Elliott v The Queen

[2007] HCATrans 538

[2007] HCATrans 538

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S215 of 2007

B e t w e e n -

MATTHEW JAMES ELLIOTT

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S218 of 2007

B e t w e e n -

BRONSON MATTHEW BLESSINGTON

Appellant

and

THE QUEEN

Respondent

GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 SEPTEMBER 2007, AT 10.06 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court please, I appear for the appellant, Elliott, with my learned friends, MS S.E. PRITCHARD and MS J.K. TAYLOR. (instructed by Giddy & Crittenden)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS R.W. BURGESS, for the appellant, Blessington.  (instructed by Legal Aid Commission of NSW – Sydney)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MS A.M. MITCHELMORE and MS J.S. CALDWELL for the respondent in both appeals and for the Attorney-General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor for New South Wales)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth of Australia :   If the Court pleases, in both appeals I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General of the Commonwealth intervening in support of the respondent.  (instructed by Australian Government Solicitor)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR P.J. DAVIS, SC, for the Attorney-General for the State of Queensland who intervenes in this matter.  (instructed by the Crown Solicitor for the State of Queensland)

GUMMOW J:   Now, there are a couple of preliminary matters.  Mr Game and Mr Walker, have you divided the argument between you?

MR WALKER:   We have.

GUMMOW J:   So there is no duplication to any significant degree?

MR WALKER:   No.  I hope there will be none.

GUMMOW J:   All right, thank you.  So we would hear – and as between you which order should we pursue?

MR WALKER:   If it please the Court, Mr Game and I have agreed that I should start and that he should follow, dividing the topics as we have agreed, about which I will tell your Honours.

GUMMOW J:   Right, and then we will hear from New South Wales, then the Commonwealth, then Queensland, and then reply.  Should we finish comfortably today?  I would have thought so.

MR WALKER:   Both normatively and predictably, yes.

GUMMOW J:   There is one other matter I should indicate.  As you will see, we have listed the case for hearing before five of us today, and you will also be aware that the appeals require determination of issues of statutory construction.  Constitutional issues may also require resolution.  As just indicated, we will proceed today to hear full argument on all the issues and we will reserve our decision.  If, upon that consideration, it appears that it is necessary to resolve the constitutional issues, the Court may then take such further steps as it may be advised and it will notify the parties accordingly, there being only five at the moment here.  But proceed with full argument today.

MR SEXTON:   There is just one matter ‑ ‑ ‑

GUMMOW J:   You have a notice of contention which is the other preliminary matter.

MR SEXTON:   Yes, summons filed to seek leave.

GUMMOW J:   Yes, is that opposed?

MR WALKER:   No.

GUMMOW J:   Very well, you have that leave.  This is on the summons filed on 19 July 2007.

MR SEXTON:   In each appeal, that is right.

GUMMOW J:   Yes, Mr Walker.

HEYDON J:   Mr Walker, could I ask a procedural question?  Before the Court of Appeal both of the present appellants put on applications to reopen the 1992 appeal and an application for extension of time within which to appeal.

MR WALKER:   Yes.

HEYDON J:   To some extent that position is maintained in the written submissions, but in the special leave argument you said that you were only arguing for leave to reopen.

MR WALKER:   Yes, and that is an inaccurate statement of the benefit I seek to obtain from the argument that Mr Game will be presenting.  That is, I do seek to take advantage in what I will call a new appeal, that would be the one out of time, if my learned friend persuades your Honours that the non‑release recommendation is an order made by the court of trial.  That is the event in which a fresh appeal, a new appeal, is needed as opposed to reopening.  Now, it is arguable ‑ ‑ ‑

HEYDON J:   Why?

MR WALKER:   I am about to say, it is arguable and I will be relying as well on the reopened appeal covering the so‑called subsequent events argument as well as the fact that an order susceptible of appeal has come into being after the argument was heard in 1992, but I do wish to obtain the benefit if I need it of my learned friend’s order argument if it turns out that that requires a fresh appeal, otherwise the argument I am going to present is entirely focused on the reopening application.

HEYDON J:   So the extension of time application is, as it were, an insurance policy?

MR WALKER:   Yes.

HEYDON J:   Is there any difference in relevant legal tests?

MR WALKER:   No, no.  That is my submission, and that is because we expressed them in general terms concerning the administration of justice in a particular case.  Your Honours, in the division of topics, as I have already suggested, my learned friend, Mr Game, will be attending to the argument concerning the characterisation as we both contend of the non‑release recommendation made by Mr Justice Newman as being an order made by the court of trial for the purposes of the criminal appellate legislation to which I will be shortly coming.

I will be dealing with two arguments.  The first might be called the House v The King discretionary argument and concerns, as your Honours have just heard in the answers I was giving to Justice Heydon, concerns in particular the way in which the majority in the second Court of Criminal Appeal dealt with the existence and nature of certain subsequent legislation, to which I will be coming, as a factor, as we put it, dictating an adverse outcome to our application to reopen the appeal.  In order to complete the scheme that I stated in answering Justice Heydon, the same discretionary error infected, we submit, the rejected application for an extension of time to mount a fresh appeal.  That is the first argument.

The second argument might as well be called the constitutional argument.  It is not entirely Kable, it is mostly Kable. There is also a direct argument your Honours have seen in relation to section 73 of the Constitution as well as section 109 of the Constitution, and a supplementary section 78B notice was given in particular to cover the latter of those which was not covered in the first section 78B notice.

Now, your Honours, I am going to come in due course to how, in what circumstances, and particularly when, the constitutional point arises, and in particular, given the presiding Judge’s comments concerning the constitution of the Bench presently numbered five, I should immediately note that in our submission there is a great deal to be said for the proposition that the constitutional point is not ripe, is not in fact presented by the state of affairs in what I will call the sentencing process, which is still in train, and when I say “sentencing” I, of course, am confining myself to the appellate process and looking forward to a process not yet commenced upon which obviously the outcome of the appellate process will be critical.  It will determine, for example, whether we have to wait a mere eight years for an application for determination of an existing life sentence or whether we have to wait 30 years.

Now, all of that is not only in the future but obviously is contingent on the outcome of something which at the moment is arrested, which is the subject of our grievance here.  We say we should have been the recipient of a favourable exercise of discretion for the reopening of the appeal, but because we were not obviously we are not in a position to say that there is any possibility of us being able to make an application before 30 years.

Now, I will come to this in a bit more detail when I have finished my first argument, but to anticipate we submit that it is only in a specific contingency that the constitutional points as we have articulated them in writing could become real, and obviously that raises the question of moot or hypothetical matters, which itself is of great importance for the Court in considering its jurisdiction.

So may I move then to my first argument.  In paragraph 8 of our written submissions we have sought to summarise in narrative form the regime which applied when my client was sentenced in September 1990 following conviction in June 1990 for the offences committed in September 1988.

GUMMOW J:   Also we have been supplied in the Elliott matter an agreed bundle of the statutes.  Have you seen that?

MR WALKER:   I am going to use that, your Honour.

GUMMOW J:   Thank you.

MR WALKER:   Yes, I will use that bundle directly.  Could I take you immediately to tab 5 of that bundle to show your Honours on the third page of that collation the state of affairs, which by reason of a later transitional provision to which I am about to come, governed the sentencing of my client.  My client was 14 when the offence was committed.  In section 19, as your Honours will all be familiar, at that stage it was mandatory life sentence for murder, but – and the bold applied to us ‑ ‑ ‑

GUMMOW J:   Did the bold apply to you?

MR WALKER:   The bold did apply to us, as we have noted in our written submissions:

[Except in the case of murder committed by a person who is under the age of 18 years, the provisions] of section 442 –

and section 442 allowed respite, that is, something less than, and all of that is contained in paragraph 8 of our written submission, together with a reference to a text I do not need to take you to, namely, the child welfare provisions which had been the source of the exception for children.

Could I now take your Honours to tab 6, which was the position obtaining as a result of the so‑called truth in sentencing 1989 reforms.  In particular, on page 18 of that extract, that is, the third page of the collation, your Honours will see section 19A providing for the punishment for murder, and you see in particular under subsection (2) that that life sentence which by subsection (1) was available to the sentencing court as one of the options was to be served “for the term of the person’s natural life”.

That intersected or interacted with the previous regime which continued to have a transmogrified effect of tickets of leave, with which this Court is familiar from the argument in Baker’s Case.  Subsection (3) meant that the life sentence was no longer mandatory.  Subsection (5) is the transitional provision to which I earlier referred, and that applied in our case and meant that section 19 as in force before the commencement of 19A governed our sentencing.

Could I now take your Honours to that part of the 1989 amendments which worked this transmogrified continuance in part of the ticket of leave process?  It is to be recalled that when the reforms were introduced there would be people already in the system serving life sentences previously imposed.  There would also be persons case by case coming into the system with sentences, life sentences, which had not yet been imposed.  Section 13A governs the position ‑ ‑ ‑

HAYNE J:   Sorry, which tab?

MR WALKER:   I am so sorry, your Honour, tab 9.  On the second page of that collation, under the heading “Existing life sentences” could I draw to attention first that the definition means:

a sentence of imprisonment for life imposed before or after the commencement of this section -

and the “after” case obviously includes the case of a person such as my client, governed by section 19, as it was before section 19A was commenced.  May I also draw to attention, as we have noted in our written submission, that therefore the class of existing life sentence would include some people who were sentenced while section 463, which happened to be the latest numbering for the ticket of leave provisions was in effect, as well as persons like my client who would be sentenced after it had ceased to be in effect.

Now, under subsection (2), bearing in mind that the regime change was from life sentences subject to ticket of leave provisions to life sentences which were to be served for the term of a person’s natural life, that is the truth in sentencing, under subsection (2):

A person serving an existing life sentence may apply to the Supreme Court for the determination of a minimum term and an additional term for the sentence.

Your Honours are familiar with this, again, from Baker’s Case.  In subsection (3) as a general threshold requirement:

Any such person is not eligible to make an application unless the person has served at least 8 years of the sentence concerned.

I do not need to dwell on the matters well and truly covered in Baker’s Case in the succeeding subsections, but may I simply remind your Honours in particular of subsection (9) which compelled regard by the court to certain matters.  Subsection(9)(a) obviously relates only to those whose sentence of imprisonment for life had been imposed at a time when section 463 in fact operated, as I have drawn to attention in the definition of “existing life sentence”.

Your Honours will see that the mandatory regard was not only to the eligibility as a matter of law to obtain a ticket of leave, but also as to the practice relating to that issue.  Your Honours will recall in authorities such as Kalajzich Mr Justice Hunt had noted in a passage that is recorded in the written submissions and I think is referred to in Baker’s Case that it had become practically universal for some such licence to be granted.  I hope by making that comment I have not committed the error identified by the Chief Justice in Baker of looking to averages.  I do not intend to be referring to averages at all.

Subsection (9)(c) compelled regard to what is called:

any relevant comments made by the original sentencing court when imposing the sentence -

We do not need at the moment to dwell on this point, but there may have been argument about whether a comment of a kind which in the first Court of Criminal Appeal was described as inappropriate to be made was in fact a relevant comment within the meaning of that provision, but is not going to play a part in the present argument.

Your Honours see that this determination process which is subsequent to the sentencing, that is, subsequent to the completion of the exercise of judicial power in a criminal case by the State court, devised or invented or created by Parliament, is subsumed into the hierarchical exercise of judicial power within the State by subsection (12), which provides for an appeal to lie in the same way as the statute applies to an appeal against a sentence, a similitude provision which neither renders this a sentence as such, nor prevents it from being characterised as such by this court.

In many ways, this is a sui generis exercise devised by Parliament to deal with the fact that after the 1989 changes a life sentence means life, but that there would be people already in the system sentenced to life which ought not to mean life because they were sentenced at a time when the expectation and the practice by reason of their eligibility to obtain a ticket of leave manifestly did not equate to serving their natural term.

HAYNE J:   That reveals a slide, does it not, whether one is still subject to sentence but at large on licence is one question.  Whether the sentence has ‑ ‑ ‑

MR WALKER:   One is still serving sentence.

HAYNE J:   Subject to sentence.

MR WALKER:   Still serving sentence while at large and, indeed, as was noted, I think, in Baker’s Case but your Honours will be aware of from the ticket of leave provisions, there is a very secure shepherd’s crook indeed by which people on licence may be returned to custody.

HAYNE J:   In part exercised by the judicial branch.

MR WALKER:   Yes.

HAYNE J:   But in part ‑ ‑ ‑

MR WALKER:   By the executive branch.

HAYNE J:   Executive.

GUMMOW J:   At section 13A(2), which is another sad example of State legislation which in the one breath, does it not, creates a new jurisdiction and you have to read it as conferring it as well?

MR WALKER:   Yes, unquestionably, as I think this Court commented, as I think your Honour commented in Baker, yes.  Against that background, that is, against the background of those statutory provisions, came the appeal against sentence by leave granted by the first Court of Criminal Appeal decided in 1992 to which your Honours have reference in the written submissions.  It is Jamieson, Elliott & Blessington (1992) 60 A Crim R 68. The judgment of Chief Justice Gleeson, with whom Acting Justices Lee and Hope agreed, has been, as to the relevant parts, sufficiently drawn to attention in our written submissions that I will not, given the limited time, read to your Honours.

However, the particularly critical matter to note is at page 80 which contains the reasoning and disposition of the appeal against sentence.  At about point 3 on the page the Chief Justice expresses the conclusion of what I will call the appropriateness of a life sentence and, further, holds that:

No error of fact or of principle has been shown in relation to Newman J’s remarks on sentences –

That expression, we submit, does not include the non‑release recommendation as it has been called to which his Honour next turns.  Critically, in that passage, the Chief Justice by way, we submit, of a reason to explain his conclusion, says:

Under the relevant legislation –

which is section 13A –

the appellants will have a right, after the lapse of a certain period of time –

which was eight years –

to apply to a judge of this Court to change the indeterminate sentences to determinate sentences.  A decision in that regard can then be made in the light of all the relevant factors, including the custodial history of the appellants up until the date of the application.

Subsequent events being of what might be called a mundane rather than exceptional kind have been referred to by that expression.  Then follows the paragraph to which attention has been sufficiently drawn in written submissions which, in our submission, is critical to an understanding of the scope and merits, such as they were, of our application to reopen the appeal because in that paragraph commencing “With respect to the learned sentencing judge” the Chief Justice was exercising judicial power appropriate to the exercise of judicial power which had been undertaken by Mr Justice Newman in making the non‑release recommendation.

GUMMOW J:   Well, wait a minute, he was giving reasons.

MR WALKER:   He was giving reasons.  Giving reasons for the expression of a conclusion that what the judge had done is something that should not have been done by the judge, and that is of the essence of the exercise of appellate judicial power to comment about something done or not done by a trial judge, that it should not have been done or it should have been done respectively.

HAYNE J:   Well “done” covers a multitude of activities.

MR WALKER:   It does.

HAYNE J:   In what sense are you saying something was done?  Something was said.

MR WALKER:   A judicial utterance is what I mean, your Honour, and with great respect, we are not attaching to that judicial utterance when first made anything other than the status of an utterance within the exercise of judicial power, but nonetheless inappropriate in the case, that is, the everyday characterisation of matters done by trial judges which are disturbed on appeal.

HAYNE J:   But what was inappropriate was the expression of an opinion that formed no part of reasoning towards a conclusion ‑ ‑ ‑

MR WALKER:   Yes, your Honour.

HAYNE J:   ‑ ‑ ‑ expressed in the form of an order.

MR WALKER:   Yes, your Honour.  Comment upon the nature of the offence and of the nature of the offender and reasons or commentary upon what they produce for the appropriateness of a sentence are, of course, de rigueur in sentencing reasons.

HAYNE J:   They are reasons for sentences.

MR WALKER:   Yes.  As the Chief Justice has identified, one aspect which was in general terms, that is, transcending my client’s case of the inappropriateness of what Mr Justice Newman did was that it had no legal effect and it had no apparent legal basis.  Specific to my client was his extreme youth.  That was another reason for the inappropriateness, as the Chief Justice found.

CRENNAN J:   When you say it was an observation within the course of exercising judicial power, is that just a reference to the circumstances in which the observation was made or do you intend your phrase “within the exercise of judicial power” to carry some more weight?

MR WALKER:   The latter.  That is, it was not beyond jurisdiction for Mr Justice Newman to say that.  It was wrong in the sense of the inappropriateness identified by the Chief Justice and held by the Court of Criminal Appeal, but it was not outside his jurisdiction, any more than a comment that “I have never seen such undeserving offenders or such a horrible offence”, any more than a comment of that kind, plainly reasoning towards a sentence would be outside jurisdiction.

HAYNE J:   Or “This offender has a psychiatric condition which it would be a good thing if it were treated in prison”.

MR WALKER:   Yes.  Similarly, “I have heard the arguments about the state of health and I commend to the relevant authorities urgent consideration”, et cetera.  In our submission, those are exercises of judicial power.  They are not without jurisdiction.  They should ‑ ‑ ‑

GUMMOW J:   Well, they are absolutely privileged is another way of looking at it.

MR WALKER:   Yes, they are, and they certainly involve no misuse of office.  Indeed, as in Baker’s Case, in this Court, there is a long tradition of commentary, including so‑called non‑release recommendations, as well as the extremely important opposite of them in earlier days, the recommendation of mercy, in particular.  Your Honours, could we then turn to what happened thereafter?

GUMMOW J:   Are we back with the statutory bundle?

MR WALKER:   Back to the statutory bundle.  May I simply give your Honours a reference?  There is, as your Honours are aware, copious discussion of section 13A, with which I have just dealt, in Baker.  May I draw particularly attention to the reference to my present client’s case by the Chief Justice in paragraph 17 of his reasons in Baker v The Queen 223 CLR 513 at 525. My client, my present client, is very obviously the person referred to in the two sentences in parentheses in the middle of that paragraph on page 525.

GUMMOW J:   What paragraph?

HAYNE J:   Seventeen, I think.

MR WALKER:   Paragraph 17 on page 525.  Your Honours will see two sentences in parentheses commencing:

This example, it should be added, is not purely hypothetical.  One of the persons –

That person is my present client.

Now, what happened subsequently in legislative form is traced in paragraph 9 of our written submissions. Can I take your Honours in the bundle to tab 15 first. There was a change to the determination application provisions by the 1999 enactment of section 44 of the Crimes (Sentencing Procedure) Act 1999. Your Honours will see on the second page of that collation section 44(5) gives effect to Schedule 1:

in relation to the determination of a term and a non‑parole period for an existing life sentence referred to in that Schedule.

The next page, page 56 of the print, of the collation behind tab 15 is Schedule 1 and following pages. Your Honours see that there is the definition of “existing life sentence” expressed slightly differently but relevantly with the same material effect – namely, it encompasses my client’s life sentence because he was not sentenced under section 19A to which I have drawn attention already. There is a definition of “non‑release recommendation” which is the innovation in these provisions. It is common ground that that description entirely is met by Mr Justice Newman’s relevant comment.

Clause 2 of Schedule 1 starts off by being “Subject to any direction under clause 6”. We need not delay on that. That is the possibility, after failure of an application, of being prohibited or delayed in making further applications. Subject only to that:

an offender serving an existing life sentence may apply…for the determination ‑

et cetera.  Then in subsection (2) you see that paragraphs (a) and (b) introduce two classes where there had been one before.  So it is eight years unless paragraph (b) applies.  That remains the threshold.  At this stage, the special class was 20 years.  Looking ahead, as your Honours know, it became 30 years.

GUMMOW J:   This is a jurisdictional fact, as it were, which attends this new jurisdiction that the Supreme Court has.

MR WALKER:   Yes, and determines eligibility to make ‑ ‑ ‑

GUMMOW J:   But the applicant who invokes it must have a particular characteristic.

MR WALKER:   Yes, in order to be eligible to make such an application and it would follow, in order for the application to be entertained.  Paragraph (b) describes that second class – the 20‑year threshold class – as being:

if the offender is the subject of a non‑release recommendation.

There is no contest, of course.  My client was and is.  Subsection (3) then refers to the provision which your Honours appreciate was the nub of the unsuccessful argument in Baker’s Case – that is the special reasons provision.  I hope your Honours will forgive me for passing over that quickly and with a shudder.  Clause (3) then requires regard to matters which are unremarkable of their nature in subclause (1).  I do not need to delay any further on that.

Clause (4) provided for the range of possible outcomes.  Clause (7) is an important set of mandatory matters to which the Court must have regard in considering an application.  In particular, could we take you to subclause (3) on the next page, where new language is introduced.  The Supreme Court:

(a)must have regard to and give substantial weight to any relevant recommendations . . . 

(b)must give consideration to adopting or giving effect to the substance of any such recommendations . . . 

(c)to the extent that it declines to adopt or give effect to any such recommendations…must make a record of its reasons for doing so.

Tab 16 at 2001 - I do not think I need to delay your Honours on that. At page 3 your Honours will see that the 20‑year threshold was lifted to 30, as we have set out in our written submissions. You see that in item [2] of schedule 1 – the amendment. As it happens, we also have there, although this is not part of our argument – your Honours I think are aware of the provision of section 154A, which was inserted by amendment into a different statute – the Crimes (Administration of Sentences) Act on page 5 of that collation. That has, obviously, a dire effect but administratively entirely related to administration rather than to judicial power.

HAYNE J:   Does anything turn on the addition of subclause (3) to clause (4) which leaves certain persons, even if successful on application to the Supreme Court, subject to a life sentence.  All that the court can do, I think, is set a non‑parole period or decline to do so.  It cannot, as it were, adjust the head sentence of life.

MR WALKER:   That is right.  All you can do is provide a date at which an application can be made and that is why ‑ ‑ ‑

HAYNE J:   An application determined by executive authority?

MR WALKER:   Yes, quite, and governed by 154A to which I have just drawn attention which, paraphrased, involves that you are moribund and harmless.  These are obviously very large effects on prospects of release.  Tab 18 contains what have been called the 2005 amendments.  On page 3 of the print, four pages into that collation you will find it and it amended the definition of “non‑release recommendation”.

Your Honours appreciate by the statutory provisions I have taken you to that that is the pivot upon which the two classes were created and upon which very drastic effects are disparate as between the two classes thereby made available.  The definition of a recommendation includes the words which are at the heart of our constitutional arguments such as that is at present, namely, that it “includes any such recommendation” that “has been quashed, set aside or called into question”.  I am going to come to those words a little later but at the moment it is important for us to note that that expression “such recommendation . . . has been quashed, set aside or called into question” presents a range of possibilities of interpretation.

One that we obviously embrace and submit is that the Parliament accepted, queried, stipulated that such recommendations could be quashed, set aside or called into question.  Against that argument I am bound immediately to point out that that is perhaps in the face of the very discussion in the paragraph in Chief Justice Gleeson’s reasons in 1992 to which we have all drawn attention where, in particular, his Honour doubted the susceptibility to appeal of any such comment.  But there is that first possibility that here Parliament has simply said there is a species of such recommendation that has been quashed, set aside or called into question.  Another possibility is that “called into question”, antique phrase as it is, nonetheless includes that which the Court of Criminal Appeal did in 1992.

HAYNE J:   It is the language of prerogative relief.

MR WALKER:   Of course it is, yes.  It was called into question though as a matter of what that exercise of judicial power achieved concerning its appropriateness in 1992.

Now, another possibility that will relate to our constitutional argument is that those are provisions which of their very nature look to an effect after exercises of judicial power have been carried out because it is by exercise of judicial power that something may be quashed, set aside or called into question.  They speak, therefore, about the end of a process, which in this country can include consideration by this Court of its exercise, and if special leave be granted, the exercise of judicial power in relation to the recommendation.

So, in our submission, as we have put in writing, there immediately arises the question as to the relationship of that ambitious scope of the extent of definition directly to section 73 of the Constitution, which talks about an appeal to the Court, and thus invokes the notion of a decision which will be enforceable or effective subject only to legitimate legislative intervention of a kind to which we will come later in relation to the Commonwealth BLF Case and the Bachrach Case, to which reference has been made in written submissions.

In our submission, there is, of course, necessarily a question raised about its compatibility with section 37 of the Judiciary Act, which provides for what this Court may do, not must do, but may do, upon disposition of an appeal to this Court from the New South Wales Court of ‑ ‑ ‑

GUMMOW J:   That is a Kakariki type inconsistency, is it not?

MR WALKER:   Yes, your Honour.

GUMMOW J:   You wait and see if there is an order of this Court and someone says it is ineffective because of something in the State law.

MR WALKER:   I think I have already ‑ ‑ ‑

GUMMOW J: Section 109 may swoop.

MR WALKER:   Yes.  I think I have already made clear that that is one of the aspects for thinking that the constitutional point is not ripe.

GUMMOW J:   Yes, I understand that.

MR WALKER:   Your Honours, those are what might be called the sentencing provisions, to which I have now taken you, those applying in 1990, those applying in 1992, and those applying at the time of the second Court of Criminal Appeal, and those applying now.  Can I now go to a second category of statutory provision because the relationship between the sentencing provisions and the appellate provisions, to which I will now turn, in the second category, is critical to our first argument, the House v The King argument for error, particularly in paragraphs 74, 75 and 81 of Chief Justice Spigelman’s reasons.

Now, the appellate provisions are to be found at tabs 2 and 3.  For present purposes, it is tab 2, those current at the time of the second Court of Criminal Appeal that concerns us.  Under section 5 there is a right to appeal against conviction, that is, paragraph 5(1)(a), and there is a right to seek leave to appeal on sentence.  The leave had been granted, this was in the same form in 1992 relevantly and relief had been granted in 1992, 5(1)(c).

Your Honours do not have section 6, I regret to say, in the bundle but you do have, I hope, supplied yesterday, a full copy of the Criminal Appeal Act.  That is important because I need to take your Honours to section 6.

GUMMOW J:   Yes.

MR WALKER:   This deals with the determination of appeals in ordinary cases, and your Honours ‑ ‑ ‑

GUMMOW J:   What we have got is ‑ ‑ ‑

MR WALKER:   It is a computer print ‑ ‑ ‑

GUMMOW J:   It is said to be an historical version, yes, for the period November 2005 – 2006, but nothing turns on that, does it?

MR WALKER:   Not at all.  This covers the second CCA.

GUMMOW J:   Yes, thank you.

MR WALKER:   Section 6(1), I suspect your Honours could recite by heart and this is one case that has nothing to do with it.

GUMMOW J:   Do not assume that on other than colleagues.

HAYNE J:   Speak of little else.

GUMMOW J:   We do not speak of this in Victoria or Queensland necessarily.

MR WALKER:   It is subsection (3) that is much less commonly to the forefront of argument in this Court bearing in mind the practice of this Court in relation to special leave in sentencing matters:

On an appeal under section 5(1) against sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

Those are, together with the definition of ‑ ‑ ‑

GUMMOW J:   The definition of “sentence” has certainly fluctuated from time to time.

MR WALKER:   Yes, it has, your Honour.  In particular, if I take your Honours back to section 2, your Honours are aware that there are, as it were, extras and variations which have been added to the basic definition of “sentence of imprisonment” by reference to various penological reforms that have been carried out over the years and, relevantly, “sentence” has at its heart the expression which my learned friend, Mr Game, will be addressing on, namely, order made by the court of trial.  Your Honours will have seen that in the first paragraph of our written submissions in reply we have collected authorities to which I will otherwise not go in light of the time concerning the judicial approach to section 6(3) as to the width of the jurisdiction thereby granted. 

Those are the two categories for statutory provisions. What your Honours will have observed is that in none of the sentencing provisions, be it 13A in its original form or in Schedule 1 given force by section 44 in its sequence of different forms, in none of those is there any provision which directly or indirectly detracts from the appellate jurisdiction granted by sections 5 and 6 of the Criminal Appeal Act.  There is, of course, in none of them any legislative judgment expressed that Mr Blessington or any group of person described generically shall not be eligible to approach a court in a sentence appeal to seek to have something less than life imposed.  There is nothing to that effect. 

The sentence provisions do not purport in any way to control the way in which the appellate jurisdiction is exercised whether at the first step of considering leave or whether at the other steps to which I am about to come appearing from judge‑made law such as the leave to reopen, as it is called.  There is no provision in a sentencing legislation that purports to touch on that matter.

Neither, subject to the 2005 amendments to the definition of “non‑release recommendation”, to which I have drawn attention, neither do any of them say anything about the amenability of a non‑release recommendation to be the subject of an appeal, and in the 2005 amendments, as I have already put, the only reference or possible effect is to open them to appeal rather than to close off an appeal.  That is, in our submission, highly significant when one comes to consider the critical way in which Chief Justice Spigelman approached this matter.

GUMMOW J:   We also have to take into account perhaps section 23, which abolished the writ of error.

MR WALKER:   Yes.

GUMMOW J:   “Statement from time to time by the Court of Criminal Appeal of their recorded error”.  I am not sure that is correct.  And section 27, which is “preserve the Royal prerogative”.

MR WALKER:   Yes.  I do not think section 27, with respect, your Honours, will play any part in my argument because it is simply demarcating the effect of this legislation as it is addressed to the judicial arm from any possible effect on the executive arm.  Section 21 does, with respect, have this important effect.  It emphasises that one looks to sections 5 and 6 and not to anything else in order to understand the nature of the jurisdiction.

GUMMOW J:   Yes, I would have thought so.

MR WALKER:   The jurisdictional fact, if I can call it that, for a substituted sentence is wholly and explicitly contained in subsection 6(3), and nowhere else.  Now, that does not mean the judicial interpretation is irrelevant and that is why we have drawn attention to that in paragraph 1 of our written submissions in reply.

Now, your Honours, there is one other set of rules, if I can call them that, some judge‑made by case and some judge‑made by the judges as the former rule makers to which I must last come because they relate to the reopening in particular.  It was and is common ground that there was jurisdiction to reopen the appeal, that is, that the condition existed which on the authorities to which we have drawn attention, and in those referred to in our written submissions, could I emphasise in particular without going to it the reasons of Mr Justice Clarke in Lapa (No 2) (1995) 80 A Crim R 396 at 402. I am not going to go to it. So there is common ground, there still is common ground, that there was jurisdiction to reopen.

HEYDON J:   On what precise basis though, that there had been some failure to perfect the order?

MR WALKER:   Yes.

HEYDON J:   Is there some enactment that describes how you perfect an order of the Court of Criminal Appeal in 1992 dismissing an appeal?

MR WALKER:   There is.

HEYDON J:   Is that you say rule 53 of the Criminal Appeal Rules?

MR WALKER:   Yes, those rules have changed over time.  Relevantly, it involved noting on the indictment.

HEYDON J:   Why does it follow – you may be quite right since all the parties seem to agree you are ‑ ‑ ‑

MR WALKER:   Yes.

HEYDON J:   ‑ ‑ ‑ but why does it follow that subrule (2) of rule 53 is that which draws the line between an order incapable of being reopened except in very limited circumstances and the order you say this order was?

MR WALKER:   I do not think, your Honour, I am able to give you ‑ ‑ ‑

HEYDON J:   What is there more solemn than the pronouncement of the words “appeals against conviction and sentence dismissed” in open court?

MR WALKER:   Your Honour, if this was innocent of authority my answer to your Honour’s last question in particular would be this.  It would be absurd to suggest that an entry being made on the indictment, which after all would be made privately in a back room as it were, it would be absurd to suggest that that had anything in the nature of solemnity, let alone to be compared with the announcement in open court by a judicial officer of the determination of the appeal.

GUMMOW J:   It has to do with the nature of the – the Court they have created is a court of record, I imagine.

MR WALKER:   Yes, and the cases to which we have drawn attention incorporated, as it were, in Lapa (No 2) by convenience which, as Justice Heydon has noted, are not the subject of argument or contest in this Court as to their correctness or their application in the present case have held, notwithstanding the choices that may have been available historically to be made differently, that rules such as rule 53(2)(a) are the test for the so‑called perfection of the order, particularly in the context which is presently governing – namely where an unperfected order is a gateway to a reopened argument by leave – that is in the exercise of a discretion.

GUMMOW J:   I thought there was authority in this Court on this problem in New South Wales.

MR WALKER:   Postiglione ‑ ‑ ‑

GUMMOW J:   Exactly.

MR WALKER:   ‑ ‑ ‑ is referred to I think in all the written submissions on the point.

GUMMOW J:   That is where one starts, I imagine.

MR WALKER:   Your Honour, there is no issue in this case, in this argument, about that matter.  So there was common ground there was jurisdiction, common ground that it was discretionary in the sense that, having established lack of perfection, we were not thereby entitled to force their Honours to listen to what we wanted to say.

GUMMOW J:   What is the citation of Postiglione?

MR WALKER:   It is 189 CLR.

CRENNAN J:   At 295.

GUMMOW J:   It is page 300, I think.

MR WALKER:   The position was that the second Court of Criminal Appeal was dealing with an application for the exercise of a discretion whether to reopen argument in the appeal where it is accepted there was jurisdiction to do so by reason of the lack of perfection of the order.  This is the so‑called staple point.  It really has nothing to do with a staple at all, but your Honours will recall the reasons in the Court of Criminal Appeal by which their Honours were, unsurprisingly, not convinced by some problematic marks on a piece of paper – the indictment – that there had ever been compliance with the rule.  The staple is a phantom staple, obviously enough.

GUMMOW J:   Yes; very well.  Now where do we go?

MR WALKER:   Your Honours, I have now by dint of answering Justice Heydon, taken you, albeit briefly but as much as I need to take you, to the Criminal Appeal Rules which your Honours will have seen at tab 4 of the bundle.  I do not need to take you back there.  Can I now go to the reasons of the Chief Justice in the appeal book at pages 326 and 327.  In paragraph 74 ‑ ‑ ‑

GUMMOW J:   It is the first sentence that gave me pause.

MR WALKER:   Yes.  In paragraph 74, section 6(3) perhaps it is not given the explicit leading role it should have.  That may or may not matter, however.  The main subject matter of paragraph 74 is something to which the Court may wish to return if it needs to consider the so‑called constitutional argument.  But I wish to draw to attention in particular the expression his Honour uses at about lines 28‑29 as follows:

The fact that the Parliament has subsequently passed valid legislation impinging upon the sentence -

That is the phrase that is critical ‑ ‑ ‑

is not a subsequent event which permits reconsideration of a sentence.

The impingement on the sentence, as your Honours have seen from the sentence provisions to which I took you in the first category of legislation, is to provide for a determination possibility and to provide, in an historical sequence of increasing severity, for dwindling prospects to the point of practically no prospect of release for persons in particular categories, of which my client is one. 

Your Honours will recall that the sentencing provisions to which I am referring describe people relevantly by two qualities.  One is that they are subject to an existing life sentence and the other is that they are the subject of a non‑release recommendation.  In the reopening, as your Honours know from the way in which the arguments fell out and were dealt with by Mr Justice Kirby in the Court of Criminal Appeal, we wished to argue for the life sentence to be reduced.  That of course would have the effect that the sentencing legislation said nothing to my client’s case – could have no effect. 

So this notion of legislation impinging upon the sentence, when unpacked, would appear – and we submit illegitimately – to accord to the sentence provisions some effect on the prospect of a person removing themselves from their effect by ceasing to have the first criterion true – namely, subject to a life sentence.  Yet I repeat, because it is central to our argument, there is no part of the sentence provisions which purports to interfere with, track from or alter in any way the jurisdiction bestowed by sections 5 and 6 or the judicial control of a reopening contained in the authorities and the rules to which I have already made reference – no effect at all.

So that was the beginning, in our submission, of a highly significant error involving the misreading of the sentence provisions as they interacted with the appellate provisions.  Paragraph 75, in our submission, continues and exemplifies the same kind of error.  It would not be a proper characterisation, in our submission, of a decision to reopen the appeal, to allow the appeal argument to be reopened, and then to entertain argument concerning the appropriateness of a life sentence.  That would not be to “subvert a valid exercise of legislative power”.

The word “valid” has now appeared twice in the passages to which I have drawn attention.  It is presumably, and with great respect, a reminder that the provisions in questions had, to the extent recorded in Baker, survived a challenge to their validity.  It cannot add anything else to the expression of reasons or the justification for the decision taken by the Chief Justice.  The second sentence of paragraph 75 is, with great respect, axiomatic:

The Court should not exercise a discretion in such a way as to undermine the purpose and object of valid legislation with the effect, indeed for the purpose, that the intention of Parliament will be frustrated.

Yes, of course.  That is, with great respect, as one has seen by a number of the authorities such as one sees in Fardon 223 CLR 575 per the Chief Justice at 593 paragraph 23, or Chief Justice Brennan in Nicholas 193 CLR 173 at 197 paragraph 37. It is an important hallmark of the proper relation of the judiciary to the legislature that there be, regardless of personal judicial disapproval of any exercise of legislative power, there be faithful application and enforcement of legislation.

GUMMOW J:   I am not sure what you are saying, Mr Walker.

MR WALKER:   In our submission, your Honour, that sentence appears in paragraph 75 ‑ ‑ ‑

GUMMOW J:   I am not sure what the sentence is saying either.

MR WALKER:   No.

GUMMOW J:   That is why I do not understand what you are saying.

MR WALKER:   I am going to offer this suggestion, your Honours.

GUMMOW J:   You seem to understand what it is saying.

MR WALKER:   If it were not in this judgment, it would be a correct but unremarkable statement.  In this judgment it appears ‑ ‑ ‑

GUMMOW J:   The question is, what is the scope of the discretion.

MR WALKER:   Quite.

GUMMOW J:   And the question is, is the exercise of the discretion in a particular case tainted by some improper consideration which should not be taken into account?

MR WALKER:   Quite, and, in our submission, what his Honour means in that sentence is to say that the sentencing provisions, as I am calling them, in some way had an effect on the way in which a discretion ‑ ‑ ‑

GUMMOW J:   Just a minute, I have not finished yet.

MR WALKER:   I am sorry, your Honour.

GUMMOW J:   And you do not measure whether there is or is not an improper purpose, do you, and identify the proper purpose by what would be the outcome of the decision?  It is a question of what is conferred with the discretion and if the discretion has an adverse impact on bureaucrats or the legislature, well, so be it.

MR WALKER:   That is the effect of the law, yes.

GUMMOW J:   That is called a rule of law.

MR WALKER:   Yes, the discretion is a discretion granted by or existing by reason of and exercised in accordance with the law and it is not to the point that there may be, if I could put it this way, political ambitions frustrated by the working out of the law.  Your Honours will see that the notion of the intention of Parliament is expressly referred to in this sentence.  In our submission, it is of the first importance to note, accepting that this is elementary that the intention of Parliament is relevantly that which is expressed by its enacted legislation.  It is not by the utterances or statements in parliamentary chambers of members of two of the three arms of Parliament.

Thus, when one understands that one looks at this notion of frustrating the intention of Parliament, one ought properly understand that simply as meaning that you cannot exercise a discretion unlawfully, that is, contrary to the effect properly understood – and that is for the judges to construe – of the enactments of Parliament and nothing more.

If we are right that the sentence provisions here said nothing about the exercise of appellate jurisdiction including the ancillary question of considering a reopening application, then these paragraphs 74 and 75 are boxing at shadows and that is a serious error.

GUMMOW J:   The so‑called intention of the Parliament may be a shorthand way of construing the scope and purpose of the legislation.

MR WALKER:   Yes.  Now, the scope and purpose of the legislation here is not to deny Mr Blessington the possibility of a reopened appeal, and is not to deny the Court of Criminal Appeal the power upon due consideration to alter his life sentence to a determinate term of years, and that is, in our submission, the reason why this was an irrelevant, extraneous and repugnant consideration for the Court of Criminal Appeal to take into account on the reopening.

GUMMOW J:   Well, what does the Solicitor for New South Wales say about that?

MR WALKER:   Nothing directly.  That is ‑ ‑ ‑

GUMMOW J:   I think it said that it is, well, en passant, really.

MR WALKER:   In our submission, that is unmaintainable, particularly when one sees the relation of paragraph 81 to paragraphs 74 and 75, and the fact that paragraph 81 immediately precedes paragraph 82, which is the announcement of the decision.  These are not matters of surplusage, they are not matters which can appropriately be subtracted from his Honour’s reasons, as it were, as matters that are neither nor there in the justification of the outcome.  They are at the heart of the outcome, and they refer, of course, to matters of transcendent and profound importance, the relation of the courts to the legislature and fidelity to legislation by courts.

In paragraph 81 the different metaphor is employed of characterising our unsuccessful application as one which:

invites this court –

that is, the Court of Criminal Appeal –

to remove the basis upon which the Parliament has enacted constitutionally valid legislation.

Now, no basis for the sentencing provisions to which I have drawn attention is being removed, affected or in any way attended to by an application to reopen argument, and if successful, to present argument for determination as to whether the life sentence should be removed.  I stress ‑ ‑ ‑

KIEFEL J:   Mr Walker, what would that argument be?

MR WALKER:   I am so sorry, your Honour?

KIEFEL J:   His Honour is saying that leave should not be given to revisit the life sentence in order to frustrate legislation which has regard to that life sentence.

MR WALKER:   Now, that could not be right unless the legislation in question said – and those who we think are within the class we describe as serving an existing life sentence are hereby ineligible to do anything about that.

KIEFEL J:   Well, that is right as far as it goes.

MR WALKER:   They do not say that.

KIEFEL J:   It is not just the life sentence.  It is a life sentence with a recommendation.

MR WALKER:   Quite.  Now, the recommendation – may I stress, as you will have observed, that all my argument at the moment is directed to the application we made, which was successful only with the dissenter, namely, to reopen, to present argument that it should be less than life, and if it is less than life the legislation does not bite ‑ ‑ ‑

KIEFEL J:   Then the recommendation would fall with it, is that your point?

MR WALKER:   But, yes, the critical – it does not fall, your Honour, it ceases to bite.

KIEFEL J:   But the question I was trying to come to is what would the argument be in relation to the sentence being other than a life sentence?

MR WALKER:   It is the argument that is recorded in Mr Justice Kirby’s reasons, your Honour, namely, that given the extreme youth, and in particular, given the premise that is explicit in the first Court of Criminal Appeal’s approach, that a life sentence is manifestly excessive.  We adopt, with respect, everything that Justice Kirby said about it.

KIEFEL J:   But the matters referred to there had been agitated before the first Court of Criminal Appeal.

MR WALKER:   No, no.

KIEFEL J:   That was an appeal against sentence as well, was it not?

MR WALKER:   Yes, it was, but what could not be agitated, what was not agitated, was the fact of a life sentence meaning at least 30 years with release on what I will call an elusory basis, namely, moribund and harmless, being the only persons who could achieve release even if you got the non‑parole period.

Your Honours, that directly cuts across the way in which Chief Justice Gleeson in the first Court of Criminal Appeal dealt with the matter at page 80 of the report because his Honour was there saying these are matters for the future and he will be able to apply for something which might involve release and he was addressing, after all, not an anticipated application for a non‑parole period or the like - he referred to that - but he was addressing Mr Justice Newman’s recommendation that they not be released.  He is saying you should not say that, should not have said that, maybe they should not be, maybe they never will be.

GUMMOW J:   His Honour  says at page 80 “the appellants will have a right, after the lapse of a certain period of time”.

MR WALKER:   That was then eight years, your Honour.

GUMMOW J:   Is your point that that was eight and now it is 30?

MR WALKER:   It now happens to be 30, yes.

CRENNAN J:   Then your point is that bears on what “manifestly excessive” meant in that context?

MR WALKER:   Yes, bearing in mind that these sentencing provisions started, in their first manifestation, by recognising that some of the people subject to additional life sentences – not my client, but some of them – were people sentenced when ticket of leave was available and that there was a practice, Parliament recognises and, indeed, compels consideration of that practice which was notorious.

HAYNE J:   This represents the elision of two separate considerations.  It is sliding between the determination of manifest excess in respect of what in other contexts would be called the head sentence and eligibility for release according to executive conduct.

MR WALKER:   May I try, your Honour, to disentangle that.

HAYNE J:   To disentangle them, because you have to.

MR WALKER:   In particular, may I make it clear that whether it be judicial or executive is not critical to my argument.

HAYNE J:   I understand that and the point I am seeking to put to you is it ought to be, that you have to separate the judicial determination of sentence from whatever it is the Executive then does in carrying out that sentence.

MR WALKER:   I am so sorry, your Honour, yes.  For section 6(3) purposes, yes, of course.

CRENNAN J:   Because the regime changes are all about making it increasingly difficult to apply to have the sentence shortened.

MR WALKER:   Yes, but, your Honours, there are two judicial exercises involved.  One is the familiar one of sentencing at the heart of the exercise of judicial power, sentencing at the end of the trial.  Then there is this new creature, determination of an existing life sentence.  Whether it be a sentence or not is academic debate because Parliament says it is subject to appeal by provisions applying as they do to a sentence, and that is judicial.  Then there are the administrative actions which determine the outcome for somebody who succeeds in obtaining a non‑parole period as to whether they actually are released and, if so, on what conditions.

So there are three stages.  There is what I will call the original sentencing of a familiar kind.  There is this new fangled determination of sentence and then there is the quite familiar, although they have changed many times over the years, the quite familiar exercise of executive power now by a relatively elaborate statutory process to determine executively the release following the grant of a non‑parole period.

What we are saying is that Parliament contemplated, when they invented the second of those judicial exercises, that people who had for years been getting life sentences by exercise of the first kind of judicial power had been doing so against the background of the notorious availability of and practice in granting tickets of leave and that was, therefore, and understandably, mandatorily to be taken into account when considering what possible determinate sentence, that is, term of years rather than life, would be appropriate for this person bearing in mind – and now this is my interpolation which we urge as an understanding of the intention of the statutes – that when they were sentenced to life the sentencing judge must be taken to have appreciated that the chances were, and if I can use an average, to be about 14 for life.  I stress again, as the Chief Justice said in Baker ‑ ‑ ‑

HAYNE J:   And the judicial error in that would be manifest.

MR WALKER:   I do not mean that in any one case you would say 14.  What I mean, your Honour, is ‑ ‑ ‑

HAYNE J:   But the exercise of judicial power stopped at the point of pronouncing sentence, life.

MR WALKER:   Yes, but, your Honour, where it was discretionary, and I stress where it was discretionary, as opposed to mandatory, then it would have been, always was, still would be appropriate to take into account what it means to sentence somebody to life and that is what Chief Justice Gleeson in the first Court of Criminal Appeal did at page 80.  They said life is appropriate (a) the nature of the offence and offender and, notwithstanding youth, particularly appropriate because he will be entitled to apply.

As Justice Crennan has raised with me, may I emphasise, in sentencing terms there is the world of difference between a judge’s appreciation of a possibility to apply after eight years and after 30 years.  There is a world of difference, in particular, between being able to apply for something which will in substance provide the prospect of release and to apply for something which in substance has no real prospect of release.  In our submission – I am sorry it has taken so long – that is my answer to Justice Kiefel.  Those are the arguments which found favour with Justice Kirby below and we do not put them any differently in this Court.

HAYNE J:   The moment you inject the notion of prospect of release, you have melded together the determination of sentence as life with the possibility, probability, chance of subsequent executive action and it is that melding to which I direct your attention and invite your submission.

MR WALKER:   May I submit that that is not the only kind of possible executive action in the future, that sentencing judges can and in appropriate cases should take into account in considering their exercise of judicial power in sentencing.  A familiar example is, to use the parlance, the consideration of those who will do their time hard because of executive or administrative action taken, very often at the level of the individual prison, by reason, for example, of being an informer.  Those are executive actions and the courts take care to inform themselves – experienced judges can do that very quickly – of what are the differences between the ordinary conditions for most prisoners and the particular conditions that will apply, for example, to an informer.

In this case what happened was that judicial process is required still to be done, that is, the Court of Criminal Appeal is obliged to consider our application to reopen or our application for leave to lodge a fresh appeal out of time.  They are obliged to exercise judicial power, but they do so, we submit, in such a way as one of the ultimate outcomes to be anticipated by the terms of the 2005 amendment defining non-release recommendation and sterilising the effective or enforceable outcome of that exercise of judicial power.  That bears, we submit, no analogy whatever to the very special case considered in Mellifont and certainly is worlds away from the position that obtains when no court has jurisdiction to do so at all.  May it please your Honours.

GUMMOW J:   Yes, thank you, Mr Walker.  We will consider our decision in this matter.  We will now adjourn to 10.15 am on Tuesday, 25 September at Canberra.

AT 3.07 PM THE MATTER WAS ADJOURNED