Garth v The Queen

[2016] NSWCCA 203

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Garth v R [2016] NSWCCA 203
Hearing dates:	2 June 2016
Date of orders:	22 September 2016
Decision date:	22 September 2016
Before:	Bathurst CJ at [1]; Beazley P at [36]; Simpson JA at [37]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW – appeal – assault causing death – whether indictment charging an offence under s 25A of the Crimes Act 1900 (NSW) discloses an offence punishable by law – whether appropriate to determine constitutional question
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 61 Crimes Act 1900 (NSW), ss 19A, 25A, 25B, 35 Criminal Appeal Act 1912 (NSW), s 5F Interpretation Act 1937 (NSW), s 31
Cases Cited:	CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303 at [5] Lambert v Weichelt (1954) 28 ALJR 282 Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142 R v Mai (1992) 26 NSWLR 371 at 377 Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50 Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2
Category:	Principal judgment
Parties:	Hugh Bacalla Garth (Applicant) Crown (First Respondent) Attorney-General for New South Wales (Second Respondent)
Representation:	Counsel: G Bashir SC / B Lim (Applicant) F Veltro (First Respondent) M G Sexton SC / B K Baker (Second Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent) NSW Crown Solicitor’s Office (Second Respondent)
File Number(s):	2014/133531
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 8 April 2016 Before: Norton SC DCJ File Number(s): 2014/133531

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged by indictment with an offence under s 25A(2) of the Crimes Act 1900 (NSW) (Crimes Act) (Count 1). Section 25A(2) makes it an offence to unlawfully assault another person by intentionally hitting the other person and thereby causing their death, while intoxicated. Section 25B of the Crimes Act mandates that a court is required to impose a sentence, and non-parole period, of not less than eight years on a person guilty of an offence under s 25A(2).

The applicant sought an order that the indictment be quashed on the ground that Count 1 did not disclose an offence known to law. He contended that the offence created by s 25A(2) and s 25B was constitutionally invalid. The primary judge dismissed the motion, finding that s 25B could be severed from s 25A and that, in those circumstances, it was unnecessary to determine the constitutional question. The applicant appealed.

The issue on appeal was whether Count 1 disclosed an offence known to law and whether that required determination of the constitutional question.

The Court held (Bathurst CJ, Beazley P and Simpson JA agreeing) dismissing the appeal:

(i)    It is settled practice across all courts in the judicial hierarchy to decline to deal with a constitutional question unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties: [19]-[22] (Bathurst CJ); [36] (Beazley P); [37] (Simpson JA).

Lambert v Weichelt (1954) 28 ALJR 282; Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50; Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2 applied

(ii) An offence under s 25A(2) of the Crimes Act is punishable by s 25A(2), which provides for a maximum penalty of 25 years. Section 25B of the Crimes Act does not impose a punishment, it operates to impose a constraint on the sentence which can be imposed. Even if the constraint is constitutionally invalid, an offence under s 25A(2) remains an offence punishable by law. Section 25B does not operate as a penalty-creating provision: [24], [29] (Bathurst CJ); [36] (Beazley P); [37] (Simpson JA).

Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142 considered

(iii) The structure of ss 25A and 25B of the Crimes Act indicate a legislative intention to separate the offence-creating provision from the constraint. The offence is created by s 25A alone, not in combination with s 25B: [30] (Bathurst CJ); [36] (Beazley P); [37] (Simpson JA).

(iv)   The issue of severance only arises once a provision has been determined constitutionally invalid; it does not arise in determining whether a constitutional issue should be addressed: [33] (Bathurst CJ); [36] (Beazley P); [37] (Simpson JA).

Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 applied

(v)   An offender’s inability to properly assess his or her decision to plea does not justify the court dealing with a constitutional issue that does not arise in the proceedings: [34] (Bathurst CJ); [36] (Beazley P); [37] (Simpson JA).

Judgment

1. BATHURST CJ: By an indictment presented at the District Court at Parramatta on 15 October 2015, the applicant, Hugh Baccalla Garth (the applicant), was charged with the following offences:

“1.   On the 3rd day of May 2014, at Rooty Hill in the State of New South Wales, did when intoxicated and over the age of 18 years, unlawfully assault Ray Manalad by intentionally hitting Ray Manalad with a clenched fist, thereby causing the death of Ray Manalad.

S 25A(2) Crimes Act 1900 Law part code 81829

2.   On the 3rd day of May 2014, at Rooty Hill in the State of New South Wales did cause grievous bodily harm to Myrik ONG and was reckless as to causing actual bodily harm.

S 35(2) Crimes Act 1900 Law part code 77098”

2. The applicant was not arraigned on the indictment and the copy of the indictment provided to the Court has not been signed by a Crown Prosecutor. No point was taken as to these matters.

3. By notice of motion filed on 9 November 2015, the applicant sought an order that the indictment be quashed on the ground that Count 1 did not disclose an offence known to law. In the alternative, an order was sought that the indictment be permanently stayed as an abuse of process of the court. The application for a permanent stay was ultimately abandoned.

4. The basis of the application was that the offence created by s 25A(2) and s 25B of the Crimes Act 1900 (NSW) (Crimes Act) was unknown to law. The argument, broadly speaking, was that s 25B was repugnant to the judicial process in a fundamental degree and that it distorted the institutional integrity of the court by requiring the court to proceed in a manner that does not ensure equality before the law and in a manner that involves arbitrary and non-judicial punishment.

5. The primary judge dismissed the motion. I have dealt with her Honour’s reasons in more detail below but her conclusion was that s 25A of the Crimes Act could be severed from s 25B and that, in those circumstances, the indictment disclosed an offence known to law irrespective of the constitutional validity of s 25B.

The relevant legislation

6. Section 25A of the Crimes Act provides as follows:

“25A   Assault causing death

(1)   A person is guilty of an offence under this subsection if:

(a)   the person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and

(b)   the assault is not authorised or excused by law, and

(c)   the assault causes the death of the other person.

Maximum penalty: Imprisonment for 20 years.

(2)   A person who is of or above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated.

Maximum penalty: Imprisonment for 25 years.

(3)   For the purposes of this section, an assault causes the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object as a consequence of the assault.

(4)   In proceedings for an offence under subsection (1) or (2), it is not necessary to prove that the death was reasonably foreseeable.

(5)   It is a defence in proceedings for an offence under subsection (2):

(a)   if the intoxication of the accused was not self-induced (within the meaning of Part 11A), or

(b)   if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed (not being a temporary self-induced impairment).

(6)   In proceedings for an offence under subsection (2):

(a) evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused’s breath, blood or urine at the time of the alleged offence as determined by an analysis carried out in accordance with Division 4 of Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002, and

(b)   the accused is conclusively presumed to be intoxicated by alcohol if the prosecution proves in accordance with an analysis carried out in accordance with that Division that there was present in the accused’s breath or blood a concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

(7)   If on the trial of a person for murder or manslaughter the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1) or (2), the jury may acquit the person of murder or manslaughter and find the person guilty of an offence under subsection (1) or (2). The person is liable to punishment accordingly.

(8)   If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1), the jury may acquit the person of the offence under subsection (2) and find the person guilty of an offence under subsection (1). The person is liable to punishment accordingly.

(9)   Section 18 does not apply to an offence under subsection (1) or (2).

(10)   In this section, cognitive impairment includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness or a brain injury.”

7. Section 25B provides as follows:

“25B   Assault causing death when intoxicated—mandatory minimum sentence

(1) A court is required to impose a sentence of imprisonment of not less than 8 years on a person guilty of an offence under section 25A (2). Any non-parole period for the sentence is also required to be not less than 8 years.

(2) If this section requires a person to be sentenced to a minimum period of imprisonment, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or no sentence (or to impose a lesser non-parole period).

(3)   Nothing in this section (apart from subsection (2)) affects the provisions of the Crimes (Sentencing Procedures) Act 1999 or any other Act or law relating to the sentencing of offenders.

(4)   Nothing in this section affects the prerogative of mercy.”

8. These sections were inserted into the Crimes Act with effect from 31 January 2014. In the Second Reading Speech that introduced the legislation, the following remarks were made:

“A person will be guilty of the new offence of assault causing death as proposed by new section 25A (1) in this legislation if he or she unlawfully assaults another person by intentionally hitting the other person with any part of his or her body, or with an object he or she is holding, causing the death of the other person. The offence will carry a maximum penalty of 20 years imprisonment. A person will be criminally responsible for the offence even if the person does not intend or foresee the death of the other person, and even if the death was not reasonably foreseeable. If the offender was intoxicated by alcohol or drugs at the time of the assault, a minimum mandatory sentence of eight years imprisonment and a maximum sentence of 25 years imprisonment apply. A ‘drug’ includes a drug under the Drug Misuse and Trafficking Act and a poison, restricted substance or drug of addiction in the Poisons and Therapeutic Goods Act. This will capture steroids as well as psychoactive substances.”

The primary judgment

9. The primary judge referred to the generally settled practice of declining to answer constitutional questions where it was unnecessary to do so. She stated that, in her view, it was difficult to see how the applicant would suffer significant prejudice if it was determined that s 25B could be severed from s 25A and that, if s 25A standing alone disclosed an offence known to law, the trial could proceed.

10. The primary judge concluded, relying on s 31(2) of the Interpretation Act 1937 (NSW) (Interpretation Act), that s 25A(2), which her Honour described as the offence creating provision, was capable of standing alone irrespective of any separate section providing for a mandatory minimum penalty. In those circumstances, the primary judge dismissed the notice of motion without finding it necessary to consider the constitutional question.

11. The applicant contended the primary judge was in error in adopting this approach.

The applicant’s submissions

12. The applicant submitted that the question of whether it is necessary to determine a constitutional issue depends on whether there exists a state of facts which makes it necessary to decide the question in order to do justice and determine the rights of the parties. He submitted that “necessary” means material to the determination of the controversy and that it was not unnecessary simply because the issue could be determined at a later point in time.

13. In that context, the applicant submitted that it was necessary to identify the justiciable controversy. He submitted that, in the criminal jurisdiction, the particular controversy is not split into the trial and sentencing hearing. He submitted that the punishment of offences encompasses both the trial and the imposition of sentence in a single judicial controversy.

14. The applicant submitted that, in the present case, the Crown alleged that he was guilty of an offence against s 25A(2) of the Crimes Act and liable to punishment in accordance with s 25B of that Act. He submitted that the justiciable controversy therefore encompasses the assertion by the Crown that the applicant is guilty and liable to punishment under s 25B. He submitted that that assertion is implicit in the indictment. The applicant submitted that the primary judge proceeded on an erroneous basis, namely that the accused must be convicted before there is a justiciable controversy about his liability to punishment.

15. Senior counsel for the applicant submitted, in effect, that an indictment which only relied on s 25A to the exclusion of s 25B would be a different indictment although “it may look the same”. She submitted that an indictment not relying on s 25B would mean that the substance and character of the offence changed completely because the accused would be going to trial for an offence that did not contain a mandatory minimum sentence and was thus in a different position in terms of appreciating and determining what his or her plea might be. She submitted that s 25B was inextricably entwined with s 25A and with the creation of the offence.

16. Senior counsel for the applicant placed some reliance on that passage of the Second Reading Speech to which I have referred above at [8]. She submitted that, in the present case, it was not the intention of the legislature that s 25A(2) would stand alone. She submitted that the minimum penalty was inseverable from the offence.

17. Senior counsel for the applicant also submitted that the primary judge was in error in relying on s 31(2) of the Interpretation Act, submitting that it would only arise if s 25B of the Crimes Act was held to be constitutionally invalid.

18. Senior counsel for the applicant also submitted that the constitutional question should be determined as a matter of procedural fairness and, more broadly, that it was in the interests of justice and the administration of the criminal law for offenders to understand their liability to punishment.

Consideration

19. The practice of declining to deal with a constitutional issue unless it is necessary to do so is well established. In Lambert v Weichelt (1954) 28 ALJR 282, Dixon CJ stated that “[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties”: at 283. Although his Honour was referring to the High Court, that practice is common to all courts in the judicial hierarchy.

20. In Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50, Isaacs ACJ stated that “[a] Court will not proceed to declare a statute invalid unless that be necessary as a step in determining the rights of parties”: at 342.

21. More recently, in Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2, Crennan J referred to the settled practice to which I have referred: at [355].

22. In that context, it must be remembered that the issue between the parties in the present case is whether Count 1 on the indictment discloses an offence known to law. If this can be determined without having to consider the constitutional challenge to s 25B of the Crimes Act, then the latter issue should not be considered.

23. As the applicant pointed out, an indictment must identify the nature of the offence and the manner in which it has been committed and the indictment must disclose an offence punishable by law: R v Mai (1992) 26 NSWLR 371 at 377; Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303 at [5].

24. The essence of the applicant’s argument was that, as s 25B was constitutionally invalid, the offence charged was not one punishable by law. The difficulty with this argument is that the offence is punishable by s 25A(2) itself, which provides for a maximum penalty of 25 years. Section 25B does not impose a punishment. Rather, it operates to impose a constraint on the sentence which can be imposed. Even if the constraint is constitutionally invalid, an offence under s 25A(2) remains an offence punishable by law.

25. A somewhat similar situation was considered by this Court in Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142, an appeal by Mr Ngo against a life sentence imposed on him for the murder of Mr John Newman, an elected Member of the Legislative Assembly of NSW. At the time of the offence, s 19A of the Crimes Act provided as follows:

“19A   Punishment for murder

(1)   A person who commits the crime of murder is liable to penal servitude for life.

(2)   A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life.

(3)   Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life).

(4)   This section applies to murder committed before or after the commencement of this section.

(5)   However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.

(6)   Nothing in this section affects the prerogative of mercy.”

26. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) came into force after the date of Mr Newman’s murder, but before Mr Ngo was sentenced for the offence. The section was in the following terms:

“61   Mandatory life sentences for certain offences

(1)   A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

27. The appellant in that case sought to argue that the sentencing discretion miscarried on the basis that the sentence was imposed pursuant to s 61(1) of the Sentencing Procedure Act and that that provision did not have retrospective effect.

28. The argument was rejected. In the course of her judgment, Simpson J (as her Honour then was), with whom the other members of the bench agreed, made the following remarks concerning the interaction of s 19A of the Crimes Act and s 61(1) of the Sentencing Procedure Act (at [64]-[65]):

“[64] The first was that the sentencing alternatives were (i) sentencing the applicant ‘under s 61(1)’ and (ii) sentencing the applicant ‘at common law’. That is to misunderstand the role of s 61(1). It assumes, wrongly, that s 61(1) is a penalty-creating provision in the same way as s 19A(1) is a penalty creating provision (although the applicant’s argument ignored s 19A(1)). It is incorrect to treat s 61(1) as a penalty-creating provision. While s 19A(1) renders a person convicted of murder liable to imprisonment for life, s 61(1) does no such thing. It is a provision that directs a court (although, perhaps, superfluously) that, in the circumstances it specifies, a life sentence must be imposed.

[65] Any sentence imposed in respect of a conviction for murder is imposed under s 19A(1), even where, by reason of the application of s 21(1) of the Sentencing Procedure Act, it is a sentence for a determinate period.”

29. Section 25B of the Crimes Act, in my opinion, similarly does not operate as a penalty-creating provision. Any punishment is imposed by s 25A(2).

30. The applicant sought to overcome this difficulty by submitting that, as a matter of construction, s 25B was inextricably intertwined with s 25A(2) and with the creation of the offence. The difficulty with this argument is that it does not reflect the structure of the legislation. The legislature deliberately separated the offence creating provision from what I have described as the constraint. To read the section in the manner suggested by the applicant would be contrary to that express legislative intention.

31. Little assistance is to be gained from the Second Reading Speech. The passage to which I have referred above at [8] does no more than summarise the effect of the legislation. It says nothing as to whether the punishment is imposed by s 25A(2) or s 25B.

32. In those circumstances, the primary judge was correct in concluding that the indictment, so far as it related to Count 1, disclosed an offence known to law.

33. I should add two matters. First, although the primary judge placed some reliance on s 31(2) of the Interpretation Act, that section and the principles relating to it would only fall for consideration if it was concluded that any part of the legislation was invalid: Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35 per Gageler J at [168]-[178]. Having regard to the view I have taken, no question of severance or of reading down the legislation arises in the present case.

34. The second matter is this: the applicant complained that, absent determination of the constitutional validity of s 25B, he has been unable to properly assess whether he should plead to the offence or otherwise. Whether or not this is the case, it does not provide a justification for dealing with an issue that does not arise in the proceedings, even if the Court had power under s 5F of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to do so. Further, this decision does not preclude the applicant from seeking relief other than an order quashing the indictment. It may be that the applicant would have standing to seek declaratory relief as to the constitutional validity of s 25B: see CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2 at [102] and the cases there cited. However, this Court, constituted as a Court of Criminal Appeal under the Criminal Appeal Act, has no jurisdiction to hear proceedings for such relief. Its only jurisdiction is to hear the appeal under s 5F of the Criminal Appeal Act seeking an order that the indictment be quashed.

35. In these circumstances, leave to appeal should be refused.

36. BEAZLEY P: I agree with Bathurst CJ.

37. SIMPSON JA: I agree with Bathurst CJ.

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Decision last updated: 22 September 2016