yes, Mr Hastings.

MR HASTINGS: Your Honours, just in relation to the

submission made by my learned friend that the

nature of the appeal urged by the applicant here is

something without precedent - Your Honours, whether

I be correct or not in suggesting that the decision

of this Court in the role that it fulfilled in Amoe v DPP is specifically analogous to this legislative

scheme, nevertheless, I do submit that the type of

function that the Court then undertook is the sort

of function in general terms which ought to have

been undertaken by the court in this case. That,

of course, as this Court recognized, had a general

Rosevear 25 7/5/92

obligation to rehear, but had within it inbuilt

limitations based on long lines of authority to the

effect that the court would not lightly interfere

with conclusions of fact unless there was some

palpable error, but nevertheless had a duty to form

an independent judgment on questions of inference

and so forth from those facts. So that in general

terms, Your Honours, we would say that this is a

sort of hearing which has been recognized as being

appropriate.

McHUGH J:  Mr Hastings, what do you say about two things:

first of all, the point that Mr Porter makes about

the fact that a ground of appeal in the terms
expressed in (lA) has conventionally been seen as

requiring some error in the reasoning process?

MR HASTINGS: Well, I endeavoured to deal with that earlier,

Your Honour, because that was an approach that

His Honour Mr Justice von Doussa took. Your

Honour, a distinction, of course, as Your Honour

the question of the type of appeal which results from a determination of an administrative

adverted to, was the fact that this is an appeal with
from an administrative decision and, as my learned

friend mentioned, the case of the Builders

body and, indeed, in that case a distinction is

drawn between types of administrative hearings,

consistent with a point my learned friend seems to

make, that this in fact, whilst it was an

administrative hearing, was heard by a judicial
officer. In that case there is recognition of the

fact that there are differences which emerge from

the fact that some administrative hearings, such as

by racing clubs and so forth, are of an informal

nature, whereas other hearings may be of a quite

formal nature, with proper pleadings and

appearances by counsel.

Nevertheless, that, in my submission, in this

case, is a meaningful distinction between the
general provisions relating to appeal on sentence,

for the specific reason, of course, that there are

differences in the types of hearings. This is a
matter in which there was, for instance, no

obligation to follow the normal rules of evidence,

nor specifically other matters of procedure which

would be part of the sentencing process to be

followed by a judge, so that reason would seem in

itself to be a significant factor for

distinguishing those provisions.

McHUGH J:  The second matter is, if special leave were

granted, by the time the appeal was heard and if

you succeeded and went back to the Court of Appeal,

Rosevear 26 7/5/92

probably more than four years would have elapsed by

the time the matter was disposed of.

MR HASTINGS:  Yes, I cannot resile from that, Your Honour.

The matter has proceeded very slowly. I can only

say that that, one would hope, would be a matter

which would ultimately be taken into account at the

time when the matter was properly determined. But,

on the other hand, if the Commissioner is correct

that the behaviour of the respondent was such that

he was disqualified from being an Australian

Federal Police officer thereafter, that in itself

would not be a major disadvantage to the

respondent, because he has had the benefit of

continued employment in the interval.

McHUGH J: Thank you.

MR HASTINGS:	Thank you, Your Honours.
MASON CJ:	The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 12.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.47 PM:

MASON CJ:  By majority the Court is not persuaded that the

decision of the Full Court of the Federal Court is

attended with sufficient doubt to justify the grant

of special leave to appeal. The application for

special leave is therefore refused.

MR PORTER:  I ask for costs, if Your Honour pleases.

MASON CJ:  What do you say as to that, Mr Hastings?

MR HASTINGS: There is no objection.

MASON CJ:  The application is refused with costs. Court

will now adjourn until 9.30 am tomorrow in

Melbourne and 10.30 am tomorrow in Canberra.

AT 12.48 PM THE MATTER WAS ADJOURNED SINE DIE

Rosevear 27 7/5/92