Ellis v The Queen

[2004] HCATrans 51

[2004] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B88 of 2002

B e t w e e n -

FREDERICK JOHN ELLIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH ACJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 10.02 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant in this matter.  (instructed by Bernard Bradley & Associates)

MRS L.J CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH ACJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, the point in this application revolves around the Penalties and Sentences legislation and its application to the Criminal Code (Qld).  However, in my submission, it also goes to the broader situation of charging properly in criminal indictments throughout the country.  Under the provisions here, if a person is convicted of an offence which is susceptible to being a serious violent offence under the Penalties and Sentences legislation, then that person is liable to a greater punishment.  That is the uniform definition, in my respectful submission, of the circumstance of aggravation in the criminal justice system.  Prima facie then, in order for such a circumstance as aggravation to be relied upon, it must be pleaded specifically in the indictment. 

The only differences, it seems, between the serious violent offence provisions and what is said to be a circumstance of aggravation under those are, firstly, that the circumstance of aggravation arises from different legislation than the primary offence which is created under the Criminal Code statute, and, secondly, where a conviction of an offence capable of being a serious violent offence attracts a sentence of 10 years or more, the greater punishment is automatic. 

However, in relation to those two points of perceived difference, may I make the following submissions.  Firstly, in relation to the different legislative basis, as the US Supreme Court has held in Apprendi v New Jersey, the proper test is not one of form but of effect.  In other words, does the finding by the sentencing judge expose the defendant to a greater punishment?  If the answer to that question is in the affirmative, then the circumstance leading to the greater exposure must, it is submitted, be alleged in the indictment. 

The error, with respect, in the reasoning of the Court of Appeal of the Supreme Court of Queensland may be seen in paragraph 11 of the judgment.  In that paragraph, which is the ultimate conclusion by the court, the Court of Appeal seeks to distinguish the serious violent offender or offence provisions upon the basis that their application may depend upon the exercise of the discretion of the sentencing judge.  Now, it is respectfully submitted that such a test may apply to all circumstances of aggravation, such that where it is pleaded and properly found by a jury, then it still remains within the discretion of a sentencing judge as to whether or not to invoke the greater punishment thereby exposed. 

Indeed, even in the situation where the liability to the greater punishment arises from where the particular offence is on the schedule to the Act, it still remains within the discretion of the sentencing judge to either impose a sentence of 10 years of more, which is the automatic cut‑in of the legislation, or make a declaration that results in greater punishment where the level of sentence imposed is under the 10 year mark.  So the discretion remains in both cases, the automatic and the non‑automatic.

Also, importantly, if I may briefly take your Honours to the specific legislation, which is 161B of the Penalties and Sentences Act 1992 (Qld), your Honours will see that there are a number of situations where a declaration of a serious violent offence has been committed may – under 161B(4), there is, with respect – contrary to what the Court of Appeal has held in paragraph 11 – not a defining of offences which apparently refers to the schedule to the Act, but, under subsection (4), the circumstance of aggravation is either an offence:

(i)that involved the use, counselling or procuring the use, or conspiring or attempting to use, serious violence against another person; or

(ii)that resulted in serious harm to another person –

Now, the breadth of those two provisions would cover offences as broad as, for example, dangerous operation of a vehicle to assault.  For a person facing a criminal charge to be properly appraised of what is being alleged against him, if it is to be submitted that his penalty can be enhanced by the making of a declaration under the serious violent offence legislation, then as a matter of principle ‑ ‑ ‑

KIRBY J:   The principle behind what Chief Justice Gibbs said in Kingswell is, is it not, to defend the position of the jury to determine any factual controversies that give rise to an aggravation punishment in a case such as the present.  Is that the rationale behind the rule, that you have to charge it in the indictment so the jury can give its verdict upon it?

MR BYRNE:   That, with respect, seems to be at least the primary rationale, your Honour, yes.

KIRBY J:   Well, now, the matters in (4)(a)(i) and (ii), are they matters apt for jury verdicts, or are they not matters apt for a judicial determination once a person has been convicted on indictment of an offence, which seems to postulate the already convicted?  Do you see what I mean?

MR BYRNE:   I do indeed.

KIRBY J:   In 161B(4), it seems to be talking in terms of the conviction as a given, not something which the jury is working towards to see whether the person should be convicted.  The structure of the section seems to posit that the conviction has occurred and, therefore, there is nothing for the jury to pass upon to aggravate the sentence – that the sentence is a matter for the judge.

MR BYRNE:   Accepting what your Honour says, the point of principle, in my respectful submission, is if a person is to be put on trial with the possibility of a greater punishment resulting from a finding ‑ ‑ ‑

KIRBY J:   Mr Byrne, I am very sympathetic to your principle.  I am very sympathetic to your principle, and I will defend the right of the jury to pass upon a factual question of aggravation.  But my problem is that the structure of the section seems to say that you have already got your conviction, and, therefore, that the jury role is spent.  It is just a matter of the language of the section.

McHUGH ACJ:   But, in addition, subsection (4) has no application in this case, has it?  And that is because carrying on the business of trafficking in dangerous drugs is one of the offences specified as a serious violent offence in the schedule. 

MR BYRNE:   That is quite so, your Honour, but the submission is that there must be an uniform approach to the provision of whether or not this is a circumstance of aggravation.  If it be a circumstance of ‑ ‑ ‑

KIRBY J:   But the reference to subsection (4) does not seem to help you, because it is structured on an assumption that the conviction has already occurred.

MR BYRNE:   Your Honour, in my respectful submission, it does not differ that much from other circumstances of aggravation creating,
for example ‑ ‑ ‑

KIRBY J:   Your are going back to the point of general principle.  I am with you on the point of general principle.  If I thought that this was a matter upon which the jury’s verdict should be taken on a matter of aggravation that leads to a higher sentence, I believe that is a matter that should be left to the jury in the form of the count of the indictment.  That is what this Court has said on a number of occasions.  So you do not have to convince us on that; it is just a question of whether it applies in the structure of the legislation applicable to your particular client.

MR BYRNE:   I understand your Honour’s point, however, the creation of a number of criminal offences, in my respectful submission, are worded in a not dramatically different sense to that.  For example, the offence of dangerous driving of a motor vehicle may say:  “If a person is convicted of dangerous driving, the offence is 5 years; if a person is convicted of the offence of dangerous driving whilst intoxicated, the sentence is 10 years” ‑ to use that example.  Whilst those ‑ ‑ ‑

KIRBY J:   I do not think that is a very good analogy, particularly because here you have the definition of what is dangerous in the schedule.

McHUGH ACJ:   How would you plead, in the indictment, the matter of aggravation in respect of this particular offence?

MR BYRNE:   Your would plead, in respect to this matter, that it was a schedule offence under the legislation, your Honour.

KIRBY J:   But surely that is a matter of law?

MR BYRNE:   That is so.

KIRBY J:   Well, if it is a matter of law, then it is nothing for the jury to pass upon, is it?

MR BYRNE:   I am sorry, I must fall back upon what I said to your Honour Justice McHugh a moment ago.  Section 161B, if it is to be applied, must be applied uniformly, so that if what amounts to a circumstance of aggravation either under subsections (1), (3) or (4), then, regardless of what that is, it should be pleaded in the indictment.  The submission is that that approach, both as a matter of principle, which your Honour Justice Kirby has pointed out to me, has consistently applied in this Court, and also as a matter of the interpretation of this specific legislation.  Those are my submissions.

McHUGH ACJ:   Thank you, Mr Byrne. 

The offence for which the applicant was convicted was not a matter specified in section 161B(4), Part 9A, Penalties and Sentences Act 1992 (Qld). It was an offence specified as a serious violent offence in the Schedule to that Act. That being so, it is plain that the offence of which the applicant was convicted was not a matter of aggravation. The Court of Appeal was correct to so find. It is unnecessary to make any comment on whether or not it might be necessary in a particular case to plead, as a matter of aggravation, any of the matters specified in section 161B(4).

The application for special leave is refused.

AT 10.15 AM THE MATTER WAS CONCLUDED