Handlen v The Queen

[2017] HCATrans 72

[2017] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B67 of 2016

B e t w e e n -

DALE CHRISTOPHER HANDLEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 7 APRIL 2017, AT 9.31 AM

Copyright in the High Court of Australia

MR W.C. TERRACINI, QC:   May it please your Honours, I appear for the applicant with MS E.R. NICHOLSON.  (instructed by Burchill & Horsey Lawyers)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR B.J. POWER for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ:   Yes, Mr Terracini.

MR TERRACINI:   Your Honours, this is an application where we require an extension of time and so I rely on my solicitor’s affidavit.  I have nothing further to add in respect of that aspect.

KIEFEL CJ:   Is there any objection to the extension?

MS ABRAHAM:   No, there is not.

KIEFEL CJ:   You have the extension, Mr Terracini.

MR TERRACINI:   Thank you, your Honour.  This is an application where the applicant was tried in respect of federal offences under the Criminal Code (Cth) and it is, we would submit, a narrow appeal in terms of the interpretation of section 132C of the Evidence Act (Qld). We rely on our submissions in respect of that and our submissions in reply.

If I could just touch on some matters raised by my friend, the respondent.  This issue was in fact raised in writing before the Queensland Court of Criminal Appeal and comment was made as to the rejection of our argument as to the interpretation of 132C at page 83 of the application book which is paragraph [86] of the judgment of the Queensland Court of Criminal Appeal.  So our contention is that this was raised squarely with the Court of Criminal Appeal and at page 83 in the last paragraph, the Queensland Court of Criminal Appeal said this:

The appellant’s submissions as to judicial fact finding on sentencing are misconceived in that they fail to reflect that the principles stated by the High Court in Olbrich and applied in Leach and Cheung have been modified in Queensland by s 132C Evidence Act.

KIEFEL CJ:   Yes, but the question as to whether sections 68, 79 and 80 of the Judiciary Act pick up section 132C was not raised before the Court of Appeal, was it?

MR TERRACINI:   That is so.

KIEFEL CJ:   That is the question. 

MR TERRACINI:   Well, the question, we say, your Honour, is that 16A, in effect, covers these aspects and the judiciary sections do not come into play because this Court has on a number of occasions certainly adumbrated that the standard of proof in Commonwealth matters is, on this aspect that we complain of, beyond reasonable doubt. 

In both Olbrich and Weininger three members of the High Court were in both.  Former Chief Justice Gleeson, Justice Hayne and Justice Callinan were in both Olbrich and Weininger and it seems to be, certainly from our point of view, that the standard of proof in Commonwealth matters is proof beyond reasonable doubt insofar as it specifically applies to pleas and what needs to be proved.

BELL J:   Olbrich and Weininger were both appeals that involved sentencing in relation to federal offences, as I recollect it, in New South Wales.

MR TERRACINI:   That is so, your Honour.

BELL J:   There is no equivalent to 132C of the Evidence Act (Qld) in New South Wales.

MR TERRACINI:   Your Honour is quite right again.

BELL J:   So that the issue raised by this application simply was not in contemplation in Olbrich or Weininger and the principles that were stated in each of those cases concerning the sentencing of offenders reflected ideas, common law concepts one might think, and there was no consideration of the picking up of a State law modifying the common law of Australia in relation to a matter of that kind.

MR TERRACINI:   I do not go and say that for a moment but the point that we seek to have determined by this Court is that this particular section of the Queensland Act has never been determined by this Court in respect of the issues that we have raised as to the applicability of the case law on this specific piece of legislation. 

It is an important matter, we say.  The respondent certainly has said that there are differences between States and the different State sentencing laws in her submissions.  However, our submission is simply that variations in the number of challenges and variations in certain aspects of sentence law are not as fundamental and do not go to the foundation of how one approaches pleas of guilty, that is to say, specifically the standard of proof.

KIEFEL CJ:   But to any discussion about the points that you seek to raise must address the question of whether or not a State court exercising federal jurisdiction must necessarily apply the State Evidence Act where the Commonwealth legislation leaves a gap and that would necessarily require a discussion of how the Judiciary Act operates on the State legislation.  Now, this is not a matter that has been addressed by the Court of Appeal because it was not put before the Court in this way, it just was not addressed.

MR TERRACINI:   The Court of Criminal Appeal certainly dealt with the applicability of the Crimes Act (Cth) and the State legislation in its judgment.  By inference it had to because it was a Commonwealth offence and 16A of the Crimes Act (Cth) applied.  True it is, and to take up Justice Bell’s point, true it is that the New South Wales decisions do not contemplate this aspect but the principle we say remains the same, that in Commonwealth proceedings the standard of proof in sentencing matters is as adumbrated in those cases, proof beyond reasonable doubt insofar as what the Crown seeks to prove.

BELL J:   You seek to get that from section 16A of the Crimes Act which requires the Court to impose a sentence that is of a severity appropriate in all the circumstances.

MR TERRACINI:   That is so, your Honour, and also matters that phrase “known to the Court”.  We would say that if any State court spoke specifically in relation to this aspect, the Queensland Supreme Court, if they apply federal law, they must take into consideration what has fallen from this Court with respect to the standard of proof.  That is our argument – I am sorry ‑ ‑ ‑

BELL J:   I was going to say Mr Terracini that usually this Court is assisted by the consideration of the intermediate court about the constitutional and Judiciary Act issues that you might seek to raise.

MR TERRACINI:   Yes, undoubtedly that is so, your Honour, but the position is as we have it.  I am not suggesting that it is a perfect situation but it is what it is and we would say it is an extremely important issue in relation to the laws of sentencing across the Commonwealth.  They are my submissions, in any event, your Honours.

KIEFEL CJ:   We need not trouble you Ms Abraham. 

Any appeal in this matter would not enjoy any real prospect of success.  Special leave is refused. 

The Court will adjourn briefly to reconstitute.

AT 9.40 AM THE MATTER WAS CONCLUDED