Fittock v the Queen D8/2000

[2000] HCATrans 709

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D8 of 2000

B e t w e e n -

PETER ANDREW FITTOCK

Applicant

and

THE QUEEN

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 2.24 PM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear with my learned friend, MR S.H. MacFARLANE, for the applicant.  (instructed by McKinley Law)

MR R.S.L. WILD, QC:   If the Court pleases, I appear with my learned friend, MS J.M. BLOKLAND, for the respondent.  (instructed by the Director of Public Prosecutions (Northern Territory))

GUMMOW J:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I move to handle the application pursuant to section 40 of the Judiciary Act, can I resolve a matter of procedure concerning that which is mandated in section 78B of the Judiciary Act? Can I indicate to your Honours that yesterday there was an affidavit filed by the solicitor who acts for the applicant, and that affidavit concerns compliance with section 78B. I can indicate to your Honours that the 78B notices were issued on 6 November to all Attorneys-General throughout the Commonwealth and I can indicate that replies have been received from all Attorneys-General throughout the Commonwealth indicating that they do not wish to intervene at this stage. However, as is often the case, they seek further instructions if there is an order removing the constitutional issues into this Court.

Finally, I should say that in so far as the Attorney of the Northern Territory is concerned, the letter that was returned on behalf of the Attorney and under the hand of the Solicitor-General for the Northern Territory indicates that should – and I am reading from it, dated 8 November, “Should any part of the matter be removed, the Attorney‑General intends to intervene.”  So, that is the position.

GUMMOW J:   Now, what is the current state of the appeal to the Northern Territory court here?

MR WENDLER:   It is listed for mention in a call over on 6 December, is the latest update on its progress.

GUMMOW J:   Are there any grounds other than these grounds here?

MR WENDLER:   I am sorry, your Honour?

GUMMOW J:   What are the other grounds, if any?

MR WENDLER:   There are other grounds which concern – some concern the instructions given to the jury by the trial judge.

KIRBY J:   Why should you not have to exhaust all those grounds before you agitate the constitutional ground?

MR WENDLER:   We have certainly considered that but the constitutional ground – there would be dislocation in any case.  The problem with the constitutional ground is that the Court of Appeal of the Northern Territory could not entertain it because they would be bound by Bernasconi.  None of the principles that I seek to agitate in justification for an order removing the constitutional issues could be entertained in the Court of Appeal.

GUMMOW J:   No, but you might win on some of the other grounds.

MR WENDLER:   Well, we might not, too.

KIRBY J:   You show a lack of faith in your other grounds.

MR WENDLER:   No, your Honour.  I do not want to sound facetious or facile about it.  The constitutional grounds that are raised are matters of importance.  They do not require any factual matters to be resolved.

KIRBY J:   I asked the question because, as you know, the Court is reserved in the matter of Brownlee and some of the questions relating to the approach one takes to section 80 in that case may be of relevance to the determination of the point you wish to raise in this case.

MR WENDLER:   That is certainly - - -

KIRBY J:   They would be known, by inference, once the Court of Appeal of the Northern Territory has disposed of any other grounds which might dispose of the whole matter.

MR WENDLER:   Yes, but that does not dispose of what I might describe as the Kable principle, Chapter III principle.  Brownlee would have nothing to say about that.

GUMMOW J:   What is that principle supposed to be here?  You cannot have mandatory sentences for murder?

MR WENDLER:   Well, let us just think about it for a moment.  The submission that we seek to put is this, that the order that section 160 - - -

GUMMOW J:   No, just bear with me for a moment.  Assume, as is the case, that some offences under the Commonwealth Crimes Act carry life imprisonment as the penalty.  Are you saying those provisions which invest federal jurisdiction with them, of course, are inconsistent with the exercise of the judicial power of the Commonwealth?

MR WENDLER:   Well, they may, depending on the way the sentencing regime is executed.  The focus is not upon the fact of there being a mandatory sentence regime, the focus is upon the question whether the court that imposes it with its jurisdiction, in those circumstances, is devalued and in that sense brought into question so far as its integrity and position in the Australia-wide court structure is concerned.

The Kable principle, in my respectful submission - - -

HAYNE J:   They are just words, Mr Wendler, just words.

MR WENDLER:   Well, they are not words.  They are words which concern or are connected to a principle which has been fashioned by this Court.  When I use the word “Kable principle”, of course what I mean is the principle that emerged as a result of the structure of the Constitution and in relation to Chapter III of the Constitution. Now, if State courts which are one of the category of courts capable of exercising the judicial power of the Commonwealth and a category of court which has a constitutional right of appeal to this Court, if that category of court is compelled to exercise its jurisdiction in a certain way, why should not a Territory court be compelled or restricted in the manner it exercises its jurisdiction.

GUMMOW J:   That is what I am trying to find out.  You would say, as a matter of undoubted federal law, you cannot have this penalty?

MR WENDLER:   You can have the penalty but to the extent that dispossesses the court of a discretionary regime.  It devalues the nature of its jurisdiction.

GUMMOW J:   Devalue or otherwise, something has to end up as invalid.

MR WENDLER:   Well, section 164 is the section that has to end up as invalid.

GUMMOW J:   No, but in the example I put to you, some sections in the Crimes Act would be invalid.

MR WENDLER:   Yes, but the Crimes Act still has a mechanism for a discretionary approach to sentencing.  You see, this particular offence, murder, has no capacity for anything other than a mandatory life sentence.  The jurisdiction that is given to the court by section 164 is to do nothing other than to sentence in such a fashion that there is no capacity in the exercise of its jurisdiction to mollify that sentence in some way.  In other words, everyone is sentenced uniformly, irrespective of the facts of the circumstances.  Now, murder occurs in all sorts of circumstances.  It occurs in horrific circumstances; it occurs in circumstances which are not so horrific.

GUMMOW J:   Just murder.

MR WENDLER:   Yes, it is just murder.

GUMMOW J:   Just a murder.

MR WENDLER:   But it is not so much as just murder, it is the way the court handles the circumstances of the offence.  Now, if the jurisdiction given to the court to handle that offence - - -

GUMMOW J:   You may be right about all of this but why is not the practical answer to all of this, when the Court has already reserved in Brownlee, for you to go on with the merits of your appeal, such as they, which can be dealt with pretty quickly by the sound of it, and then these matters can come back here, if need be - and they may prove moot – on a leave application after the disposition of your substantive matter in the Northern Territory Court of Appeal.

MR WENDLER:   The problem with that is that it leaves open what I describe once again as an area which Brownlee will not address, and, of course, it will not address the application of the Kable principle.

HAYNE J:   None of it arises if any of grounds 5 to 8 at page 19 of your proposed amended notice of appeal lead to a new trial.  No other questions that you present to us will arise.

MR WENDLER:   Yes, I accept that.  I mean, if one of the conviction grounds is made out successfully, I accept that the order would have to be a retrial and the other matters may be moot - well not moot, they would be irrelevant, but one of the ‑ ‑ ‑

KIRBY J:   This would not be closing the door to you, Mr Wendler, or your client.

MR WENDLER:   No, I understand that.

KIRBY J:   It would simply be taking the practical point that you have an appeal and you have other grounds, we have Brownlee, and the two may well happily come together in the sense that ‑ ‑ ‑

GUMMOW J:   That is right.

KIRBY J:   ‑ ‑ ‑ the appeal will be concluded and Brownlee will be out and then you may consider that, in the light of Brownlee, there is no point in pursuing your appeal or you may consider that it is very strengthened and the Crown may take the same view.

MR WENDLER:   To some extent I accept and I understand what your Honour is saying to me, but the Brownlee matter will not touch on the legal relationship between section 122 and section 80 of the Constitution.

KIRBY J:   Not exactly, but there was a case, was there not, Ah Poh Wai, taking the point, from Western Australia, concerning reserve jurors?  In that case the Court by majority declined special leave and that was mentioned in argument in Brownlee.

MR WENDLER:   Yes.

KIRBY J:   That was from the Court of Criminal Appeal Western Australia.

MR WENDLER:   Yes, but we are dealing with a Territory court here, not a State court, and that is the big difference and the trouble, if that is the right expression, that Bernasconi has created for Australian federal constitutional law ‑ ‑ ‑

KIRBY J:   Well, that is a suggested impediment but ultimately you have to get back to section 80 of the Constitution.

MR WENDLER:   Yes.

KIRBY J:   That was the context in which the Court of Criminal Appeal of Western Australia decided the matter.

MR WENDLER:   I accept that, but there are different considerations when we are dealing with a State court.  We are not dealing with a State court exercising federal jurisdiction in this case.  We are dealing with a Territory court ‑ ‑ ‑

GUMMOW J:   That is harder for you, you see.

MR WENDLER:   I am sorry, your Honour?

GUMMOW J:   We are putting the most favourable scenario to you in a sense.

MR WENDLER:   Yes, I understand that.  Now, if your Honours’ view, having regard to the Brownlee situation and the fact that these other grounds of conviction, of course, have not been agitated, then I would have to accept that this matter should go over until Brownlee is decided and the substantive grounds of appeal have been resolved.

KIRBY J:   Why would we take that course, given that you have, in a sense, on one view, jumped the gun and taken this proceeding out of turn?  Why would we not simply dismiss the application but without in any way preventing your coming along at a later stage if you are still minded to try to invoke the jurisdiction of this Court?

MR WENDLER:   We have not really jumped the gun.  Just per chance we are here at this time and Brownlee was ahead of us.  I mean, these proceeding were filed some time ago, but you cannot get on in this Court in 24 hours, of course, in a matter like this.

KIRBY J:   I said “jumped the gun” only because you have a substantive appeal and that is an appeal which may dispose of the whole matter and you have tried to jump the queue, in a sense, before that substantive appeal is disposed of.

MR WENDLER:   Yes.  Well, only because, as I say, the problem of the Bernasconi situation, if that is the ‑ ‑ ‑

KIRBY J:   Yes, I realise that ‑ ‑ ‑

GUMMOW J:   We all know about Bernasconi.

MR WENDLER:   That is the reason why there would be dislocation in any case because none of these constitutional issues could be agitated in the Court of Appeal because of the fact the Court of Appeal would be bound by Bernasconi.

GUMMOW J:   We realise that, but these merits, they could be litigated though.

MR WENDLER:   They could be and, of course, if these matters were litigated, procedurally we could not use the section 40 vehicle because there would be nothing left to remove.

KIRBY J:   Now, I heard you to say that you asked the Court, if the Court were minded that the matter should not be dealt with in advance of the decision in Brownlee or the hearing in the Court of Appeal of Northern Territory, that we should adjourn the matter.  Now, if one were of the view that you really ought to have dealt with the appeal first before coming here on this matter, why would one adjourn it?  Why would one not

simply dismiss it as premature, because that does not prevent your coming back to the Court?

MR WENDLER:   No, quite.  I understand that we are not shut out, but what if we do not get on in the Court of Appeal in the next six months or thereabouts?  I mean, at the moment it is in the list for a mention date and so on.

GUMMOW J:   Well, having a view to what has transpired here today, maybe it will move along a bit if you push it.

MR WENDLER:   Yes, I understand the procedural impediments and the inclination that your Honours have in relation to entertaining this, in many ways, special application, special procedural application. Section 40 applications are not as common, of course, as special leave applications. If the Court pleases, I do not think I can push it any further.

GUMMOW J:   We express no views as to the merits of the grounds which the applicant would seek to agitate before this Court if the order for removal now sought were made.  We are, however, of the opinion that in the setting of this litigation, in particular the pendency of the appeal to the Northern Territory Court of Appeal on other grounds, that this removal application is premature.  Accordingly, the application for removal is dismissed.

The Court will adjourn to reconstitute.

AT 2.39 PM THE MATTER WAS CONCLUDED