Doyle v The Queen

[1999] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 1999

B e t w e e n -

COLIN PETER DOYLE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 10.00 AM

Copyright in the High Court of Australia

MR D.J. PORTER, QC:   If the Court pleases, I appear for the applicant.  (instructed by the Legal Aid Commission of Tasmania)

MR T.J. ELLIS:   If the Court pleases, I appear with my learned friend, MR M.P. SHIRLEY, for the respondent.  (instructed by the Director of Public Prosecutions (Tasmania))

GLEESON CJ:   Thank you.  Yes, Mr Porter.

MR PORTER:   Thank you, your Honour.  If the Court pleases, firstly, I would generally refer to and rely on the written submissions in support of the application dated 9 February 1999 which your Honours will find at pages 60 to 71 of the application book.  The special leave questions are set out at pages 60 and 61.  The first part of this application relates to what I submit is a failure by the Court of Criminal Appeal of this State, not only in this case but historically, to apply the basic principle governing the approach to Crown appeals against sentence as of right, those principles deriving from the cases of Griffiths, Malvaso and Everett.

The application also raises, if your Honours please, the question of the erosion of that basic principle which appears to be taking place in one other jurisdiction.  I submit to your Honours that there is a need, with respect, for this Court to affirm the application of the principle to appeals as of right and to clarify authoritatively the extent of its application.

GLEESON CJ:   Mr Porter, as I read the reasons for judgment in the Court of Criminal Appeal, the issue that assumed most prominence is one that is not of present significance, and that is to say the question of the power to backdate sentences.  Most of the reasons for judgment seem to have been devoted to that issue and they dealt relatively briefly with other matters.  The fact that they dealt briefly with other matters does not mean they ignored the relevant principles, does it?

MR PORTER:   The first point I wish to make in response to that is that the question of the power to backdate sentences was not part of the original appeal in the sense that the ground was the sole ground of manifest inadequacy.  The question of the power to backdate sentences arose almost as a side issue, if you will, during the course of argument.

GLEESON CJ:   I understand that.  It arose obviously in the context of deciding what they should do about the matter.

MR PORTER:   Yes, that is precisely right, your Honour.  The Crown was asked what it would in fact be content with and then it got into the debate about backdating it, but the more particular answer to your Honour’s question is that the failure to address the particular principle which is at the heart of this application, that is the failure to mention it in the judgments, does not, in my submission, mean that it was not properly addressed or at least the case did not properly proceed on the correct principles.  Now, the majority in this case consisted of two judges who had constituted the majority in the other cases referred to in the written submissions in which the principle has been abandoned in favour of the concept that double jeopardy which underpins the principle, the Everett principle as I have called it in the written submissions, is properly recognised only in the re‑sentencing process once the appeal has been resolved in the Crown’s favour and does not govern the determination of the appeal itself.

It is to be assumed, and I would submit it is apparent, with respect, your Honours, that the majority in this case has simply proceeded on that basis as earlier established.  So, what we are concerned with here is a patent inconsistency in approach by the Court of Criminal Appeal in this State.  As I say, in a number of cases, the majority view, mostly consisting, if not exclusively, of the two judges who constituted the majority of the court in this case, has been that the Everett principle does not apply to an appeal where leave is not a prerequisite.  There is a patent inconsistency in approach demonstrated by the cases set out at ‑ ‑ ‑

GLEESON CJ:   I am looking at page 45 in the paragraph commencing at line 31 beginning with the words, “The Crown has appealed”.

MR PORTER:   Yes.

GLEESON CJ:   This is a rather unusual case in the sense that, as I understand it, the Crown said the sentence below was manifestly inadequate but the Crown would not be complaining about this if a term of imprisonment of some length were imposed, even if, for example, it were ultimately suspended.  It was the denunciatory appearance or lack of denunciatory appearance of the sentence that was troubling the Crown.  Do I understand that correctly?

MR PORTER:   That is true in part, with respect.  If I could ask your Honours to go to page 31 of the application book and it is at that point that the matter to which your Honour the Chief Justice just made mention arose.  At line 491 you will see that his Honour the Chief Justice raises that point and his Honour postulates a six month sentence backdated by the two months and four days that the applicant had spent in custody.

GLEESON CJ:   Am I right in thinking that what ultimately happened to your client was that he was subjected to a sentence. which was suspended, so that he served no time in custody additional to the time that he had already spent?

MR PORTER:   That is correct, your Honour.  There was a divergence of views between the Chief Justice and Justice Wright and the compromise was a sentence of four months imprisonment, wholly suspended on conditions, and he was made subject to a probation order for a period of two years.  Now, there is about one year left to run on the probation order and the suspension. 

GLEESON CJ:   Yes.  It just occurs to me that in a case that was all about the appearance of the form of the sentence, the Everett issue to which you refer is not thrown up in a very satisfactory form.

MR PORTER:   I would submit, with respect, it is and it is for two reasons.  The reference further on down that page commencing at line 505, the Chief Justice says:

You’re only really only concerned with the cosmetic aspects of the record are you?

That was the point your Honour was making a moment ago.  The Crown there has disavowed that proposition.  It says, “Well, no, your Honour, we’re not”.

So, one comes back to the sole ground of manifest inadequacy, and my submission to your Honours is that applying the proper Everett principle it was incumbent upon the Crown to show that the inadequacy was so grave as to constitute an aberration, error in point of principle in accordance with the Everett  principle and that the Court of Criminal Appeal should have decided on that point.  So, again, the question of the cosmetic nature of the record became a bit of a side issue but the heart of the matter remained manifest inadequacy.  It was incumbent upon the Crown to establish the Everett principle had been satisfied and, for the reasons I have earlier outlined, it cannot be said that the Court of Criminal Appeal has properly applied the principle.

In this application, if I may move on, your Honours, the Crown in its written submissions concedes that the Everett principle is applicable to appeals as of right.  That is at page 75, paragraph 3.1, but, demonstrably, in my submission, this application has not occurred in cases prior to this case, in this case, for the reasons I have just outlined, and in fact since.  In this State, if the Court pleases, the impugned approach is seen from the case of Meers where again the majority consisted of the Chief Justice and Justice Wright.  There was an express dissent as to this point from Justice Slicer and the majority view, which is contrary to the Crown’s ‑ ‑ ‑

GUMMOW J:   What is the general point of public importance, Mr Porter?  Apart from the details of this particular case, what are the principles of general public importance that are involved?

MR PORTER:   Because of the patent inconsistency of approach, which I submit is plain from the cases referred to in the submissions, patent inconsistency of the Court of Criminal Appeal in this State, there is nowhere else to go but this honourable Court to rectify the divergence of approaches.  Now, it is not restricted to this State.  If your Honours have a look at the submissions in relation to the South Australia case of Police v Cadd there is, at the very least, a majority view, if not, if one draws a line through the five judgments, a unanimous view that the Everett principle does not apply to non‑custodial sentences.  So, to answer your Honour’s question, the basic important principle is to reinforce in this State the application of the Everett principle and to clarify authoritatively whether it applies to all sentences or whether there are any exceptions to the application of the principle, depending upon the nature of the sentence imposed.

I do not need to perhaps labour the point as to the inconsistency of approach in this State.  I have made reference in the submissions to the case of Harland-White, in which Justices Crawford and Slicer applied what is conceded to be the correct principle, and the case of Woore where Justices Underwood and Zeeman again applied the appropriate principle.  Justice Wright agreed in the result.  He did not discuss the issue but one would assume that he followed what he had earlier said in the other judgments.  So, there is that patent inconsistency.  The point has a national aspect arising from Police v Cadd in South Australia and, as I say, the fundamental point is to correct the inconsistency in this Court and to clarify for the country whether there is any limitation on the application of the Everett principle.

The second part of this application, if the Court pleases, relates to the proper principles to be applied when determining a Crown appeal based on a sole ground of manifest inadequacy.  This was the point of what I would submit is a cogent and compelling dissent of Justice Crawford in this case.  This came to be known and is referred to in the papers as the “nefarious objective” issue.  The majority determined the ground on the basis, it is submitted it is plain from the judgment, of their view of the facts and not the factual basis upon which the trial judge proceeded.

GLEESON CJ:   Where did the majority refer to “nefarious purpose”?

MR PORTER:   It arises in the judgment of – perhaps I could firstly take your Honours to the dissenting judgment of Justice Crawford at page ‑ ‑ ‑

GLEESON CJ:   Now, I understand the way Justice Crawford sought to characterise the majority judgments but I would like you to show us where the majority judgments bear that character.  Is there any reference in the majority judgments to “nefarious purpose”?

MR PORTER:   Perhaps not in strict terms, your Honour, but, as I say, the issue came to be known as the “nefarious objective purpose” because of the way the debate proceeded in the Court of Criminal Appeal.  That is certainly the terminology of Justice Crawford, but if I can ‑ ‑ ‑

GLEESON CJ:   Yes.  There is a problem in attributing to judges in their reasons for decision lines of thinking that might be thrown up for testing in the course of argument but which are not actually set out as part of their reasons for decision.  The most that can be said in this regard is, is it not, that the majority judgments characterised your client’s conduct as “predatory”?

MR PORTER:   That is correct, your Honour, yes.

GLEESON CJ:   Well, now, how else could it be characterised?

MR PORTER:   I accept what your Honour says as to reading too much into what may arise from argument but it is my submission that looking at the way in which that issue developed when the conduct is described as “predatory” at page 39 of the Chief Justice’s judgment and then, more particularly, in the judgment of Justice Wright, it is my submission that it is plain it is that particular factual issue which is being discussed.  Now, that is certainly the way in which the dissenting judgment proceeds.

GLEESON CJ:   But, there is nothing in the majority judgments, is there, that disagrees with the findings of primary fact by the judge at first instance?  There is simply a characterisation of the conduct found by the primary judge as predatory, and it was predatory, was it not?

MR PORTER:   The trial judge, I think, your Honour, confined it as potentially predatory which was accepted by all parties at the litigation hearing – “potentially predatory” because, as your Honours will appreciate, there was the problem caused by the failure of the jury to agree as to the final assault, that was by physically assaulting the complainant, the subject of charge 2.  It was described as “potentially predatory”.  Can I answer your Honour’s question by saying not explicitly, I accept certainly, but inferentially, I would submit that the conclusion that their Honours were in

fact dealing with that issue in a way contrary to the way the trial judge dealt with it, and, in fact, contrary to the way Justice Crawford dealt with it is one that is inescapable on the whole of the material.

In relation to the application, generally, I would submit that the question of the Everett principle alone would justify a grant of special leave and I would submit that grounds have been made out accordingly.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Porter.  We do not need to hear you, Mr Ellis.

MR ELLIS:   May it please the Court.

GLEESON CJ:   Having regard to the limited basis upon which the Crown appeal was presented and the nature of the orders finally made by the Court of Criminal Appeal, the present case does not raise what is said to be the issue of general importance concerning Crown appeals against sentence.  Further, we are not persuaded that the majority in the Court of Criminal Appeal departed from the factual findings made by the sentencing judge.  The application is refused.

AT 10.18 AM THE MATTER WAS CONCLUDED