Dickson v The Queen

[2010] HCATrans 222

[2010] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2009
  No M102 of 2010

B e t w e e n -

KEVIN JOHN DICKSON

Applicant/Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 AUGUST 2010, AT 10.17 AM

Copyright in the High Court of Australia

MR T.F. DANOS:   If the Court pleases, I appear with my learned junior, MR P.D. HERZFELD, for the appellant in matter M102 of 2010 and the applicant in M11 of 2009.  (instructed by Tony Danos Solicitor)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned junior, MR B.L. SONNET, for the respondent in both matters.  (instructed by Solicitor for Public Prosecutions (Vic))

MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia:   If the Court pleases, I appear with MS K.C. MORGAN for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act in the appeal, matter M102 of 2010.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, on the instructions of the Attorney‑General for South Australia intervening in the appeal, the same number as the Solicitor‑General for the Commonwealth just gave to the Court.  (instructed by Crown Solicitor (SA))

FRENCH CJ:   Yes, Mr Danos.

MR DANOS:   If the Court pleases, perhaps if I can start with what might be described as a housekeeping matter.  Your Honours will have observed that with our submissions in relation to the appeal in annexure 2 we have amended slightly the notice of appeal.

FRENCH CJ:   Is that proposed amendment opposed?

MR DANOS:   I do not believe so, your Honour, at least ‑ ‑ ‑

MR SILBERT:   No, your Honour.

FRENCH CJ:   Yes.  You have leave to amend accordingly.

MR DANOS:   If the Court pleases.  That being so, your Honours, it would certainly seem that the constitutional points ought be dealt with ‑ ‑ ‑

FRENCH CJ:   Yes, we will hear you on the appeal argument now.

MR DANOS:   Should I confine myself to that at this stage?

FRENCH CJ:   Yes, if you would.

MR DANOS: In relation to the constitutional points and particularly under the operation of section 109, as our submissions have outlined, we have indicated that both in relation to conspiracy and in relation to the theft provisions that there is, we would submit, a conflict. If I can turn to the conspiracy aspect first and in relation to that – I mean, obviously without seeking to repeat what is in our submissions, can I simply add some following points. Firstly, the conspiracies section, section 11, forms part of what is described as the Criminal Code.  As we understand a code it is in its very nature seeking to bring together all of the relevant positions and the law up till that point and seeking to codify it.

GUMMOW J:   That follows from 1.1.

MR DANOS:   Yes, and reinforced, your Honour, we would submit when one looks at 2.1 and 2.2, where it says quite clearly that it is seeking to:

codify the general principles of criminal responsibility under laws of the Commonwealth.  It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

FRENCH CJ: This, of course, is talking about Chapter 2?

MR DANOS: Yes, but Chapter 2 goes on to say this, your Honour, in 2.2:

This Chapter applies to all offences against this Code.

In our respectful submission one could not, when one adds and when one looks at, for example, the dictionary itself, one could not find a more extensive dictionary or definition section, for want of a better description, than that that is set out under the Code.  Again, we would simply submit that this is illustrative of the proposition that so far as it relates to the conspiracy section in the Code that it is seeking to cover the field.  In fact, we would say short of a direct proposition, namely, it is the intention of the legislature to cover the field, we would submit that there ‑ ‑ ‑

FRENCH CJ:   The question whether we are dealing with codification is distinction, is it not, from the question of whether there is an intention to cover the field in a way that excludes a concurrent operation of a State law in the field?

MR DANOS:   The codification, your Honour, is simply, in our submission, an indication as to whether that is what the legislature’s intention is.  When one looks at the way in which the conspiracy sections are set out and when one compares that to the State ‑ ‑ ‑

FRENCH CJ:   Does it not simply mean this, that if you want to find out what is the law of Commonwealth with respect to principles of criminal responsibility this is where you find it?

MR DANOS:   Yes.  But then when one looks at what Justice Dixon, as we was in Ex parte McLean (1930) 43 CLR 472, particularly at 483, his Honour’s judgment says this:

When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec 109 applies . . . But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be.  If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties.  The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience.  It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.

If I can interpolate there, that is why, when one looks at the Code, when one looks at the intention of the Code, when one looks at the extensive way in which that led the section 11 conspiracy legislation as set out, we would submit, one could not, short of the words being used, demonstrate a clearer intention to cover the field in relation to Commonwealth property.

HAYNE J:   Now, a starting point may be to determine whether the offence of conspiracy prescribed by 11.5 of the Code is identical with the offence known as the offence of conspiracy under Victorian law.  There are some differences, are there not?

MR DANOS:   There are significant differences, we would submit.

HAYNE J:   So this is not a case where Commonwealth and State Parliaments have prescribed a rule of conduct that is identical.  A rule of conduct relevantly is different, is it not?  One conspiracy offence differs from the other.  That is a point, I would have thought, that would work in your favour rather than against you.

MR DANOS:   If the intention is not to cover the field, that the inconsistencies are such that they cannot operate side by side, then I agree with your Honour and I would not take issue with that.

FRENCH CJ:   These are the matters which you address, I think, at 46 of your submission.

MR DANOS:   Yes, your Honour.  They are largely contained in paragraphs 49 through to 53.  Obviously we would put it in the alternative, your Honours, that if there is the direct inconsistencies, which we have set out in paragraphs 42 through to 48 inclusive, then the effect of those would be that there would be an inconsistency within the operation of section 109 and the Commonwealth legislation would take precedence.

HAYNE J: All of this has to be judged against a background provided by section 80 of the Constitution, which provides this additional element, that the trial which a person accused of State crime undergoes is a trial in which section 46 of the Juries Act 2000 (Vic) would be engaged and there would be the capacity for a majority verdict. By contrast, section 80 being engaged, there would not be capacity for majority verdict if the person stands charged of Commonwealth crime. Is that right?

MR DANOS:   That is correct, your Honour.  In relation to the theft provision - and they are the submissions that we would make in relation to the conspiracy point on section 109 - in relation to the theft aspect, your Honour, that is set out again in our submissions from paragraph 54 through to 67 inclusive.  There is a much narrower, if I can put it that way, distinction between the two respective theft acts, or the two respective theft offences.  Nevertheless, there are significant differences, as we have set out in our submissions.

GUMMOW J: I think in addition to section 80, there is a relevant point, perhaps, made by Chief Justice Gibbs in Metwally 158 CLR 447 at the bottom of 457 to 458 where the Chief Justice refers to Butler and he says:

Its provisions are not only critical in adjusting the relations between the legislatures of the Commonwealth and the States, but of great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe.

That must imply, I would have thought, very emphatically where it is criminal law that one is talking about.

MR DANOS:   Again, we would not take issue with that proposition.  That is, your Honour, probably the point that is in paragraph 22 of our reply.

GUMMOW J:   Paragraph 22.

MR DANOS:   Yes.  The other point that Justice Hayne raised would probably apply, your Honour, to the theft provision as well, although the point here is, of course, that the appellant was charged with conspiracy, not with theft.  If it was a theft charge it would seem to apply in the same way.  If the Court pleases, unless there are any other matters that we can assist with at this stage, they are our submissions on the ‑ ‑ ‑

FRENCH CJ:   Yes, very, well.  Thank you, Mr Danos.  Yes, Mr Silbert.

MR SILBERT:   If the Court pleases.  Our position is set out in our submissions and I would respectfully adopt what the Commonwealth intervener has had to say in its submissions in relation to paragraph 46 of the appellant’s submission on ground 5; the Commonwealth has taken issue in paragraph 11 of its submissions.  In relation to the second aspect referred to by my learned friend, 54 to 67 of their submissions, the Commonwealth has taken issue in paragraph 13 of its submissions. 

So, effectively, I would seek to adopt the Commonwealth submissions, save and except as to the first appendix where we get involved in the question of proprietary rights and ownership.  It may well be that the Court does not need to get involved in the area of who actually had what interest at what time, but my adoption of the Commonwealth position should not be seen as adopting the position of title which is set out in the appendix to the Commonwealth’s position.

HAYNE J:   Questions of title turn on material that you seek to provide us with that was not in evidence below, I think, does it not?

MR SILBERT:   Well, your Honour is quite correct, and I have read Mickelberg and I have read Eastman and I am aware of the law on that, but I am also aware of the exception, the exception being that if the fresh evidence bears on a constitutional fact there may yet be a submission in relation to that and it is a matter of whether there is any proof of the Commonwealth entity, absent the Customs seizure notice, which no one ever looked at until after we first appeared before your Honours a month ago. 

Now, it may well be that an examination of the transcript reveals effectively no evidence of a Commonwealth entity without viewing that seizure notice, and if the Court was of the opinion that it was necessary to view the seizure notice in order to establish, or at least evince evidence that there was a Commonwealth entity with proprietary rights, then I do have nine copies here in case the Court would be interested.

I do accept that your Honours may not be interested in that and, indeed, the case could be heard, argued and decided on the basis that there was an original owner of indeterminate name and status and that it was not necessary to identify the original owner of the cigarettes prior to seizure by Customs and, indeed, at the time of theft.  It really takes us into an area of the Customs law and Burton v Honan as to whether the amendments to the Customs Act in 1995 overturned the common law as espoused by Chief Justice Dixon in Burton v Honan and provided for a different regimen as to title. 

Now, I am in your Honour’s hands as to that, and I accept fully what your Honour Justice Hayne has had to say in relation to that.  That is why I do not adopt the Commonwealth submissions set out in its appendix, in the appendix to its submissions in relation to that question of title, but whether the Court needs to get involved ‑ ‑ ‑

GUMMOW J:   What are the particular references to constitutional facts in Eastman and Mickelberg, do you know?

MR SILBERT:   As to whether it has a bearing on a matter fundamental to the determination of the constitutional issue.  Now, whether this goes that far, I make no submission, as I say, I am in the Court’s hands, but fundamental to the constitutional argument here is the question of the Commonwealth entity having proprietary rights.

GUMMOW J:   A point is that there being a constitutional point it would have been open to Mr Danos to commence a proceeding in the original jurisdiction, I think.

MR SILBERT:   Yes, your Honour, but the constitutional point did not arise until agitated by your Honours.

GUMMOW J:   I know, yes.

MR SILBERT:   At the time we last appeared before your Honours we tried to get a copy of some material from Customs and they were extremely slow in providing it.  We now have the seizure notice which we did not then have.

FRENCH CJ:   Perhaps what you might do, Mr Silbert, is to provide us with the seizure notice and we will consider whether we have regard to it.  You can argue on the assumption it is before us.

MR SILBERT:   The point of departure, and again I do not know whether this is relevant, is that under the terms of the regimen introduced by the amendments to the Customs Act in 1995 it provided for a seizure notice and then for 30 days after service on an owner before such goods are to be taken to be condemned as forfeited to the Crown.  Your Honours will see that from paragraph 2 of the seizure notice.  Effectively, the owner of the goods, Feel Good Australia Pty Ltd, actually owned the goods as at the date of seizure on 24 December 2003.

Our submission would be that ownership remained in Feel Good Australia until such time as 30 days from the service of that notice had elapsed, so that legal ownership vested in Feel Good Australia Pty Limited.  We then come to the question of the proprietary rights of Dominion as the warehouse where the goods were stored, Customs as to the seizure of the goods and the entity that had deposited the goods with Dominion, so that there are a variety of rights and interests in those goods up till the time of the theft of the cigarettes.

HEYDON J:   Are you taking a point that 20 January 2004 was the day when the conspiracy was effectuated and that is only 15 days after 5 January 2004 and therefore the Commonwealth did not have ownership pursuant to the Customs Act at the relevant time?

MR SILBERT:   That is my submission, your Honour, yes.  If permitted to make that submission, the answer is yes and when one looks at the dates, one can actually reach that conclusion without looking at the seizure notice because the dates do not provide for 30 days after seizure for the vesting of title in Customs under section 205G and 208 of the Customs Act.  Chronologically, it was impossible for the 30 days to have elapsed, in any event, so your Honours could certainly approach it on the basis, if your Honours chose, of not looking at the seizure notice because, in one sense, it is unnecessary.  It depends how interested one is in analysing the bundle of rights and proprietorships of various parties in the cigarettes as at the date of the theft, 20 January.

FRENCH CJ:   They were under the control of Customs at the relevant time?

MR SILBERT:   Yes, certainly.

FRENCH CJ:   Whether or not title had vested pursuant to section 205G?

MR SILBERT:   Precisely, your Honour.  Having adopted what I see as the beneficial part of the Commonwealth’s submission, I do not know that there is anything further I wish to add unless the Court has questions for me.  The submission is that there is no inconsistency either covering the field or direct inconsistency and that there is current operation and, indeed, it is set out in our submissions in the explanatory memorandum.  There was certainly contemplation at the time of the introduction of the Code that certain Commonwealth offences could be prosecuted by State authorities where theft had occurred.  Now, in that situation the Victorian Crown’s submission is that there is no inconsistency under section 109. 

MR HAYNE:   Do you accept that the elements of the Commonwealth offence of conspiracy differ from the elements of the State offence of conspiracy?

MR SILBERT:   I accept, as I have to, that there is a variation, although your Honours have recently pronounced on the elements of conspiracy under the Commonwealth Code and, indeed, in a case which your Honour will recall of LK where the Chief Justice went through the history of conspiracy and, indeed – it seems my friends started off saying it was codification.  Whether it is a tabula rasa or a palimpsest, there seems to have been general agreement amongst the Court in R v LK and R v RK that common law concepts of conspiracy were involved in the interpretation of conspiracy and that the Code did not codify as such without preconceptions of what conspiracy was in pre‑existing law. 

So in answer to your Honour, yes, I do accept that, as strictly set out there.  For example, there is a requirement of an overt act in the Commonwealth Code, there is no requirement of an overt act under State law, although how one would ever get a conspiracy case up without forensically introducing evidence of an overt act, I do not know.  So one is stated and one effectively is unstated, but the answer to your Honour simply is yes.

BELL J:   Indeed, there are differences in relation to the theft offence as between the Commonwealth Code and the provision under the Crimes Act (Vic) and that is accepted.

MR SILBERT:   Yes, your Honour.  Yes, it is.

BELL J:   So both the substantive offence, the object of the conspiracy and the conspiracy provision differ as between Commonwealth and State.

MR SILBERT:   Yes, your Honour.

BELL J:   On the Crown’s submission, it is a matter of prosecutorial choice as to whether to proceed in circumstances such as this by preferring a charge under the State Act or under the Commonwealth Act.

MR SILBERT:   It has to be, your Honour, because if we say they can operate concurrently in a situation such as this then it certainly would have been open to the Commonwealth to prosecute under the Code or, indeed, for the State to prosecute under the Criminal Code (Cth).

BELL J:   With the consequence, amongst other things that Justice Hayne identified a little earlier, if one proceeds under the State Act, there is the availability of a majority verdict which would not apply if a decision were taken to proceed under the Commonwealth legislation.

MR SILBERT:   Yes, your Honour.

GUMMOW J:   Could there be concurrent prosecution?

MR SILBERT:   For the same offence under the Code and under the State Act.

GUMMOW J:   The words “same offence” are a bit slippery.

MR SILBERT:   Let us just say the choate offence, the offence of theft, one would have thought it would be duplicitous, even though there is a small variation in perhaps the elements or the offence.  It would have been open to objection.

GUMMOW J:   But ideas of duplicity are really formulated on the one playing field.  They are not usually formulated in a federal structure, are they?  There is something extra involved, perhaps.  The extra may be section 109.

MR SILBERT:   Your Honour, intellectually, in answer to your Honour’s question whether there could be simultaneous prosecutions, one could say why not, but although instinctively there is something there that would raise something such as abuse of process and unfairness, I think the answer would be that simultaneous prosecutions could not proceed on the basis that they would be an abuse of process because effectively someone is being charged twice effectively with the same offence, and perhaps one verdict only would be open.

GUMMOW J:   Just a minute, abuse of whose process?

MR SILBERT:   Abuse of the court’s process ‑ ‑ ‑

GUMMOW J:   Which court?

MR SILBERT:   Whichever court, because the court in which it was being prosecuted under the Code would be exercising federal jurisdiction and would also be exercising State jurisdiction for certainly overlapping offences and one would imagine that there would be an objection to that.

FRENCH CJ: How does the section 80 requirement operate? Does that inform the construction of the Commonwealth statute in a way that then engages at 109, or does it operate as some independent constraining principle here?

MR SILBERT:   In my submission, your Honour, the latter.  It operates as an independent extraneous factor such that if the court is seized of a Commonwealth criminal matter, then a majority verdict under State law is not open.  But, in my submission, it does not inform the question of inconsistency under section 109.  It is a post hoc, propter hoc rationalisation in my submission that comes into the equation later on.  In my submission, it should not be used to conclude that there is section 109 inconsistency.

FRENCH CJ:   Yes, thank you, Mr Silbert.

MR SILBERT:   If the Court pleases.

BELL J:   Just one matter.  I think in Hume v Palmer (1926) 38 CLR 441 Justice Isaacs did have regard in considering a question of inconsistency to the jurisdiction to convict, having regard to the provisions of the State law making provision for a summary conviction, whereas under Commonwealth law, there was by virtue of section 80 the entitlement to trial by jury.

MR SILBERT:   Yes, your Honour.

BELL J:   I think that is at – just bear with me a moment – yes, this is at 450 and 451.

MR SILBERT: That contradicts the submission that section 80 is relevant after the event. It does not inform the question of whether there is section 109 inconsistency. My submission is that section 80 does not intrude onto the question as to whether there is section 109 inconsistency. It is a procedural matter that has to be looked at once Commonwealth jurisdiction is established.

BELL J:   Yes.

MR SILBERT:   If the Court pleases.

FRENCH CJ:   Yes.  Mr Solicitor for the Commonwealth.

MR GAGELER: Your Honours, at least by virtue of possession and control, the goods were goods belonging to the Commonwealth within the meaning of section 130.2 of the Criminal Code (Cth) so as to come within the scope of section 130.1, the principle offence of theft.

FRENCH CJ:   If that be a constitutional fact, the seizure notice is good for that?

MR GAGELER:   Well, you do not need the seizure notice for that.

FRENCH CJ:   You can just get it from the facts.

MR GAGELER: You get plenty from the facts. So far as the question of ownership might be potentially raised, that is, whether the Commonwealth might also be a person to whom the property belongs because of the operation of section 130.2(1)(b), that is the Commonwealth having a proprietary interest, the seizure notice really does not take you very far in respect of that either because if, as we have in the schedule to our submissions submitted, section 229 of the Customs Act has an automatic operation to vest property in the Commonwealth upon forfeiture, then the question of whether or not it was engaged would depend on the fact of illegal importation or the fact of concealment, as the case may be.

The case appears to be run on the basis that these goods were illegally imported and were concealed at the time of importation but those questions, in fact, were not really explored in the evidence.  Your Honours do not need to go there.  That is why we said what we said in the schedule, not in the body of our submissions.  Your Honours, can I deal with the constitutional argument by asking your Honours to turn initially to Ex Parte Gallagher 152 CLR 211 to a short passage in the judgment of Justice Mason at page 224 where his Honour said this:

It is, of course, commonplace that the doing of a single act may involve the actor in the commission of more than one criminal offence. Moreover, it may amount to an offence against a law of the Commonwealth and a law of a State. So much at least is recognized by s. 30(2) of the Acts Interpretation Act 1901 (Cth), as amended, and s. 11 of the Crimes Act 1914 (Cth) which are designed to ensure that in such a case the offender will not be punished twice where he has first been punished under State law.

The equivalent provision to section 30(2) and section 11 now is section 4C of the Crimes Act which we have given your Honours as an annexure to our submissions:

These two provisions proceed in accordance with the principle that there is no prima facie presumption that a Commonwealth statute, by making it an offence to do a particular act, evinces an intention to deal with that act to the exclusion of any other law.

His Honour then turns to Ex Parte Blacklock, and he says of Ex Parte Blacklock, indeed his own decision in Ex Parte Blacklock:

This law –

that is section 29 of the Crimes Act –

formulating the relevant rule of conduct for the protection of Commonwealth property, was held to evince an intention to deal with that subject to the exclusion of any other law.

To read Blacklock in that way is to read it as later explained by the Full Court in McWaters v Day, and to read it simply as an application of the principle in Ex Parte McLean, and that principle simply says that one looks to the intended substantive operation of the Commonwealth law and ask to what, if any, extent is it intended to be exhaustive and to what, if any, extent is it intended to be cumulative upon State law, it being easier to find a Commonwealth law being cumulative where the Commonwealth law enacts what might be regarded as a bare prohibition rather than a positive rule of conduct.  I know that the edges of that distinction can become blurred, but they are meaningful in many contexts.

If you go here to the principal offence, that is, section 131.1 of the Criminal Code, it is intended substantive operation is informed by section 261.1.  To adopt the language of Sir Maurice Byers in his argument in GMAC 137 CLR 545 at 551 – your Honours need not turn to it – at the top of the page the submission that informed the ruling of the Court, what can be said of section 261.1 is that:

It contains a rule of interpretation that its provisions –

that is the provisions of the relevant Part  –

are to be additional to the provisions of State law.

That is clear enough so far as the principal offence is concerned, an offence which, if prosecuted, would, of course, attract the operation of the introductory provisions within Part 2.2 dealing with the elements of the offence and would, if prosecuted, attract the operation, of course, of federal jurisdiction and of section 80 of the Constitution. The position is clear enough, made clear by section 261.1. If one then turns to what might be called the ‑ ‑ ‑

BELL J:   Before you turn to the conspiracy offence, can I take this up with you.  Putting to one side for a moment a blanket submission about the effect of section 261, the Commonwealth has chosen to legislate with respect to the theft of property belonging to a Commonwealth entity and in that respect, although drawing on the provisions of the Theft Act (UK), it chose to confine the offence to an appropriation without the consent of the person to whom the property belongs.  That is not a limitation that one finds in the Victorian provision.

MR GAGELER:   Yes, that is correct.  That is a policy choice that is made by the Commonwealth Parliament and, in addition, it made a policy choice that its law on that subject matter would not be exhaustive of the provisions of State law.

BELL J:   That depends upon a view about the scope of 261.1.

MR GAGELER:   Yes.

BELL J:   I am just raising the matter with you, Mr Solicitor, because it is not necessarily clear that 261.1 is an answer with respect to the substantive provision.  It may be.  I am just ‑ ‑ ‑

MR GAGELER:   Well, your Honour, if you start with the principle as stated in Ex parte McLean, it is a question of Commonwealth legislative intention.  Then what you find in section 261.1 is a very clear guide to Commonwealth legislative intention which I accept could potentially be contradicted by something else that you find in the subject matter or terms of another specific provision.  A mere difference in the elements of the offence is not, in our submission, a sufficient indication of a contrary intention.

GUMMOW J:   Section 261.1 has three operations, does it not, each of which are quite distinct?  In its last operation it is relying on the –

MR GAGELER:   Territory, the Territory’s power?

GUMMOW J:   Yes.  There is a particular - problem might not be the word – but a particular question arises as to how one compares a law made by the Parliament, on the one hand, and a law made by a legislative assembly itself acting under a law of the Parliament, is there not?

MR GAGELER:   Well, your Honour has explored that on a number of occasions, yes.

GUMMOW J:   Yes, but that is a particular field of discourse.

MR GAGELER:   Yes.

GUMMOW J:   Then there is a field of discourse where one is looking at another law of the Commonwealth, so you have two laws of the Parliament.

MR GAGELER:   Yes.

GUMMOW J:   Then the third operation of 261.1 is “any law of a State”.  The same form of words, not intended to exclude or limit the operation, is harnessed to these three rather disparate fields of discussion. 

MR GAGELER:   I would only quibble with the reference to “disparate fields of discussion”.  Certainly, the legal operation of the provision is accommodated in three different ways.

GUMMOW J:   When one is looking at one law of the Parliament as against another law of the Parliament, one is simply in the realm of statutory interpretation.  It is no constitutional question, that must be right?

MR GAGELER:   I, of course, accept that.  If one is asking ‑ ‑ ‑

GUMMOW J:   Just stopping there for a minute, is that intended to say any other law of the Commonwealth presently enacted or in the future enacted or what is it doing?  Is there any other definition that helps?

MR GAGELER:   I think not.  There is a clear enough statement ‑ ‑ ‑

GUMMOW J:   It is a very compressed form of drafting.

MR GAGELER:   It is a compressed form of drafting. 

GUMMOW J:   It is basically squeezing something to death.

MR GAGELER:   I do not have it to hand, your Honour, but we have in our written submissions given a reference to the revised explanatory memorandum.  We have given that reference in paragraph 21 of our written submissions.

GUMMOW J:   Not very helpful.

MR GAGELER:   Well, it is clear enough what is sought to be done.

GUMMOW J:   It looks like a little bit of layman’s language to me.

MR GAGELER:   The explanation is certainly layman’s language, your Honour, but the attempt to present in clear language what is, or perhaps more precisely, what is not the intention of the Parliament, in our submission, ought not be taken to have miscarried.

GUMMOW J:   Is it the intention of the Parliament that this Code prevails over a later law of the Commonwealth in some way?

MR GAGELER:   Whether or not it is that intention, your Honour, it would obviously depend on whatever the intention is that is expressed in the later law of the Commonwealth.  Of course, your Honour is absolutely right.  If you are looking at the relationship between this law and another law of the Commonwealth, then of course you are in the realms of statutory interpretation and there are principles which would guide the resolution of that question, specificity, later in time, those sorts of things, but importantly and sufficiently for my purposes, what section 261.1 is doing is expressing a Commonwealth legislative intention. 

That Commonwealth legislative intention then for relevant purposes is what informs the construction of section 131, that is, its intended substantive operation with respect to State law, that is, it should be read as intended to be cumulative upon State law using the Ex parte McLean formulation and that is sufficient for present purposes until I get of course to the conspiracy offence.  That is sufficient for present purposes because section 109 then operates upon the Commonwealth law properly interpreted in accordance with Commonwealth legislative intention.

FRENCH CJ:   Section 261.1 does not go to the construction of 131.1 in the sense that the section presents constructional choices and you choose one which does not conflict with State law against another which might.  You say it really as a statement about the relationship between 131.1 and State law.

MR GAGELER:   Your Honour is more than right in saying that section 109 is not just about the construction of the Commonwealth law. 

FRENCH CJ:   I was talking about 261.1.

MR GAGELER:   I am sorry, your Honour.  I am empathically agreeing with you.  What needs to be looked at is the intended substantive operation of the Commonwealth law, how it is intended to operate in respect of State laws and it is to that that section 261 speaks directly, in the same way as the equivalent provision in GMAC and in many other Commonwealth statutes.

Your Honours, if you then turn to what might be called the extended offence of conspiracy, that is using the language of the Criminal Code, it is, of course, to be noted that Chapter 2 contains no equivalent to section 261. You are, therefore, thrown back at least to the position as stated in Ex Parte Gallagher in the passage that I have already read to your Honours – this is at page 224 – that is, that there is no prima facie presumption that the Commonwealth provision evinces an intention to deal with its subject matter to the exclusion of any other law.

GUMMOW J:   What does that mean?

MR GAGELER:   It means that merely where you find a Commonwealth criminal prohibition and a State criminal prohibition ‑ ‑ ‑

GUMMOW J:   Why this special provision for crime?  I would have thought that the last thing you would seek to do is to expose a citizen to multiple criminal offences with attendant possibilities of abuse of process as has been described this morning, if there are concurrent prosecutions.  Is there any consideration of that in the formulation of these so‑called principles of these other cases?

MR GAGELER:   Indeed.  That is the reference in Justice Mason’s judgment in Ex Parte Gallagher to section 30(2) of the Acts Interpretation Act and section 11 of the Crimes Act, now section 4C of the Crimes Act which have the effect quite clearly ‑ ‑ ‑

GUMMOW J:   Which page in Gallagher?

MR GAGELER:   Page 224.  Justice Mason put it this way.  Those provisions, now the single provision of section 4C:

are designed to ensure that in such a case the offender will not be punished twice where he has first been punished under the State law.

GUMMOW J:   It does not say prosecuted twice.

MR GAGELER:   No.  Prosecution twice, your Honour, would be dealt with as a matter of abuse of process.  Your Honour raised that in terms, abuse of process.

GUMMOW J:   Why would it be an abuse of process?  That is the mystery.

MR GAGELER:   It may or may not be an abuse of process, but if there is a problem, it is to be dealt with under that rubric.  It is not a constitutional problem.  There would be potentially, your Honour, potentially an operational inconsistency.  Certainly there would be what might be called an operational inconsistency were there sought to be inflicted to different punishments for the same offence.  There may or may not be an operational inconsistency were there sought to be invoked at the same time two different procedures, particularly in two different courts in respect of the same offence.  Then there would be, I accept, overlaying ‑ ‑ ‑

GUMMOW J:   What about in the one court where there was a jury trial for both, but a majority verdict provision as to the State offence?

MR GAGELER:   I would need to consider the provisions carefully, your Honour, but it is potentially the case that ‑ ‑ ‑

GUMMOW J:   What I am saying is, these matters are not considered in Gallagher, it seems to me, and they need to be if we are to take it as wholly writ in any way, shape or form.

MR GAGELER:   They would need to be considered were there to be concurrent prosecutions and were it to be said that the two parallel processes gave rise to an operational inconsistency, but the mere potential for those two parallel processes, like in the Kakariki Case itself, does not give rise to the inconsistency, in our respectful submission.

HAYNE J:   Just as to 4C, can we go to 4C of the Crimes Act for a moment?

MR GAGELER:   Yes.

HAYNE J:   Section 4C(1) of the Crimes Act deals with the circumstance:

(1)      Where an act or omission constitutes an offence –

amongst other cases –

(a)     under 2 or more laws of the Commonwealth –

and it speaks of liability:

to be prosecuted and punished under either or any –

et cetera.

MR GAGELER:   Yes.

HAYNE J:   By contrast, subsection (2), which would be the provision more immediately relevant I think to these circumstances, speaks only of punishment; it does not speak of prosecution, does it?

MR GAGELER:   No, that is right.

HAYNE J:   What follows, if anything, from that observation?

MR GAGELER:   I think nothing for the purposes of my submissions, your Honour.

HAYNE J:   Questions of prosecution, would you say, as I understand it, fall to be determined under notions of abuse of process or the like, would they?

MR GAGELER:   Obviously, a possible construction of subsection (2).  No, I do not think that observation assists in the construction, your Honour.  Thinking about it, clearly enough, if a person has been punished for an offence under the law of the State, subsection (2) says that:

the offender shall not be liable to be punished for the offence under the law of the Commonwealth.

A prosecution that could not result in punishment would be a redundancy and an abuse of process.

HAYNE J:   What I am struggling with is the notion that you might have a presentment to charge the two offences in the alternative.

MR GAGELER:   Yes.  If that were to occur – and that is not the present case ‑ ‑ ‑

HAYNE J:   No, no, I understand that.

MR GAGELER:   If that were to occur, then there may be a question of operational inconsistency, your Honour.

HAYNE J:   It would seem to me that one would have to at least give close attention to questions of operational inconsistency at that point rather than to bear questions of common law, duplicity, abuse of process and the like.

MR GAGELER:   I agree entirely with what your Honour is putting, but the important part of your Honour’s observation is at that point, and it is really at the point of an operational inconsistency potentially arising that one would need to consider it carefully by reference to the two sets of procedural provisions that may or may not apply.  It is at that point that the inconsistency, if any, would arise and it would be an operational inconsistency.  The Kakariki Case of course itself says that the mere potentiality for an operational inconsistency does not allow one to anticipate those operational events and say that there is an existing inconsistency.

GUMMOW J:   But if there is operational inconsistency, 261.1 will not help you, will it, because operational inconsistencies are species of direct inconsistency?

MR GAGELER:   That is entirely right, but my point is we are not in the realm of operational inconsistency, and I accept entirely, your Honours, that if we were, then a whole range of other considerations would arise, none of which have been explored in our submissions or the submissions of anyone else in the present case.

HAYNE J:   But on the question of direct inconsistency in this case we are in the realm of determining whether the Commonwealth Parliament’s prescription of the law governing conspiracy to commit a crime against law of the Commonwealth is exhaustive.

MR GAGELER:   Yes.  Is exhaustive of what is the question.  There is no doubt that the Commonwealth’s prescription of what shall be the law of conspiracy to commit a Commonwealth offence is exhaustive of that field, that is, the law defining the offence of conspiracy to commit a Commonwealth offence.  It is, however, in our submission, wrong to read it as an exhaustive statement of what shall be the law of conspiracy in respect of the commission of what might be regarded as equivalent State offences. 

If you look at section 11.5, in our submission, starting from any lack of presumption one way or the other as to its intention to exclude State law, a position that will be sufficient to deal with this case in its entirety, you can go further, and we do go further, in our submissions, to say that insofar as an intention emerges by inference from the terms or the subject matter or context of section 11.5, then the intention that emerges by inference, in our submission, is that it is to operate distributively in the same way as the principal offence to which it relates in any particular context, that is to say, it is to be cumulative upon and supplementary to the principal Commonwealth offence in the same way as the principal Commonwealth offence in this case is supplementary to and cumulative upon State law.

You get that really just from the terms of the provision itself, subsection (1), subsection (7) and subsection (7A) all of which tie the intended operation of the separate offence of conspiracy closely to the principal offence to which it relates.  You get it in addition, in our submission, from the heading to Part 2.4 which is part of the Act, made part of the Act by section 13(1) of the Acts Interpretation Act and you get it also from the purpose of Chapter 2, particularly the second sentence of section 2.1. None of those indications are in themselves, we accept, necessarily compelling but all of them, in our submission, are pointing to a Commonwealth intention to make the relevant offence of conspiracy under section 11.5 cumulative upon and operative in the same way as the principal offence to which it relates, here section 131.1.

HEYDON J:   Is that an argument that leads us back to section 261.1?  Is that the purpose of your argument?

MR GAGELER:   It does lead you back there.  Yes, your Honour.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Solicitor for South Australia.

MR HINTON:   If the Court pleases.  South Australia adopts the submissions of the Commonwealth and can I make two very brief submissions this morning that may assist your Honours’ mind of the questions you have asked.  With respect to the issue of operational inconsistency, some of the issues teased out by your Honours this morning may be asked, although it is not a perfect fit, conceded, but may be answered rather in the authority of Pearce v The Queen (1998) 194 CLR 610.

It was a case concerning New South Wales offences that had overlapping elements and the question of the ambit of the pleas in bar.  In the course of dealing with the pleas in bar, this Court considered that they should be confined to offences that had the same elements.  Now in part, in drawing that line, this Court did so in the knowledge that there was, always in the background, the ability to resort to an abuse of process, where whilst the elements of one offence are not wholly included in the other, there is a degree of overlap such that it would be an abuse of the process of the Court to prosecute the person twice for the same…..  The case also deals with principles as to double punishment where there are overlapping elements between offences.  As I say, not a perfect fit, but it may assist in some respect with some of the issues that arise on the question of concurrent prosecutions.  The only other submission ‑ ‑ ‑

GUMMOW J:   The problem is, Mr Solicitor, in a way Pearce is an example of offences on the one stratum, as it were.  There is a question of, as it were, ducking - to use a colloquialism - section 109 questions where you have a federal stratum simply by saying well, abuse of process will fix it all up, that not being a constitutional doctrine, obviously, and section 109 having that character.   You see my problem?

MR HINTON:   I hesitate to say yes, but I think so, your Honour.  I hesitate more because it is my inadequacy.  At the operational level ‑ ‑ ‑

GUMMOW J:   Section 109 is designed to provide – one does not like using the word “guarantee” – but some sort of protection to citizens as well as adjusting the gladiatorial combats between Commonwealth and the State legislatures.

MR HINTON:   Agreed, your Honour, but it does not necessarily exclude the interests of the two polities in prosecuting for the same conduct and those interests may be different.  The Commonwealth, of course, its primary interest is to support its laws, whereas at the State level, the broader interest in some respects is the preservation of the Queen’s peace.  The two are not necessarily consistent providing a good policy reason as to why you would potentially leave that area for the State to operate in, where its purpose goes beyond just protecting Commonwealth property so that the Commonwealth can achieve its immediate purposes. 

That is not to say that the Commonwealth does not have an interest in protecting the Queen’s peace, but that is the primary interest of a State criminal law.  It is easier to conceive of a situation where the State criminal law would want to prosecute an offender for stealing property belonging to the Commonwealth for reasons that are not just to deal with the protection of the Commonwealth, or Commonwealth public servants, or Commonwealth business, but broader in terms of the interests of community safety, community protection within that particular polity.

GUMMOW J:   You may be right.  Then the question is how does 109 speak to those two sets of interests?

MR HINTON:   I adopt the submissions of the Commonwealth Solicitor‑General.  It looks to the intention of the paramount legislature.  But we can come with no presumption and in part my learned friend, Mr Danos’ submissions which rely upon – sorry, your Honour.

GUMMOW J:   Another ducking operation, to some extent, is to concentrate on section 109 as tied up with manifestations of Commonwealth parliamentary intention.  The parliamentary intention idea is designed to expand section 109.  That is where the “covering the field” comes from.

MR HINTON:   Yes, your Honour.

GUMMOW J:   It is said you can pull it back to some extent, if you do not have an intention to cover the field.  None of that is talking about so‑called direct or operational inconsistency.

MR HINTON:   No, your Honour.  They operate against the background of the validity of the two laws potentially conflicting being determined.

FRENCH CJ:   In the end, is not the statement of intention though a statement about the nature of the legislation to which that intention is being attributed?  Whether it is comprehensive or not ‑ ‑ ‑

MR HINTON:   Question of construction, yes, your Honour.

FRENCH CJ:    ‑ ‑ ‑the statement of intention is, in a sense, an “after the event” declaration about the character of the legislation.

MR HINTON:   Your Honour is quite right, yes.

FRENCH CJ:   Section 261.1 cannot change the character of the legislation.

MR HINTON: Agreed, and the Commonwealth Solicitor‑General has already made that concession. It is, though, an expression or a guide to be taken into account. Can I make one submission with respect to 261, and that is perhaps to offer an explanation as to why we do not find that it applies to Chapter 2 of the Criminal Code (Cth), and it is this. Chapter 2 applies beyond the offences created by the Criminal Code itself. It applies the offences of intents, incitement and conspiracy to the laws of the Commonwealth. So offences created in other statutes of the Commonwealth are potentially, if subject of an agreement, conspiracies pursuant to section 11.5 of the Criminal Code and the substantive provision in the other law of the Commonwealth.

The other law of the Commonwealth may be one where the Commonwealth or the paramount legislature specifically wants to exclude the operation of a State law.  For that reason one can see why it would equally flow on to the conspiracy offence itself.  The core submission is that the conspiracy, the intent, the incitement, should follow the contours of the substantive offence.  If the substantive offence is not one that excludes a State offence operating with respect to the same conduct then a conspiracy to commit that substantive offence should likewise follow suit, whereas if the substantive offence of the law of the Commonwealth does then a conspiracy to commit that offence should follow suit.

For that reason, to put the equivalent of section 261 in Chapter 2 would be fraught with difficulty for the Commonwealth were it to create an offence that it wanted to operate to the exclusion of any State offence. If the Court pleases, those are my submissions in addition to those produced in our outline.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Danos.

MR DANOS:   This Court, your Honours, has regularly said that the individual should not be charged with conspiracy and the substantive offence and I cite the case of Hoar (1981) 148 CLR 32. That has been something that this Court has said on more than one occasion and particularly in that instance so we would submit that that issue ought not to cloud what we submit in this particular instance is the primary proposition that what has occurred here is that there has been a charge of conspiracy and that charge of conspiracy was brought under the State legislation when we say it ought to have been brought under the Commonwealth legislation and that the Commonwealth legislation is directly inconsistent with the State legislation on the question of conspiracy. Those inconsistencies are such that it brings into operation the effect of section 109.

We would also submit, your Honours, that it is an inappropriate extension of section 261 of the Code to seek to import that into section 11, as has been sought to be argued before the Court as we say. The essential aspect of why this particular appellant was charged with conspiracy was because there was a dearth of evidence indicating his actual participation in the substantive offence. That resulted in the conspiracy charge being laid and it related to what we would submit a conspiracy, and the essential elements of that was obviously the agreement and then with that is the completion – that brings about the completion of the offence.

When my learned friend Mr Silbert mentioned that one could never imagine a situation, that highlights, in our respectful submission, the very significant difference between the State legislature and the Commonwealth legislature in that with modern technology it would be very simple and very clear where there would be, for example, telephone intercepts, any other sort of monitoring of conversations between individuals.  In Victoria, if that occurred in relation to - once there had been agreement reached in relation to that particular criminal unlawful act, the offence would be completed, whereas under the Commonwealth legislation until an overt act is actually ‑ ‑ ‑

FRENCH CJ:   We have that from your written submissions in‑chief, I think.

GUMMOW J:   If you were successful – and looking at these revised orders in your amended notice of appeal – in getting the presentment quashed and all that then followed from that, what would be left with your special leave application?

MR DANOS:   Nothing – other than what we have said in our submission that we potentially, your Honour, face the position that we could be prosecuted under the Commonwealth legislation and then we would be having to deal with all of the aspects that the Court has wanted to hear argument on in relation to the special leave application.  We have submitted that this Court ought deal with those issues because they raise important matters of principle which in fact are devoid of authority.

BELL J:   That may be so but if the presentment is quashed they may raise important matters but somewhat in a vacuum.

MR DANOS:   Yes.  I cannot argue that, your Honour; that is correct.  Nevertheless, they are only in a vacuum in the sense that there is no actual presentment, but we know – it is not as though your Honours are dealing with a hypothetical situation; we know exactly what has occurred previously and we know the issues that were raised and the consequences of those issues.  So whilst it is technically in a vacuum in the context of there being no presentment or no indictment, nevertheless the issues are there and they have been aired in court.

There is a judgment of the Court of Appeal, for example, which talks about most of these matters.  It speaks about these matters.  So in that sense, even if the conviction is quashed – the presentment is quashed, I suppose one of the consequential orders has to be that the judgment of the Court of Appeal is set aside.  That would have to follow.

FRENCH CJ:   That is what you are seeking.

MR DANOS:   Yes, it is.

FRENCH CJ:   All right.  Thank you, Mr Danos.

MR DANOS:   Can I finally just direct your Honours’ attention to one of the matters that was raised in relation to Gallagher’s Case and simply highlight footnote 10, which we submit answers ‑ ‑ ‑

GUMMOW J:   Footnote 10 of?

MR DANOS:   Of our reply.  Can I simply highlight to the Court what Chief Justice Gibbs said in Winneke, particularly at page 218 in the paragraph in the middle of the page.  I direct the Court to that paragraph:

If the two laws are made for the same purpose – e.g. if they prescribe substantially identical rules on a particular subject but with different penalties for contravention – it will be easy to conclude the Commonwealth law covers the whole subject‑matter, and that there is an inconsistency -

It then cites Hume v Palmer.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Danos.  The Court will reserve its decision on the appeal and otherwise adjourn the special leave application.  The Court will adjourn until 10.15 tomorrow morning.

AT 11.41 AM THE MATTER WAS ADJOURNED