Dihm v The Queen

[2002] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B42 of 2001

B e t w e e n -

GEOFF JOHN BROGDEN, PAUL ANTHONY BARTON, BRETT JOHN EASTWELL and KEVIN JOHN CONNELL

Applicants

and

COMMISSIONER OF THE POLICE SERVICE

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 2.07 PM

Copyright in the High Court of Australia

MR J.S. DOUGLAS, QC:   May it please the Court, I appear on behalf of the applicants with my learned friend, MR J.C. DAVIDSON.  (instructed by Prisoners’ Legal Service Inc)

MR R.A. MULHOLLAND, QC:   If the Court pleases, I appear with my learned friend, MR A.J. KIMMINS, for the respondent.  (instructed by Queensland Police Service)

GLEESON CJ:   Yes, Mr Douglas.

MR DOUGLAS:   The second special leave point we have identified, in effect, is that where it is difficult to discern the interpretation that will best achieve the purpose of the Act, because the Act is ambiguous about the relevant purpose or purposes, then the common law presumptions against interference with personal liberty should apply.

It is apparent from the reasons of the Court of Appeal that two of their Honours expressed doubts about the drafting of the relevant provisions.  Chief Justice de Jersey said at paragraph [19] on page 21 of the application book that:

These provisions should have been drafted with more precision.  A reader of legislation of the significance of the Police Powers and Responsibilities Act should not have to ponder and weigh competing considerations in this way.  The meaning should be irrefragably clear.

Similarly, Mackenzie J said at paragraph [35]:

When legislation conferring a power which encroaches on common law rights is drafted the objective should be to draft it in terms which, as far as possible, express the scope of the power in the clearest possible terms.

GLEESON CJ:   Mr Douglas, what do you say about the point that is made on page 45 of the application book in paragraph 11 of the respondent’s submissions concerning what I might call the statutory context?

MR DOUGLAS: It really begs the question of what the complete statutory context is, which should include a context which includes section 659 of the Criminal Code which deals with indictable offences dealt with summarily and deems them to be simple offences.  So that when you are talking about indictable offences upon commencement, appearance before a court, on a finding of guilt, one still has to look at it in that context and also in the context that the Parliament clearly knew of a technique to make its purpose “irrefragably clear”, to use the Chief Justice’s words, which was adopted in section 50 of the Drugs Misuse Act, namely to specifically say that section 659 does not apply to offences under this Act.

McHUGH J:   It seems to me that 307 may be the strongest point against you because it says it is enough to take a DNA sample, that there is “a proceeding for an indictable offence”.  Your argument is that although 307 would permit the taking of a DNA sample at the time of charge for an indictable offence, if that is not done and the accused is then convicted but on the basis that it is deemed to be a summary offence, it cannot be done.

MR DOUGLAS:   If you look at section 307 in its entirety, your Honour, it includes other safeguards for personal liberties ‑ ‑ ‑

McHUGH J:   I know.  You have to go before a magistrate, have you not?  You have to go – no, it is:

the commissioned officer must have regard to the rights and liberties ‑ ‑ ‑

MR DOUGLAS:   Yes, and there are various safeguards built in in respect of what the commissioned officer can do and what he has to take into account.  So that, in our submission, is not determinative of the matter.  If one looks at section 310, for example, which we have referred to in our written submissions, it is headed “Taking DNA sample after conviction of adult” and it is said to apply:

if a court finds an adult guilty of an indictable offence.

One would have thought that that is a clear case where section 659 should apply because a finding of guilt there is, in effect, equivalent to a conviction and section 659 applies to those circumstances. So that if it applies to section 310, one would have thought that it should also apply to section 311. Now, your Honour can point to section 307 as well and perhaps section 309 but, in our respectful submission, all that that does is to show that the purpose that Parliament had is not clearly discernible from this legislation and if you look at the sections of the Act that purport to describe the purposes, they do not help at all.

McHUGH J:   I suppose the other thing that you can put is that 307 applies prospectively, whereas the section with which you are concerned applies to people who have been convicted.

MR DOUGLAS:   That is so.  Another pointer perhaps to the lack of an ability to truly discern the purposes is section 316(1)(c) which does assist in respect of section 307, where say, for example, you have a sample taken

under section 307 which does not end up in a person being found guilty of an indictable offence - we would say on indictment - then in those circumstances section 316(1) provides that the sample must be destroyed.  So that looked at overall, the statutory scheme cannot be said clearly to have a purpose that must apply to indictable offences no matter how prosecuted.

GLEESON CJ:   Does that cover what you wanted to say about the question of the common law presumption?

MR DOUGLAS:   Yes.  In our submission, if that situation is arrived at where you cannot clearly discern the purpose, the common law presumptions should apply.

GLEESON CJ:   Perhaps we might hear what Mr Mulholland has to say.

MR DOUGLAS:   Thank you, your Honour.

MR MULHOLLAND:   Your Honours, in our submission, the construction preferred by the Court of Appeal was one reasonably open on the statute and that having considered the scheme of this particular part of the Act dealing with the taking of DNA samples by compulsion and taking into account the interference with the personal liberty of the subject, the court held to a construction which, in our submission, is quite clear and it is consistent with the approach of this Court in Ross.

Going to the point of the clarity of these provisions, we submit that it is clear because when the scheme of this part of the Act is considered, it is a scheme which relates to the commission of indictable offences.  That can be seen most clearly by section 316 of the Act.  That is the provision which provides for the destruction of DNA samples in certain circumstances and what it does not provide for is for the destruction of DNA samples in a situation where a person has been summarily convicted of an indictable offence.

It is clear, we submit, that the other provisions dealing with the stage at which the DNA samples can be taken, namely the commencement of the proceedings, on appearance in court, on a finding of guilt, at all of those stages it would be possible for a DNA sample to be taken in relation to an indictable offence irrespective of whether it was being tried summarily or on indictment.  Section 310 has been specifically referred to but that provision, acknowledging what the heading of the section says, which has to be taken into account, that is, “Taking DNA sample after conviction of adult”, in clear terms it says:

This section applies if a court finds an adult guilty of an indictable offence.

In that situation also, we submit it is quite clear that, even if being dealt with summarily, a person found guilty of an indictable offence can at that point by an order of the court have a DNA sample required.

Now, in that situation then, if it be the case, as we submit it clear to be, that a DNA sample can be required in relation to indictable offences, then the situation is – and I might say section 316 does not make any exception in relation to – and I am referring here, your Honours, to section 316(1).  It makes no reference at all to the case of a person summarily convicted of an indictable offence.  That is to say that it is not provided that in relation to someone summarily convicted of an indictable offence that a DNA sample which has been taken must be destroyed. 

That means that the situation is this, that if the construction which the applicants place upon the provision is to be accepted, one can have the very surprising result that a person who is being proceeded against summarily for an indictable offence can have a DNA sample required of that person and ‑ ‑ ‑

McHUGH J:   But only before conviction, because the hypothesis against you is that you cannot get the sample after the person is convicted as if it was a summary offence.

MR MULHOLLAND:   Your Honour, the argument is, as we understand it, that section 310 would not permit a DNA sample to be taken in relation to a person.

McHUGH J:   That is right, yes.

MR MULHOLLAND:   In our submission, on the terms of the section it is clear that if the person is found guilty the DNA sample can be taken.  The situation would then be that any – because it refers to if a person is found “guilty of an indictable offence”, irrespective of whether it is a summary determination or otherwise.

McHUGH J: Yes, but section 659 says that:

the conviction is to be deemed a conviction of a simple offence ‑ ‑ ‑

MR MULHOLLAND:   Yes, your Honour, but none of these provisions talk about a conviction.

McHUGH J:   I know they do not, but what does 659 mean otherwise that it is talking about?  Is not “find” in 310 equivalent to “convicted”?  Would it have any difference if it said, “This section applies if a court convicts an adult of an indictable offence”?  Does not “find an adult guilty” equal “convict a person”?

MR MULHOLLAND: Your Honour, the scheme of the legislation, as we say, is dealing with commission of indictable offences. That is our submission. Your Honour asked what room does section 659 have to do. It is in the area of consequences of a conviction.

McHUGH J:   Yes, but if you apply literally what Sir Garfield Barwick said in Ross’s Case, it is dead against you, is it not?  He said:

For the purposes of a right of appeal, the conviction is of an indictable offence:  for the purposes of punishment, the conviction is deemed to be a conviction for a simple offence. 

Now, are not these people serving sentences as punishment for a summary offence?

MR MULHOLLAND: We submit the situation is, your Honour, that the statutory nature of the offence is not altered by the conviction summarily of an indictable offence. It remains an indictable offence. The person has committed an indictable offence. For certain purposes, as section 659 says, the conviction must be regarded as a conviction for a simple offence but ‑ ‑ ‑

McHUGH J:   There may be another answer to what you say, even if you accept entirely what you say about 310, and that is to say that 310 has the safeguard – it is the court that orders the person to take the DNA sample, whereas under 311 it is done by the commissioner and general manager of the prison.  It is a large proposition to say that the Executive Government can hold a citizen and infringe that person’s privacy and bodily integrity.

MR MULHOLLAND:   It is, however, understandable that a distinction is made for someone’s sentence to imprisonment for an indictable offence, because at that point of time guilt has been determined.

McHUGH J:   But only as if it was a summary offence.  The thesis of this legislation is that people who are convicted of summary offences are not to have DNA samples taken from them and 659 says that if you are convicted of an indictable offence summarily it is to be regarded as a simple offence.

MR MULHOLLAND:   The submission is, your Honour, that these provisions are, when considered as a whole, obviously directed at the commission of an indictable offence.

McHUGH J:   I know that and your argument may well succeed in an ultimate appeal, but it seems to me the case raises some important questions of affecting the liberty of the subject.

MR MULHOLLAND:   Can I then just come back to the point, which I will not labour, that there is the result that a person who is being proceeded against summarily for an indictable offence can have DNA samples taken, but a person sentenced to imprisonment for an indictable offence determined summarily cannot.

McHUGH J:   Yes, I know, but the difference is, is it not, that beforehand you have to take into account a number of considerations, including the public interest and the rights and liberties of the person, but once you get into 311 territory you have a statutory right to take the sample.

MR MULHOLLAND:   The Chief Justice dealt with the point your Honour was raising as to the fairness provisions, as it were, in relation to these, which applied so far as an earlier stage of the proceedings is concerned, at paragraph [13] on page 20 of the record where his Honour said:

Mr Davidson, who appeared for the appellants, pointed to the inclusion of requirements to ensure fairness in the process of sampling prior to conviction, requirements which find no comparators in relation to sampling following upon a finding of guilt. He submitted in effect that this justified a narrow or strict interpretation of s 311, one which embraced the deeming effect of s 659. No doubt it was however perceived that upon an adjudication of guilt, it would ipso facto not be unreasonable in the public interest to require the provision of a sample.

McHUGH J:   That is exactly what I put to you but it does not answer the proposition that I put to you, that they are dealing with two different subject matters.  Under the first you have to consider such matters as the public interest and the rights and liberties of the subject before you can require a DNA sample but, if you are convicted of an indictable offence, then you have no right.

MR MULHOLLAND:   Your Honours, may we then simply reiterate our reliance upon Ross’s Case not only in the judgment of Sir Garfield Barwick, who regarded the consequences as being consequences related to punishment, but also in the judgment of Sir Harry Gibbs which referred to the adverse consequences.  His Honour referred to “the adverse consequences of a conviction” where the statute had referred to “a conviction”.

McHUGH J:   I must say I rather think Ross is against you.  You talk about adverse consequences.  Surely this is an adverse consequence that you are protected against.

MR MULHOLLAND:   Can I take your Honours to the particular passage in Ross’s Case.  The passage is at page 440 commencing at about point 6:

On any view, s 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s 673 expressly confers. This does not mean that s 659 itself is deprived of effect; that section has ample room for operation – eg, in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence.

McHUGH J:   That is the point.  I must say on a first reading I thought these cases were dead against you.

MR MULHOLLAND:   Your Honour, in our submission, the statute here, and the statute that we are interpreting, is the Police Powers and Responsibilities Act.  Section 311 of that statute says nothing at all about conviction.

McHUGH J:   I know, and the Chief Justice made that point in paragraph [20] of his reasons.  It was an important point that the Chief Justice made.

MR MULHOLLAND: Your Honours, in our submission, the question of interpretation is of the words “serving a term of imprisonment for an indictable offence”. In order to take the construction which our opponents would have of this provision, it means reading into the section, in our submission, words which do not appear there, and that section 659 of the Criminal Code is one dealing specifically with the consequences of a conviction of an indictable offence, providing that that should be regarded as a summary conviction.

McHUGH J: If you ask the bystander who had read section 659 were these people serving a sentence for an indictable offence, the answer they would get is, “No, they’re serving a sentence for a simple offence”.

MR MULHOLLAND:   Not if it is to be regarded, your Honour, as dealing with the commission of an indictable offence.  Those are our submissions.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

We are going to adjourn for a moment to reconstitute.

AT 2.30 PM THE MATTER WAS CONCLUDED