Fingleton v The Queen

[2005] HCATrans 6

[2005] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B58 of 2004

B e t w e e n -

DIANE McGRATH FINGLETON

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 FEBRUARY 2005, AT 10.21 AM

(Continued from 1/2/05)

Copyright in the High Court of Australia

GLEESON CJ:   Mr Jackson, could I just raise a procedural question?  If this immunity point had been taken at the trial, by what procedure would it have been taken?

MR JACKSON:   Well, it may have been taken, your Honour, by a demurrer to the indictment. 

McHUGH J:   It could not be taken by demurrer, could it, Mr Jackson, because the facts that she would rely on were not pleaded.  It seems to me that it could only be raised as a matter of law when all the evidence is in, and say upon ‑ ‑ ‑

MR JACKSON:   Your Honour, those are possibilities.  I said demurrer to the indictment, but it may well have been the particulars.

GLEESON CJ:   Can you have a look at page 5 of the appeal book?  I do not think that we have that letter of particulars before us, but according to page 5 you can see from a reading of the particulars that the accused is the Chief Magistrate and has been for some years.

MR JACKSON:   Yes.

GLEESON CJ:   And there is apparently some reference to an Act under which she has the responsibility of deciding transfers of magistrates around the State and so forth.

MR JACKSON:   I think the particulars are at page 35, your Honour.

GLEESON CJ:   I am not sure.  What is being referred to is a letter of particulars on page 5.

MR JACKSON:   These are the particulars, your Honour, I understand.  They went out under cover of a letter.

GLEESON CJ:   How do you see from what is on page 35 that she is the Chief Magistrate?

MR JACKSON:   It does not say that.

GLEESON CJ:   That is why I wondered whether the letter that was being discussed at the – this is the pre-trial directions hearing, is it not?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Is there a procedure in Queensland – in the case of R v Carroll, which was that Queensland case involving double jeopardy, do you remember that?

MR JACKSON:   Yes.  Your Honour, I would not say I remember the detail of it, but I remember the case and the ‑ ‑ ‑

GLEESON CJ:   It is in 213 CLR 635, and at page 654 in paragraph 62 there is a reference to pre-trial directions and rulings in Queensland, including quashing or staying an indictment. I wondered whether that would have been the procedure by which one would have raised the point, the subject of the ground of appeal with which we are concerned; that is, at the directions hearing that we see recorded on pages 4 and 5 and following there would be, on the basis of the indictment and the letter of particulars referred to in the transcript, a motion to quash the indictment or stay the proceedings.

MR JACKSON:   It could have been done under section 592A, your Honour, where – I do not know if your Honour has that ‑ ‑ ‑

GUMMOW J:   Yes, that is the section the Chief Justice is referring to.

MR JACKSON:   Yes, and your Honour will see that provides for a number of forms of proceeding, as it were, and they appear to include in 592A matters such as the quashing or staying of the indictment.  If I could use the analogy of striking out a statement of claim, it does not necessarily seem to be based on the assumption that the only evidence would be that which was contained in the indictment or particulars.  In the past there were two approaches:  one to look at only what was in the document; the other being to look at the document together with facts that were established or established in one way or another and then to see whether it should be struck out.

HAYNE J:   A motion to quash is dealt with by 596 and the grounds given in that section are limited in a way that do not seem immediately relevant to the question now in issue, do they?

MR JACKSON:   Your Honour, could I just say this, that if one looks at the expression “calculated to prejudice or embarrass the person in the person’s defence to the charge”, that would seem in a sense not to be particularly apposite, or that it is formerly defective, I suppose, would not also cover it.  But, your Honours, if one goes to 592A(2)(e), “deciding questions of law”, there seems no particular reason why an issue of that kind would not be encompassed by that.

HAYNE J:   Just so, but what order would the Court then make?  It would seem, at first blush, to my mind to be an order staying the indictment.  It would not be an order quashing it.  It would not be an order that would be made as on demurrer, but would be to stay.  Is that right?

MR JACKSON:   Your Honour, the decision – there would really be two aspects to it.  One would be the decision of the question of law, and if that were in favour of the appellant, it would be a decision that, upon certain facts, the terms of section 21A provided an immunity or were applicable – I will not attempt to draft it precisely.  That would then give rise to a question of what would follow from that.  The result would be, one would expect that in that case the indictment would not be further prosecuted, or the indictment would be asked to be returned.  It may be that the judge would then say that the indictment would be stayed.  Your Honours, that is probably what would happen.

GLEESON CJ:   In Truong v The Queen 205 ALR 72 in paragraph [111], in the joint judgment of Justices Gummow and Callinan, which was a case in which a person who had been convicted of homicide took the point on appeal for the first time that he had not been properly extradited from the UK to Australia. It was said:

However, the right given by s 42 to an extradited person is exercisable by demurrer or special plea under the applicable procedures of the trial court.  It is not open to plead the general issue, then after conviction, to seek to impeach that conviction in the fashion sought to be done in this case.

Does that – I am not suggesting it does, but I am asking, does that have anything to do with this case?

MR JACKSON:   Your Honour, the position which obtained in this case is that the point now taken by ground 1A is a point that was never taken until it was suggested in correspondence from the Court at the time of the hearing of the application for special leave, as I understand it.  That does leave a situation, however, where, if the point be correct, then there had been a conviction which in fact had been obtained in circumstances where there was not a liability to a criminal conviction.  Your Honour, I will obtain some instructions in just a moment, but I do not think we would seek to argue that if that were the case this Court could not set aside the conviction.  Your Honour, we would not suggest that this Court did not have power to set aside the conviction. 

GLEESON CJ:   Can I just ask another question for completeness.  Is the immunity conferred by the sections that we have been looking at one that can be waived?

MR JACKSON:   Your Honour, I have to say that I think the answer would be no to that.  If one takes the underlying purpose of it as being something which is for the benefit of the public it would not seem to lie in the place of the person entitled to the immediate benefit of it to say that that person would, themselves, waive an immunity of that kind.

GLEESON CJ:   Yes, thank you Mr Jackson.  Yes, Mr Walker.

MR WALKER:   On that last point the language of section 30, to remind your Honours, is that a judicial officer is not criminally responsible and it is somewhat difficult to see conduct in the nature of waiver creating criminal responsibility which the law prevents.  Your Honour Justice Kirby yesterday drew to attention some comments by Justice O’Connor in the US Supreme Court in Forrester v White (1988) 484 US 219 by reference to passages at pages 222, 227 and 230. It can be seen that the “strong medicine” comment drawn to attention by your Honour emanated from the dissenting judgment of Judge Posner in the intermediate appeal.

KIRBY J:   Which I think was upheld by the Supreme Court, was it not?

MR WALKER:   The appeal was upheld.  The dissenting judgment of Judge Posner was vindicated, as it were, but that case casts no light on the matter here.  It was, in one sense, in a long tradition of the court ascertaining whether the conduct putatively covered by an immunity was judicial in a sense required by the common law authorities.

GUMMOW J:   No, it was an action under 1983, section 1983, the Civil Rights Act 1871.  The question is, did the Civil Rights Act of 1871, now embodied in section 1983, apply to deprivation of rights by States?

MR WALKER:   Your Honour my point is that all the reasoning involves drawing upon the common law jurisprudence as to the distinction between what is judicial and what is not, bearing in mind that the conduct in question said to be covered by the immunity was that of employing someone on the administrative staff.

GUMMOW J:   At page 543 they say:

this Court has not been quick to find that federal legislation was meant to diminish the traditional common-law protections extended to the judicial process –

in the States.

MR WALKER:   Quite so.  The whole case is about construing the statute in light of the common law, the critical aspect of the common law being the requirement that the conduct in question be truly judicial.  In one sense, it is no different from a case a century before, Ex parte Virginia 100 US 339 (1880), which was the case of the State judge who had kept all negroes off the jury panel which it was his function to compile. That, it was decided by majority, did not fall within judicial immunity, because the compiling of a jury panel was not a judicial function so as to attract the immunity as it was then understood, as a matter of the development of the common law.

GUMMOW J:   As it happens, 1983 is revised by Act No 19 of 1996, I think, to include an express exception, “in respect of actions brought against a judicial officer for an act or omission taken in such officer’s judicial capacity”.

MR WALKER:   Yes.  So that in the United States, both as a matter of judicial decision as to how to construe statutes against the common law background and as a matter of congressional enactment, the distinction between judicial and non-judicial functions remains an extremely important one.  But in this case of course, it is the provisions of section 21A that render that of no application.

GLEESON CJ:   Mr Walker, what I am about to raise is probably a problem that does not exist in relation to the Queensland magistracy but, as you know, there are some courts, probably including the Federal Magistrates Court, in which the administrative functions conferred on the head of jurisdiction, or in the case of this Court all the members of the Court, include financial dealings.  Would the administrative functions or powers referred to in section 21A of the Queensland legislation with which we are concerned include any matters involving financial dealings; entering into contracts?

MR WALKER:   Yes.  If there were responsibilities, for example, in relation to accounting or record keeping, they would be administrative.

GLEESON CJ:   Including making a contract, for example, with the supplier of information technology?

MR WALKER:   Yes.

GLEESON CJ:   And would the effect of the section on which you rely be that if a fraudulent contract of that kind or a corrupt contract of that kind was entered into, there would be an immunity?

MR WALKER:   Your Honour, it will depend upon the facts as to whether or not the impugned conduct, that is, that which rendered it fraudulent or corrupt, could be seen as being in the exercise or performance of a function authority, albeit in excess of the authority.  In some cases, egregious cases, one could imagine that the conduct could not be so described.

GUMMOW J:   It could be a fraud on the power.

MR WALKER:   Yes, in the sense that it would be more than simply in excess of authority.  It would be outside entirely the scope of any conduct, colourably within the authority.  For example, stealing the money of the court could not, with respect, simply be seen to be in excess of authority whereas spending more than a regulation permitted on the year’s quota of shorthand writers would be in excess of authority rather than not in the exercise or performance of a function authority at all.  It will be fact specific, and there would undoubtedly be, in the unthinkable event of such a thing occurring, borderline cases raising, not for the first time with respect to immunities, the price paid by general language covering perfidy unimaginable in advance.

KIRBY J:   I can understand what you say in answer to the Chief Justice, but take a case similar to the one that arose in Crane’s Case in the Privy Council, where the senior magistrate or judge simply did not roster a person on.  Do you remember in Crane the Chief Justice formed the view that the judge was corrupt and simply did not roster him, and the judge disputed the corruption and he was held up.  We have had cases in Australia where persons of judicial office have not been assigned work.  Now, would that fall within the immunity in your proposition of section 21A?

MR WALKER:   Yes, it would.

KIRBY J:   Well, that is not a very pleasant result.

MR WALKER:   No.  The immunity unquestionably will, and we submit is meant to, cover unpleasant results.

KIRBY J:   What would be the result then, as in Crane’s Case - or take a case where a Chief Magistrate simply did not roster a person because of some personal - a magistrate, a commissioned magistrate just because of some personal animus.

MR WALKER:   Your Honour is asking me about the result of the application ‑ ‑ ‑

KIRBY J:   Of 21A.

MR WALKER:   Yes.  The result of the application of that by dint of the proper understanding of the imported last words of section 30 will be that although there was a duty on the judge to do that which was omitted to be done, namely, give proper consideration to the rostering of a colleague, the immunity would prevent there being any criminal responsibility.  There would of course be other responsibility but not criminal responsibility.

McHUGH J:   But it is the assigning judge that we are talking about would be the subject of the charge.

MR WALKER:   Yes, the assigning judge ‑ ‑ ‑

McHUGH J:   Not the judge is suspected of being corrupt.

MR WALKER:   No.  The assigning judge would not be criminally responsible for having failed for ex hypothesi bad reasons to carry out the duty of constructing a roster, including all colleagues, assuming there is such a duty.  There would be no criminal responsibility for that.  There would, however, be responsibility presumably for something in the nature of a mandamus as well as the other political responsibility resulting in removal.

KIRBY J:   Your point is that 21A is only conferring the statutory immunity, whatever may be the common law immunities residual, that is analogous to section 30, and section 30 is anchored firmly in the criminal law and is concerned only with criminal responsibility.

MR WALKER:   That is what this case is about, yes.

KIRBY J:   And that therefore so far as the statute is concerned, leaving aside any common law immunities, the magistrate’s only immunity is in respect of criminal responsibility and it probably would not be a criminal offence not to roster, but it would give rise to civil remedies for which there would be presumably only such argument as arose under the common law immunity, if any.

MR WALKER:   Yes, quite so. 

McHUGH J:   But would not many of these problems be solved by section 121 of the Code?

(1) A person who –

(a) being a justice not acting judicially, or being a person employed in the public service . . . corruptly asks for, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself ‑ ‑ ‑

MR WALKER:   That is of course - that is the classic corruption.  As I said in chief, bribery has understandably been to the forefront of those who seek to devise criminal sanction for judicial conduct, notwithstanding the high public interest in protecting judges by dint of immunity against sound as well as unsound allegations.  And that is critical, the words of the section, the common law.  It does not permit a distinction and a moment’s reflection on practicalities suggests why it must be so between justified and unjustified allegations, for example, of malice.

Your Honour Justice McHugh has noted section 121.  That was one of the provisions in relation to the 1899 version, still evergreen, of the Code.  Sir Samuel’s wording there is of some significance.  The concept of a justice not acting judicially can also be seen picked up in relation to the original definition of “judicial proceeding” found in section 119, where one sees that that included proceedings in any court or tribunal, including before a justice.

GUMMOW J:   Can you just look at sections 120 and 121, they are not all that well meshed.

MR WALKER:   No.

GUMMOW J:   The heading of 121 is misleading, really.

MR WALKER:   Yes.

GUMMOW J:   And 121 talks about a justice, 120 talks about a judicial officer.

MR WALKER:   Yes.

GUMMOW J:   “Justice” is defined in the interpretation legislation, as Justice Hayne points out.

MR WALKER:    Yes.

GUMMOW J:   In effect, justices of the peace and magistrates, I guess.

MR WALKER:   “Judicial officer”, as was used in section 30 in 1899, and which appeared in clause 32 of Sir Samuel’s draft – to his report - is not defined in the Code, and one is left, and with great respect to Sir Samuel, perhaps this is the best way it should always have been left, to ask the question as a matter of English, does this person hold, or is this person discharging an office, which is judicial and that, of course, would have been answered yes to people in the position of stipendiary magistrates.  There is an extension of the definition of “judicial officer” that your Honours will have noticed in section 120, the substance of which remains in its 1899 form, though the layout has been rendered more modern.  Now, that though tells one no more than that it may include umpires and arbitrators, reinforcing the suggestion, radical as it presumably now sounds, that the words “judicial officer” were simply to be understood as English undefined.  It is defined now, of course.  I am talking about the 1899 position that the Chief Justice asked me about yesterday, and that concludes my answer to the Chief Justice’s question.

HAYNE J:   Are you going to let us have copies of the provisions as they stood at various times, in connection with judicial officer?

MR WALKER:   May I, in consultation with my learned friend, put together a bundle that I hope will comprehensively cover all the provisions that we have respectively referred to, your Honour.

GLEESON CJ:   Thank you.

MR WALKER:   Yes, your Honour.  The matter was raised yesterday by my learned friend of the ‑ ‑ ‑

HAYNE J:   Just before you go to that, can I take you back to the point that was raised by the Chief Justice’s example concerning financial dealings.  You said that questions of fact and degree might intrude in such cases.  What is the criterion that would be engaged?

MR WALKER:   Whether the conduct alleged to constitute the offence could be characterised, or should be characterised, as conduct in the performance or exercise of a function and power, albeit in excess of the authority or contrary to a duty, in the case of an omission.

HAYNE J:   The reference to fraud on the power will evoke to my mind the question whether, reduced to its essentials, the Crown case against the appellant had not been just that, that the power was being exercised for retaliatory purposes perhaps and none other, but at least for retaliatory purposes.

MR WALKER:   For purposes extraneous to the purpose for which it was enacted, yes.  In administrative law terms, irrelevant consideration or lack of administrative law good faith, yes, your Honour.  That is evoked by some of the language of counsel.

HAYNE J:   Does that drive the argument about 21A to the point where these questions of fact and degree to which you refer may have to be set aside, and that the immunity granted by 21A is, putting it bluntly and crudely, either all or nothing? 

MR WALKER:   First of all, may I politely decline the word “degree”.  It is not simply a matter of “degree”.  It is just a matter of factual characterisation in which matters of degree, if one thinks in terms of the spectrum, will undoubtedly intrude.

GUMMOW J:   Is there any significance in the contrast between 21A and 30 of the Code?  Section 30 of the Code does say: 

although the act done is in excess of the officer’s judicial authority –

That is not repeated in 21A.

MR WALKER:   No, and that is why in the formulation I have given in answer to Justice Hayne I have used the language of 21A, which is necessary in order to described the conduct which may arguably be covered by the immunity, that is, the performance or exercise of functional authority, and then, because 21A requires the incorporation – so as to give it content – of whatever may be found in relation to the judicial immunity, one goes to section 30, and, as we have argued in chief, and as seems to be accepted by the lack of opposition to this from the respondent, one seeks to apply mutatis mutandis the reference at the end of section 30 to the act being done “in excess of the officer’s judicial authority” or the officer having been “bound to do the act omitted”. 

GUMMOW J:   The absence of the words “although the act done is in excess”, et cetera, in 21A may be explained by the same protection and that reads in the whole of 30.

MR WALKER:   Quite so, and that is why I started our argument yesterday by saying that the equivalency device, which is a very familiar statutory approach, nonetheless does raise some peculiar difficulties, bearing in mind that the equivalency in question is with something, judicial immunity, which is driven in its common law conception by a distinction between acts of the kind that 21A is protecting and judicial acts.  But that distinction must not destroy the incorporation of the content of provisions such as section 30, and it is for those reasons that we argue that the combination of 21A and 30 provides protection, notwithstanding the performance or exercise might, in administrative law terms, fall to be described as a “purported” performance or exercise.

HAYNE J:   That being the answer to the question of construction presented by performance or exercise of administrative function under an Act, that question of construction presented in connection with section 474 of the Migration Act in the privative clause decisions.

MR WALKER:   There are points of similarity, though obviously not complete.

KIRBY J:   Yes, but I asked you questions about this yesterday because it troubled me at the outset, whether the factual issue tendered for the jury was whether or not the Magistrates Act could be characterised as in the performance of the exercise of the administrative function as she was asserting ‑ ‑ ‑

MR WALKER:   No, it was not, your Honour.  Alas, no.

KIRBY J:   You say it was not put to the jury in that way?

MR WALKER:   No.  There was, for example, not a hint of that in the statutory summing up, where it is required they be instructed as to the law.  No, and I say alas.  It does not mean there was not material before the court, but it was not put to the jury as an issue, no.

McHUGH J:   Did I hear you say statutory summing up?

MR WALKER:   Yes.  I mean a summing up is required by statute.

McHUGH J:   Yes.

MR WALKER:   That is what I mean.

McHUGH J:   Is there anything in Queensland for a short form of summing up?

MR WALKER:   Yes.  The Code has for a long time had the capacity of a short form, yes.

KIRBY J:   Better have a reference to that.

MR WALKER:   Yes.  I will supply that as well, your Honour, yes.  Your Honours, yesterday there was reference by my learned friend to the grounds argued pre-trial for Mr Searles not to be called by the Crown.  May I make it clear that appeal book page 29, which was a reference not given to you yesterday, during argument there was raised, probably not persisted with and certainly not upheld by his Honour, by the Crown at about line 10 the fact that there was nothing adverse to the interest of the accused in the version to be given by Mr Searles as if that were a reason for the Crown not to call him.  Now, that would appear to have been squelched.

Then there is very little in my learned friend Mr Copley’s argument which added more flesh to the bones of the opposition.  In particular, my learned friend at page 30, lines 25 to 45 gave an example of a case, not the present case, in order to illustrate with reference to authority being discussed, cases of dubious credibility being a ground for a witness not to be called by the Crown.  That was disavowed, we think, by the reference:

I simply contrast it with this case.  This is not that sort of case at all -

at line 40.  Accordingly, the finding or conclusion by his Honour at appeal book page 34, between lines 20 and 25, does not convey any extra information at all, apropos what Justice Hayne commented upon yesterday, as to why it was “in the interests of justice that he be subject to cross‑examination by the Crown.”  The story then contains no statement by Madam Prosecutor at the trial itself as to why that course was being maintained.

KIRBY J:   Yes, but so what in the way in which it is developed?  I mean, Mr Searles was called in your case and it is said he rose to a higher height than he otherwise might have and that no miscarriage has been done.  We have these principles about restraint in the courts interfering with prosecutors’ decisions on witnesses.

MR WALKER:   Your Honour, it is simply this, and we have put it in writing.  I do not want to simply repeat myself.  It is to this effect.  The Crown had to exclude reasonable cause.  This is a Chief Magistrate who went to a solicitor retained in intimately connected matters to ask for advice on just this matter, legal advice on just this matter.  One cannot imagine anything more central to the question of reasonable cause, bearing in mind the danger of such an element in such an offence effectively but wrongly becoming the subject of a reversed onus. 

In our submission, there is something in the point that we have put in writing, namely that the simple calling of the witness on the defence side of the list leaves open an unsatisfied doubt as to whether the Crown’s case had been fairly put on that critical question of without reasonable cause, but we cannot take it any further than that and for all the reasons that your Honour Justice Kirby has noted.  There was reference yesterday to section 644 of the Code, “Admissions”.  Whether or not the statements by Mr Hanson of Queen’s Counsel rose to that status as one looks at it in transcript now, it seems clear that the learned trial judge did not so regard them at least to gauge from the list of issues to be proved by evidence rather than issues where the admission was sufficient under section 644 - see appeal book pages 446 to 447. 

Yesterday there was reference by my learned friend to some textual support in relation to the witness point to be gained from section 123 of the Code, the perjury offence.  In our submission, when one looks at the opening rather than closing words of that provision, notes the emphasis on it covering a position where somebody gives testimony “in . . . or for the purpose of instituting any judicial proceeding”, in our submission, it provides no support for describing as a witness, or drawing a line demarcating the achievement of the status of witness at the early point, which is required by the Crown case here. 

There is a textual reference I neglected to give your Honours in chief which is raised by my learned friend’s reference to how one should read the reference to act or law in the provisions which were argued yesterday concerning the source of the functions and powers which might be subject to the protection and immunity granted by section 21A.  That provision is section 8(1)(a) of the Magistrates Act where you actually see explicitly a reference to “any other Act”.  There was reliance placed yesterday on section 2 of the Acts Interpretation Act in what might be called the reflexive use whereby the Act says of itself that in a particular regard it is also included within the description of “an Act” to be interpreted in the way in which it requires.  Perhaps that is peculiarly necessary in a statute about the interpretation of statutes, that is, that there be an express requirement that it be read in the same way.

In any event, the fact that that is done specifically in the Acts Interpretation Act, which is, of course, a context of explicit, express rules about interpretation, could not and should not be taken as impliedly creating a rule – not listed as a rule and not explicitly appearing – of implication whereby the word “Act” or “law”, unless specifically said, never refers to the law in which itself it appears.

There was reference or reliance yesterday placed by my learned friend on a supposed distinction between external/internal, inside/outside, effects or operations of administrative functions and powers, it being suggested that those which were internal or inside, as it were, to the court need not be, should not be, as a matter of textual interpretation, and would not be covered by the protection in the immunity granted by section 21A. 

GUMMOW J:   I think to understand 21A, we have to understand section 30 of the Code.

MR WALKER:   Yes.

GUMMOW J:   To understand 30 of the Code, we probably have to understand what legislation at that time of the enactment of the Code dealt with restraint of magistrates’ and justices’ proceedings.

MR WALKER:   Your Honour says restraint?

GUMMOW J:   Yes, for excess of jurisdiction and so on.

HAYNE J:   Because in that regard, it is necessary, is it not, to have regard to Part 10 of the Act of 1886, the Justices Act, which concerned the protection of justices in the execution of their office and, among other things, explicitly provided for civil liability for acts not within jurisdiction:  see section 252 and following.

MR WALKER:   Yes.

HAYNE J:   So that in 1886, there is explicit provision in legislation for civil liability for acts in excess of jurisdiction ‑ ‑ ‑

MR WALKER:   Quite.

HAYNE J:    ‑ ‑ ‑ and we find in 30 ‑ ‑ ‑

MR WALKER:   No criminal responsibility ‑ ‑ ‑

HAYNE J:    ‑ ‑ ‑ criminal responsibility and we then see, later, what you would say is an equation for administrative action. 

MR WALKER:   In our submission, one can, perhaps should, start with section 21A, that is the most recent of the provisions that your Honours have just raised for me to consider, because that is what must be invoked to obtain the protection and immunity in this case, but as I said in-chief, it is yoked together by its reference to as, it happens in this case because this is a criminal case, section 30.  Section 30 is by no means exhaustive of the provisions or the rules, because it may be statutory or common law, which will be picked up by section 21A’s equivalency device.

However, those distinctions between judicial and non-judicial function and civil and criminal liability, which were fundamental and live and important and also the subject of enactment, as Justice Hayne has pointed out, as at 1899 when section 30 was enacted, are of no significance in this case precisely because section 21A goes out of its way to remove what would otherwise be the drastic effect of distinguishing between judicial and administrative and goes out of its way by incorporating section 30 as part of the general description of protection and immunities for judicial function, goes out of its way to include an abolition of criminal responsibility, or a non-application of criminal responsibility.

GUMMOW J:   Well, what is the relationship between section 30 and the common law?  Is there one under the Code?  As a non-Queensland person one is always nervous about asking this question.

MR WALKER:   Yesterday my learned friend drew to attention Sir Samuel’s marginal note, which my friend ‑ ‑ ‑

GUMMOW J:   What I am asking you is, given the terms of section 30, is there any scope left at all for the common law under the Code?

MR WALKER:   We would say not.  The civil liability is a different question.

GUMMOW J:   Yes.

MR WALKER:   But for criminal liability, as I think we have put in our written submission, it is a statutory question.

KIRBY J:   Can I ask you, in relation to the question Justice Hayne raised, which is very similar to the question I was asking yesterday, is there therefore, because it was not put during the trial, because this point was overlooked, still a factual question that has to be addressed by the jury, namely whether the magistrate was acting in performance or exercise of an administrative function or power, or is to be taken not to have been acting on that basis, but on a purely personal mission of her own.

MR WALKER:   No, because of the closing words of section 30 upon which we have addressed in writing, and yesterday in address.  Your Honours, as to the inside/outside distinction, in our submission, it is illusory.  The best example of that is to be found in subsection 5(5) of the Magistrates Act, and your Honours have seen in Reprint No 3 the official, as it were, note within the text of that provision making it clear that the administrative power with respect to the assignment of magistrates to localities includes a consideration, not only of the particular magistrate’s position, but of what is called the local community, particularly with respect to a loss of confidence by a local community in a reprimanded magistrate.

That is a very good and important example of the inability to say that that relates to inside matters only, and has nothing to do with the outside and, in our submission, the distinction is without textual support and is unhelpful in relation to a functional analysis.

Finally, in relation to the matters that go to the importance of the Crown’s onus with respect to disproving reasonable cause, may I respond to some matters, in particular raised by Justice Kirby in discussion with my learned friend yesterday.

First of all, the reference that Justice Kirby has made several times to evidence concerning “punching Basil’s lights out”, the references may principally be found at appeal book 259 but also at pages 120 and 157.  I will not take your Honours to the passages.

KIRBY J:   Would you give me those again, please.

MR WALKER:   Page 259 is the principal reference but there are also important references at 120 and 157.  I draw them to attention in particular because it is clear that that is attributed as a comment of my client’s husband as an explanation as to why he would not come to a drinks occasion being hosted by the Chief Magistrate at which Mr Gribbin was expected to attend.  At 259 there is reference to a degree of jocularity about it, that not being referred to in the Crown’s evidence-in-chief at page 120 but then the Crown’s questions were not such as to elicit any reference to the nature of the comment.  It was not a comment of an attitude by the Chief Magistrate herself threatening personal violence to the magistrate.  It was not of that kind at all.  The context is made clear by the passages. 

KIRBY J:   The content is not made clear then by the passage in the Court of Appeal’s reasons because ‑ ‑ ‑

MR WALKER:   But the evidence upon which the Court of Appeal must base the reference is plainly a reference to a spouse’s indignation, not the Chief Magistrate.  That is all I wanted to say in terms of the reference to that evidence.

KIRBY J:   It is pretty hard to use it in the reasons if that is the context.  I mean, all sorts of things are said in jest or anger or ‑ ‑ ‑

MR WALKER:   Quite, and some of us have spouses who get more indignant on our behalves than we would be ourselves. 

KIRBY J:   Yes, that is true and all partners from time to time get upset.

MR WALKER:   By “spouses” of course I mean partners.

KIRBY J:   It seems a little unfair of the Court of Appeal to have used it in that context if that is the way.

MR WALKER:   Yes.

KIRBY J:   I read it as referring to something that the Chief Magistrate said.

MR WALKER:   No.  As she says in her evidence at 259, she repeated her husband’s words, not by adopting it as a statement of her intention, but as an explanation as to why he would not come to the happy occasion.

Now, there was yesterday reference compendiously to, as it were, the procession of colleagues, other magistrates, who attributed the giving of the affidavit as the reason for the Chief Magistrate’s dissatisfaction or loss of confidence in Mr Gribbin.  Indeed, there is evidence to that effect, but there is also reference in the same passages to which my learned friend was referring to the so-called agenda item; that is, the co-ordinating magistrate’s meeting agenda item and interaction with the Magistrates Association being a cause of grievance between the Chief Magistrate and Mr Gribbin:  see, for example, Magistrate Wilkie, appeal book 145 at lines 25 to 35.

Your Honours, the disproof of “reasonable cause” in this case on the facts which were led by the Crown must, of course, focus on the reasonable cause being a ground for the impugned conduct which was the sending of the email, which in terms asked for Mr Gribbin to show cause why he should remain a co-ordinating magistrate.  So the reasonable cause to be disproved by the Crown related to the ground for asking Mr Gribbin to show cause.  Asking somebody to show cause and stating grievances, as she did in the email, is of course a procedure by which an opportunity of dissuasion is presented, an opportunity for correction is presented, an opportunity for, in particular, changing a mind.

So the ground in question was whatever the belief or sentiment could be assigned to the accused for asking cause to be shown.  That belief, of course, need not be a belief which is after the event, shown to be accurate as to facts or correct in terms of proper collegiate behaviour because ‑ ‑ ‑

McHUGH J:   But the way the trial judge put it to the jury at 447 after referring to the need to prove injury or detriment said at about line 30:

A loss of the status of coordinating magistrate and of the extra remuneration in addition to salary as a magistrate that goes with that status could be a detriment.  It is for you to decide whether such a loss would be a detriment.

I have some difficulties with that because the detriment, assuming there was a potential detriment, Mr Gribbin being called upon to show cause why he should not be removed from the position which would then result in loss of status and extra remuneration.  But there is a compound conception, really.

MR WALKER:   It is compound, but I am bound to say the issues presented at trial included the proposition that asking a man to show cause why X should not happen was to threaten X, and if X was a detriment, then asking him to show cause why it should not happen was to threaten it.  Now the X in this case was being removed as co‑ordinating magistrate and that is why, with respect, his Honour was correctly putting the issue as fought between the parties concerning detriment at that passage.

McHUGH J:   Yes, but a ‑ ‑ ‑

MR WALKER:   I accept that it was compound, but the parties had very plainly made that part of the direction an appropriate one.

McHUGH J:   I have a strong suspicion that counsel for your client was quite happy with the summing up in this case which dealt with generalities and was quite happy that the presiding judge did not go into the detail of all the evidence, most of which was against your client’s interests, and so he accepted a broad-brush approach to the case, that being his forensic choice and he was an experienced counsel at the trial.

MR WALKER:   Yes, and yes.

McHUGH J:   And it may well be that the learned trial judge thought that a fair trial for your client would be hampered if he went into too much detail about all the evidence.

MR WALKER:   In relation to summing up, under section 620:

it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.

McHUGH J:   I appreciate that, but that has a lot of content in it as a matter of judicial decision, including in Queensland.  In Mogg’s Case the President of the Queensland Court of Appeal said that ordinarily the duty of the trial judge includes identifying the issues, relating the issues to the relevant law and the facts of the case, and outlining the main arguments of counsel.  In RPS in this Court, Justices Gummow, Kirby and Hayne spoke about the need to give the jury instructions about the elements of the offence ‑ ‑ ‑

KIRBY J:   I think there is something in there, though, about – that it need not necessarily be too long‑winded.

McHUGH J:   That is so, and it requires the judge to put before the jury the case which the accused makes.  However, there is no ground of appeal in respect of this.  There was not raised in the Court of Appeal ‑ ‑ ‑

MR WALKER:   What my friend has said about that was, with respect, correct.

GLEESON CJ:   At the bottom of page 5 and the top of page 6 of the appeal book, trial counsel informs the judge before the trial:

the only substantial issues will be the purpose with which she sent the letter on the 18^th of September, her intent in sending the letter, and whether there was reasonable cause with respect to the first charge.  There are other issues but it would seem on the facts that we have there’s not going to be much in contention.

MR WALKER:   “They will be the central issues”.  Yes, that is not the only place where – and my friend has drawn attention to other statements which are equally clear.

KIRBY J:   It may be covered by the immunity, and that is the matter which we first have to consider, I suppose.

MR WALKER:   If there is not some ‑ ‑ ‑

KIRBY J:   If it is not, it is self-evidently a serious thing to prevent people freely giving evidence.  After all, this inquiry system is set up by the law of Queensland.

MR WALKER:   It is equally a ‑ ‑ ‑

KIRBY J:   To say the least, the action taken by your client would send a message that in the future magistrates had better not give evidence because if they do they will find themselves with the wrath of the Chief Magistrate for lack of loyalty.

MR WALKER:   Your Honour, we would dispute that a favourable result for my client in this case would send any such message.  The history is really entirely to the contrary.

KIRBY J:   Well, that is the serious public purpose of protecting the right of people to give free evidence before courts and tribunals.  It is very important.  It is absolutely central to the administrative – it is a bit like voting, we are seeing that at the moment in another place, but it is ‑ ‑ ‑

MR WALKER:   We made this position clear in-chief concerning section 119B.  I accept what your Honour says.  However, it is a very serious thing for someone to be convicted of an offence which did not exist in her case, or where a fundamental element of it has not been made out.  May it please your Honours.

McHUGH J:   There are other problems I have, and this relates to this question of “reasonable cause”.  What does “retaliation” mean?  Does it simply mean in response; does it mean revenge; does it mean punishment for?  What does it ‑ ‑ ‑

MR WALKER:   Because the text throws up this initially confronting possibility of a retaliation with reasonable cause, one would choose from the paraphrases or synonyms of “retaliation” those at the less ugly end of the spectrum because it is ‑ ‑ ‑

McHUGH J:   Response seems to me the more appropriate one, having regard to the reasonable excuse provision.

MR WALKER:   Yes.  Retaliation is unquestionably an ugly word.  It can mean, in certain contexts, nothing other than, what I might call a forceful response, but in many contexts, particularly in the context of protecting the administration of justice with respect to judges, jurors and witnesses, one would read it as a matter of ordinary English, including in legal context, as a very ugly word indeed.  However, the “without reasonable cause” phrase drives one to accept the possibility of retaliation that is with reasonable cause, and so one would surely exclude a meaning of retaliation which would perforce prevent there ever being reasonable cause, because it was always mala fide, it was always vengeful beyond proper limits.

GLEESON CJ:   Sometimes when you are exploring the margins of a statutory provision, it is possible to overlook the most obvious cases to which it would apply.  A judge who says to a witness, “The consequence of your continuing to give evidence of that kind is that I may deal with you for contempt of court” might possibly be said to be retaliating in some way.

MR WALKER:   Your Honour, as a matter of English, we would respectfully submit, that would never be an appropriate, colloquial, idiomatic or ordinarily understood use of English to say that the judge was retaliating.  It would certainly be a response.

GLEESON CJ:   With just cause.

MR WALKER:   And with buckets of reasonable cause.  As we say, and whether this was an afterthought the materials do not reveal, but for the expression “without reasonable cause” one would have thought retaliation was always nefarious.  However, with “without reasonable cause” as an extra element of the offence it includes, by definition, non – nefarious retaliation, thus one reads the word closer to the bland word response than to the very ugly word, for example, “revenge”.

McHUGH J:   That is why it seemed to me yesterday, and I think it still seems to me, that the summing up attracts the criticisms that Chief Justice Barwick made of the summing up in McBride’s Case

115 CLR.  It is just not sufficient to give the jury the terms of the section and so on.  One has to deal with the criteria and how it relates to the issues and facts in the case.

KIRBY J:   Among all your other added points you have not raised that.

MR WALKER:   I was about to say, your Honour, that there is a limit.

KIRBY J:   There is a limit.

McHUGH J:   But I raise this not as an independent ground but it is difficult to deal with your submission about reasonable cause, Mr Walker.  I just do not think that you can isolate this notion of reasonable cause without considering these other terms.

MR WALKER:   Well, I hope our argument makes it clear that we do not isolate it.  We do seek to read it in context.  We accept it must be all read together and none of our argument depends upon isolating it.  However, it is an element, an identifiable element, of a multi-element offence.  May it please your Honours.

MR JACKSON:   Your Honours, may I mention two matters before ‑ ‑ ‑

GLEESON CJ:   Yes, certainly.

MR JACKSON:   The first is simply to give your Honours a reference in relation to a question your Honour Justice McHugh raised a moment ago.  Your Honours will see at the bottom of page 447 in the last paragraph that the trial judge gave a number of possible meanings of the term “retaliation”.  He said:

repayment in kind, or requital, or reprisal -

and your Honours will see that there set out.  That is the first thing, your Honours. 

The second thing is if I could just say something in response to what was said by Justice Hayne about section 21A and section 30.  Could I just indicate so there is no question about it what our attitude is in relation to the relationship between the two provisions.  Your Honours, the position under section 21A is that a magistrate is given the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.  The judicial proceeding attracts section 30, including the last parts of section 30, acting outside jurisdiction. 

One then looks to section 21A.  It appears to attract those same aspects of section 30.  The question which remains is whether the power purportedly being exercised is an administrative function or power conferred on the magistrate under an Act – that is the submission we have already made – if it is, it applies.  The question in the present case is that one sees that the Chief Magistrate was purportedly exercising or was seeking to exercise a power under section 10(2) of the Act, the power to appoint, which is deemed, because of the Acts Interpretation provision, to include the power to remove.  The question which arises your Honours, is whether that power, section 10(2), is an administrative function or power conferred on the magistrate under an Act, in terms of section 21A.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 11.25 AM THE MATTER WAS ADJOURNED