Hart v Commonwealth Director of Public Prosecutions; Hart v Commonwealth of Australia

[2012] HCATrans 140

[2012] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B64 of 2011

B e t w e e n -

STEVEN IRVINE HART

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Brisbane   No B65 of 2011

B e t w e e n -

STEVEN IRVINE HART

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 8 JUNE 2012, AT 10.26 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MS G.C. DEMPSEY, MR A.J. GREINKE and MR R. BRANDON, for the applicants in each of the applications.  (instructed by James Conomos Lawyers and Chamberlains Law Firm)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with MR G.J.D. DEL VILLAR for the respondent in B64 of 2011.  (instructed by the Commonwealth Director of Public Prosecutions)

MR R.G. ORR, QC:   If the Court pleases, I appear with MR G.J.D. DEL VILLAR for the respondent in B65 of 2011.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Mr Walker, it would probably assist if you addressed us on both matters.

MR WALKER:   Yes.  I apologise for being the cause of the Court’s list being disrupted.  Your Honours, I had had in mind, in combining both cases, to start with the constitutional question and without in any way intending to truncate what each of my learned friends, were they called upon to do so, might have by way of time to answer me, nonetheless, to seek to address it as just the one case. 

Your Honours, in the bundle of authorities you have, behind tab 4 and starting at page 82 of that reprint is to be found the relevant Part 2‑4 of the Proceeds of Crime Act 2002 (Cth) and the critical provisions to make good, if one could make it good, that there is a point left open by current authorities this Court should hear by way of appeal starts with the nature of the exercise contemplated by section 116. One sees there that there is a satisfaction by a court of, under subparagraph (1)(b)(ii), the fact that a person has committed a serious offence. “A serious offence” being defined in a cascade of methods, starting at section 338, to which I need not take you, includes the offences in question in this case and have as one of the indicia of being a serious offence applicable in this case the fact that the offences are indictable. In section 120, notwithstanding the nature of the satisfaction required by subparagraph 116(1)(b)(ii), it is made clear that:

The fact that a person has been acquitted of an offence –

which could be the subject of a finding under section 116 –

does not affect the court’s power –

a form of words that contemplates that there is power to do so, notwithstanding acquittal.

FRENCH CJ:   What is the offence then in respect of which a pecuniary penalty would be ordered given there has been an acquittal?

MR WALKER:   It would be the offence that the court is satisfied that the person has committed under section 116(1)(b)(ii), a court which, in the very manner upon which the Commonwealth relies in answering our submissions in writing, evades there being a jury to pronounce the verdict of not guilty.  Under section 121 your Honours will see that there is an integral, inherent and explicit relation between the pecuniary penalty order, the so‑called penalty amount, and the offence or offences in question.  For serious offences subsection (3) uses the language of “the offence to which the order relates” and says that the amount is to be determined by:

(a)assessing –

in accordance with detailed provisions that I will not dwell on now –

the value of the benefits the person derived from the commission of that offence –

and by an extension, which for Commonwealth offences takes the matter beyond indictable offences, in subparagraph 121(3)(a)(ii) combines with that possibility necessary for the assessment of value –

the commission of any other offence that constitutes unlawful activity –

In section 122 one sees the language in subsection (1), particularly paragraphs (a) and (b), again of the link in assessing the value of benefits that a person has derived from the commission of offence, one sees the expression twice appearing “because of the illegal activity”. Illegal activity being in that section that which encompasses the relevant offences. Now, your Honours, it is clear and we have to accept that on the authority of this Court the manner by which the Commonwealth Parliament provides for the prosecution of an offence against a law of the Commonwealth and, in particular, whether it is to be on indictment or not is decisive on the possible application of section 80 and the power of the Parliament rather than of this Court.

FRENCH CJ:   The anterior point is whether what we are dealing with here is capable of characterisation as prosecution for an offence or a trial.

MR WALKER:  It is, yes. The guarantee, if I may use a hollow description, in section 80 is in terms of trial upon indictment and bearing in mind the civil nature of the penalty proceedings, in one sense, an obvious sense, we submit, superficial, this is not a trial on indictment. In a way we seek to turn that to our advantage for the purpose of the substance rather than form argument that we proffer for the Court’s consideration. So of course this is not, that is the whole point of these provisions. A penalty is to be visited upon a person because of the commission of an offence. The commission of the offence is a fact which has to be determined by the judicial authority of the Commonwealth.

FRENCH CJ:   You say this is the trial of an offence, is that right?

MR WALKER:  Yes. We say that, properly understood, the expression “trial” in section 80, first, would never have been contemplated as including such a thing as the present proceedings at the time the Constitution was made, but, second, far from demonstrating that therefore section 80 does not bite upon such provisions, it may be observed that the reason it would never have been within the contemplation of those who decided to use those words is that the notion of a court deciding in a contest with the person and the State – I stress, in a contest only between the State and the person – that a person has committed an offence to be done by other than a trial would be regarded as a contradiction in terms.

The ascertainment by the assembly and testing of evidence by judicial authority of whether a person has committed an offence not as a collateral or incidental matter between civil parties, but in the contest under a public statute between the State and the person against whom the commission is alleged is, in our submission, in every sense a trial of that question.  The question is being tried in the same way that the law naturally uses that expression to describe issues framed between civil parties.....civil proceedings, or the ordinary use of the matter of the expression, in our submission, encompasses exactly what has been done in the issue here.

On indictment, in section 80, plainly presents a difficulty for us in the sense, with respect, thoroughly discussed by Justice Muir in the Court of Appeal. However, in our submission, here this case presents a novel aspect of that difficulty and one which warrants a grant of special leave. That is because in every other ruling of this Court concerning the means by which it could be seen that a statute does not lead to the attachment of section 80, it is by ensuring that the proceeding in question is not on indictment. Here the Commonwealth Parliament has spoken, as it were, with two discordant voices; one with the other.

If this offence is to be tried in the sense that the Commonwealth concedes would be true of a criminal trial, it must be upon indictment, section 80 applies and therefore must be a jury. However, if the issue is to be tried in the sense that I have employed the expression of whether a person has committed this indictable offence, according to the Commonwealth, because these provisions provide for it to be a civil proceeding, and apparently because imprisonment is not in question or a sentence as such, it is not within section 80.

That, in our submission, is a novelty and is appropriate for this Court to take on special leave upon a grant of special leave because it represents a further pushing at boundaries which, in our submission, must exist unless the Court were finally to say section 80 is nothing other than a constitutional redundancy because it depends utterly upon what a statute says. It only bites if the statute bites. If the statute is bitten, the Constitution need not bite. In our submission, however pessimistic some jurisprudence may have been about section 80 in this Court, authorities do not warrant reaching such an extreme position about what on its face appears to be seriously intended guarantee.

In our submission, the device that Part 2‑4 constitutes can be seen as precisely the kind of expedient which, unimaginable when the Constitution was made, is nonetheless in that broad category against which section 80 was intended to guard, that is, the devices and ingenuity by which legislation may be derived to bring about a finding formally by a court of the commission of an offence, visiting upon the person against whom that issue, that contention, was alleged, against whom it has been proved then to require that a penalty be levied commensurate with the nature of the offence. It is for those reasons, in our submission, that the very fact that this Court’s stream of authority has, as it were, boxed in section 80 as much as can be seen represents a reason why special leave should be granted to see just how far that endeavour has gone.

Your Honours, may I then very briefly move to touch upon the grounds in the other case which concern, we have to accept, the particular course of this particular proceeding.  I wish simply to add the following comments by way of emphasis only by reference to the written submissions that commence at page 210 of the application book.  In paragraph 27 may we, in relation to what we have called the Briginshaw question, which of course is directed to a finding of fact but we say to an important aspect of the method of finding fact, may we draw emphasis to the approach by the learned trial judge concerning Mrs Anderson’s evidence.  You will find that starting ‑ ‑ ‑

FRENCH CJ:   That was a refusal to draw certain inferences from her evidence, was it not?

MR WALKER:   That is a fair summary, but may I take you in just a bit more detail.  It starts at the foot of page 77 and his Honour there posed for himself an issue which, as you have seen in writing, we complain about as perhaps reversing an onus.  Passing over that, may I, on page 78 take you to about line 15:

There was some evidence to support the expectation at material times by Mr Hart that some participants would pay principal.

I stress, that is an expectation that his Honour there attributes to Mr Hart.  That is because of what then happens at the beginning of [285].  That links with an argument I am about to put.  Going back to the way the judge deals with it then at about line 18, a branch office manager, Ms Anderson, advised the ATO.....notice, her advice was tendered.  She recalled dealing, et cetera, she recalled being trained, and then there is a reference to the nature of that expectation.  It has, however, already been accurately described as some evidence to support the expectation that participants would pay principal. 

Then in [285], starting at line 40, there are in our submissions an approach which was, with respect, fairly summarised by the point raised with me by the Chief Justice that the detail of which, in our submission, shows why the absence of a jury may be significant.  One can scarcely imagine that where there is evidence not cross‑examined but where somebody says she recalls something, one can scarcely imagine a prosecutor before a jury making much headway in fact finding by the jury for the proposition:

I do not draw an inference from the letter that her recollection was accurate –

Now, in our submission, of course that is logically correct.  When somebody says they recall something, it is a statement of what they recall and cannot be a self‑proving assertion that the recall is accurate, but uncross‑examined, intended as a statement contained in a formal answer to an official demand for information, in our submission, the point begins to be elevated above merely a particular complaint about how a particular finding of fact was made, in a particular case.

In relation to the second matter, tax deductibility, which starts at paragraph 29 on pages 214 and 215 of the written submissions, we wish to flag as perhaps worthy of special leave really the points sought to be made in 34 and 35, particularly 34.  At paragraph [140] in Justice Muir’s reasons, which you will find on page 184 of the application book, there is a conclusion by his Honour just before line 40 concerning whether:

in characterising the outgoing, the true facts can be disregarded.

It is clear from what follows that the true facts are facts which go outside, indeed, avowedly go outside those things believed to be true, mistakenly it may be, by the taxpayers or the employers.  Our simple point that we seek to put is that, of course, as to deductibility there cannot be a principle that says a mistaken belief that what I am buying will be either good value or efficacious in my intended derivation of income, that cannot possibly be a premise for it being a deductible expense.

FRENCH CJ:   What they were buying – just so I understand the factual background correctly – were promissory notes from a company which was indirectly controlled by the applicant?

MR WALKER:   Yes.

FRENCH CJ:   And they paid under loan agreements, interest and fees?

MR WALKER:   Yes.  There were findings that your Honours have seen in the judgment and in the submissions that there was a genuine belief.....of course with the Part IVA approach, but there was a belief in the need to pay the interest and the need to pay the principal and the expectation of receiving benefit.  In our submission, the notion that true facts that falsified either the prospect as a matter of commerciality or perhaps even the legal structure, if they are not known to the person making the expenditure, it does not prevent them from being deductible any more than an expense, a head of expenditure, I incur excessively because of either bad value or cheating by the recipient of the payment ceases to be deductible.

Can I then turn to the third of those issues called the search warrant documents.  This is a highly particular circumstance and I need to add by way of an emphasis, perhaps the writing could have brought out more, that of course this is a matter where the fact that Mr Hart was at relevant times representing himself must be yet another peculiar circumstance in the form of.....point.  We accept that Justice Muir carefully considered that aspect of the matter.  However, the notion again that this is the kind of procedure that could have simply unfolded before a jury – or it needs only be raised to be rejected – 40,000 documents, what is the jury going to do with it and, for that matter, the documents, be they 496 or 1,305, a folder of so‑called significant documents had been included in final address is also something which, in our submission, gives real content to a complaint that the finding of the commission of this offence ought to have been the task for a jury.  Finally, because we wish to add nothing in relation to prosecutorial duties, may I turn to the notion of submissions as adverse evidence?

FRENCH CJ:   There was an express disclaimer about this by the trial judge, was there not?

MR WALKER:   There was and I would not ‑ ‑ ‑

FRENCH CJ:   But you say nevertheless he used them in some way which is impermissible?

MR WALKER:   Yes, and could we put very shortly, your Honour has, with respect, encapsulated it.  Certainly, at paragraph [168] of Justice Muir’s reasons, what the Chief Justice has just raised with me is the way in which his Honour deals with it.  If I can take you to paragraph [279] and following in the learned trial judge’s reasons, starting at page 76 of the application book.  Your Honours will note that there is an analysis being undertaken for a number of purposes, I accept, some of them unexceptionable, of the course of submissions that nothing can be said against the propriety, with respect, of somebody acting as their own counsel of the trial judge analysing for internal contradiction the submissions put, but something, in our submission, should have been said and should now be considered by this Court about contradiction, logical weakness, not sufficing is the object of that analysis and the truthfulness of propositions concerning the state of mind at various historical junctures by the accused acting for himself, being drawn from submissions he is putting as his own advocate.  That, in our submission, is quite a different kettle of fish. 

At [283] there is, of course, the statement which, in our submission, has to be given full weight or, if I may put it this way without intending to pose a conundrum, at least as much weight as the later disclaimer.  There is no hint of suggestion in the so‑called disclaimer that one finds at page 78, line 40 ‑ ‑ ‑

FRENCH CJ:   But in the end this was a matter for assessment by the court, was it not, the appeal court?

MR WALKER:   Yes.  In our submission, however, it was a matter of such importance that again gives content to the different course that perhaps would have followed had there been a judge and jury and the judge had been required to instruct a jury as to how they may and, most particularly, how they may not use statements made by Mr Hart.....May it please the Court.

FRENCH CJ:   Thank you.  I do not think we need trouble you, Ms Abraham, but Mr Orr, in relation to B65.

MR ORR:   Thank you, your Honour.  The Commonwealth’s position is the Commonwealth legislation can generally determine the consequences that will attach to particular unlawful conduct.  Those consequences can be liability as a crime triable on indictment, liability as a crime triable summarily, civil liability, forfeiture of property, perhaps civil liability to another person who has been injured or loss of rights to a licence and in this case the three relevant liabilities which have been provided for with regard to defrauding the Commonwealth are, one, a crime triable on indictment and we agree that this was a crime triable on indictment.  That crime could also have been tried summarily in certain circumstances and in the relevant proceedings these were civil proceedings under the Proceeds of Crime Act, in particular, Part 2‑4.

In our submission, section 80 of the Constitution only requires a jury for the first of those proceedings, that is, where it is a proceeding for a crime triable on indictment. A jury is not required where that crime is proceeded summarily or where that issue of that conduct is relevant to civil proceedings, which is the case here. This, in our view, is confirmed by the very text of section 80. It refers to a trial on indictment. It is confirmed by the history of that provision which shows that in the drafting of the Constitution the words “indictable offences” were rejected and the words “trial on indictment” were included. It is also confirmed by a long line of authority in this Court that section 80 only arises where there is actually a trial on indictment.

I will only take your Honours to one case, in this regard, but it is an important case, and that is R v Archdall 41 CLR 128. It is in the agreed bundle under tab 11. Those proceedings concern an offence under section 30K of the Crimes Act which involved the boycott of property, which in this case was a lighthouse ship was just berthed in Brisbane.  Section 30K of the Crimes Act provided this was an offence with a penalty of imprisonment for one year.  Chief Justice Knox, Justice Isaacs, Gavan Duffy and Powers all considered the issue at page 135 of the report. 

There was an issue about whether provisions of the Acts Interpretation Act applied or provisions of the Crimes Act applied, but we can put that to one side.  Beginning on page 135 at about point 6 your Honours will see the Court said:

But the Crimes Act by secs 12 and 12A adopts a different scheme –

different to the Acts Interpretation Act –

which involves a contrary intention –

thereby putting those provisions to one side –

offences against that Act are divided into two categories, those declared indictable (sec 12A) and those not indictable, that is, not declared by sections other than sec 12 to be indictable.  The first‑mentioned class –

which this offence did not fall into –

need not be further referred to.  The second are by sec 12 itself declared to be both indictable and punishable summarily.

So just pausing there, this was one offence but it was an offence which could be proceeded by way of indictment or summarily.  The one course of conduct –

A Court of summary jurisdiction, however, cannot impose a sentence of imprisonment longer than one year –

That is the limitation on that summary process –

But it is on the face of the matter that sub‑sec 3 of sec 12 is wholly inconsistent with sec 4 of the Acts Interpretation Act.  There is consequently an obvious contrary intention with reference to sec 4 –

Then the conclusion which their Honours reached –

The suggestion that the Parliament, by reason of sec 80 of the Constitution, could not validly make the offence punishable summarily –

that is, in addition to it being punished on indictment –

has no foundation and its rejection needs no exposition.

So in that case their Honours are saying the same conduct can be subject to a trial on indictment and a trial summarily.

FRENCH CJ:   Does this allow you to, as it were, confess and avoid the characterisation problem of the proceedings?

MR ORR:   Yes, your Honour.  In our submission, this is not a trial on indictment.

FRENCH CJ:   You would say they are civil proceedings?

MR ORR:   That is right, they are civil proceedings.

FRENCH CJ:   But let us assume they were to be characterised as criminal?

MR ORR:  Even if they were criminal, then they could be tried summarily. Section 80 does not prevent that. Section 80 only takes force when there is not a trial – which there clearly was not here. So the broadness of the conclusion by their Honours there is on the basis of a particular course of conduct which was prohibited and which the legislation allowed to be tried both on indictment and summarily. In our view, the logic is that those sorts of offences could also be tried as forming the basis of civil proceedings for proceeds of crime. In relation to Justice Higgins who also reached a strong conclusion on this, he also states at the bottom of page 139:

there is nothing to compel procedure by indictment.

So section 80 does not compel procedure by indictment. It does not require that even criminal offences be proceeded by indictment. All it requires is once there is an indictment, a procedure by indictment, that a jury is required. This authority of Archdall has been upheld by the Court consistently since 1928 and, most recently, in Cheng (2000) 203 CLR 248. I will not take your Honours to that, but certainly the judges in that case also made the point that it cannot be just because for some purposes an offence is categorised as indictable. If that means section 80 applies whenever there are proceedings in relation to that offence, if that were the case, accused could not agree to having proceedings brought against them summarily because that itself would be prohibited by section 80 and that is not the traditional view taken of section 80, in our submission.

The third point I would make, your Honour, is, and I think this is agreed, this was clearly not a trial on indictment.  There are some key indications here.  The legislation itself provided these were not criminal proceedings, they were civil, in section 315(1), they commenced by an application rather than indictment, they were subject to proof on the balance of probabilities, not the criminal standard, in section 317.  The civil rules of evidence apply in section 315 and while they might result in an order that a person pay money, section 140, they can never expose the person to the stigma of a criminal conviction, nor can they impose a penalty or expose a person to any form of imprisonment.  Their purpose is primarily restorative and require a person to disgorge the benefits of unlawful activity. 

The only basis which has been suggested that these are proceedings on indictment is that the definition of “serious offence” includes some indictable offences, and your Honours were taken to that provision. It is not clear that this concept of serious offences is relevant in this case, but just even assuming that it is, the use of the concept of indictable offences there is simply to provide for a class of conduct upon which the proceeds of crime proceedings can be brought. They are not to provide in any way for this to be a procedure on indictment. Even on the dissenting views of the High Court as to the operation of section 80 of the Constitution, these proceedings would not be a trial of indictment and would not be subject to section 80.

One of the major dissenting views is usefully set out in the application book at page 157 in the judgment of Justice Muir who quotes from Justices Dixon and Evatt in R v Federal Court of Bankruptcy; Ex parte Lowenstein.  I will just read the second half of the quote which begins at line 21.  Their Honours are considering what is a trial on indictment.  May I begin by saying that one substantial element is that:

some authority constituted under the law to represent the public interest for the purpose took the responsibility of the step which put the accused on his trial; the grand jury . . . A second element, we think, would be found in the liability of the offender to a term of imprisonment or to some graver form of punishment.

So their requirement for a trial on indictment is that the defendant be put at jeopardy of imprisonment –

We should not have taken the view that sec 80 was intended to impose no real restriction upon the legislative power to provide what kind of tribunal shall decide the guilt or innocence on a criminal charge.

That was the minority view, that is, this is a view which has not been upheld by a majority of the court that trial and indictment means any proceeding for a criminal offence where the defendant is put at risk of imprisonment.  That is not the case here, your Honours.  There is no risk that Mr Hart will be imprisoned.  He will simply be made to disgorge the unlawfully obtained access.  This minority view has had some other supporters in the Court, your Honour, in Kingswell (1985) 159 CLR 264. Justice Deane, again in the minority, however ‑ ‑ ‑

FRENCH CJ:   That is the passage at paragraph 39 at page 158.

MR ORR:   Yes.  His Honour adjusted the test slightly in saying that he thought in order for there to be a trial indictment, there would need to be imprisonment for one year or more, and Justice Kirby also in Re Colina also adopted Justice Deane’s test, that is, it needs to be a criminal prosecution where the defendant is put at jeopardy for imprisonment of one year or more. So even on those minority broader views of section 80 of the Constitution, in these proceedings section 80 did not require a jury because the accused, or defendant in these civil proceedings, was not put at jeopardy of imprisonment of any period, let alone imprisonment for a period of one year.

It is said that section 80 must be given a broad view to be considered in these proceedings, even broader than, as I have said, in the strong dissents of Justices Dixon and Evatt and Deane and Kirby, which I have taken your Honours to, because otherwise it does not have any force or effect. In our view, that is not correct. It prescribes trial by jury where there are proceedings on indictment and there are very significant requirements for those proceedings. As the Court held in Brown, the accused cannot agree to proceedings other than before a jury and the Court has given various judgments with regard to the nature of that process. 

This requirement in section 80 applies to State courts exercising federal jurisdiction, so it is a significant limitation in the operation of those courts, and trials which are not on indictment are still required to proceed within the broader context of Chapter III of the Constitution, that is, trials both in federal courts and in State courts exercising federal jurisdiction. So section 80 sits within Chapter III unless a specific requirement which has a significant impact, notwithstanding, as the Court has traditionally held, it is for the legislature to determine when there is a trial on indictment and when the proceedings can proceed summarily or, in this case, when conduct which has been prescribed by criminal offence and be preceded by way of civil proceedings for a penalty.

The operation of section 80 is to make – one operation is to make it clear that there are some proceedings that the Constitution requires to be decided by a jury and section 80 also prevents States and, indeed, the Commonwealth from abolishing jury trials. It makes it clear that there are circumstances in which jury trials are not only possible but are required. The submissions of the applicant also deal with more general constitutional power and Chapter III issues which were not the subject of address, so I will not deal with those, your Honour. Thank you.

FRENCH CJ:   Thank you, Mr Orr.  Yes, Mr Walker.

MR WALKER:   Please the Court. Your Honours, may I start with the proposition advanced by my friend that our argument is tainted, as it were, by evocation of statements made in dissenting from the authoritative force of decision about section 80 and the power of the Parliament to define that which will be tried on indictment and that which will not. We certainly say this, that to call in aid dissents expressed in cases which were not concerned with the point we wish to raise could not of itself be any badge of fallacy, but we go further. Yes, of course, those dissenting statements, prominent ones of which my learned friend referred to, include reasoning upon which an argument, were we granted special leave, for us might draw some comfort, but our point is not one which seeks to fight old battles.

There has not been a contest, the result of which has held that for an offence which is to be, that is, is stipulated as one which when tried is to be on indictment, there may nonetheless be between the Commonwealth by one of its officers and a person be joined the issues for trials civilly of whether that person has committed that kind of offence, that is, an offence that must be tried on indictment if it is to be tried criminally.  That, in our submission, is a holding which outstrips anything which the present course of authority in this Court would permit. 

In particular, if one goes back to the reasoning or decision, perhaps one should call it, in Archdall that my learned friend referred to at 41 CLR 136, one sees that the whole of the plurality reasons is supplied by the proposition, untangling the negatives, that Parliament may validly make the offence punishable summarily. Quite so, that is the course of authority. We have nothing to do with that matter because this is an offence that Parliament has not only not made punishable summarily, it has required to be tried on indictment.

There was a suggestion – I apologise if I box at shadows here – that the offences in question for Mr Hart were ones that might have been tried summarily. Not so. The “serious offence” definition in section 338 of the Proceeds of Crime Act for these property offences requires that the

amounting question exceed $10,000, comfortably, one might have thought, exceeded in proceedings which result in a pecuniary penalty order of over $19 million.  On the other hand, the Crimes Act section 4JA providing for elections for summary trial have a ceiling financially for such cases of $3,000. So this case does present what, in our submission, is a proper test of limits, or perhaps usefulness, of section 80 because this is an offence which, if tried criminally, had to be tried on indictment thus before a jury. It is for those reasons, in our submission, that there is not, to adapt the phrase the Chief Justice put to my friend, there is not here a confess and avoid of the issue by reference to the particular nature of these events.

Finally, my learned friend says, as if it is a distinction of comfort to a person in my client’s position, that he faces or faced no stigma such as comes from a conviction.  The stigma, if the figurative language adds anything to the fact, of a conviction comes because of the pronouncement by official process of guilt of an offence.  That is the functional nature of that which would bring in its train either shame in the convict, or the accused, or a perception of shameful conduct by everybody else and, in our submission, it is impossible to understand functionally how there is any distinction when a judge under Commonwealth legislation has found that a person has committed that offence compared with what happens when a jury has returned a verdict of guilty and a judge has entered the conviction.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.

In relation to the first application, B64 of 2011, in our opinion the decision of the Court of Appeal is unattended with sufficient doubt to warrant the grant of special leave. 

In relation to B65 of 2011, the application for special leave is against the decision of the Court of Appeal that proceedings for a pecuniary penalty under Part 2‑4 of the Proceeds of Crime Act 2004 (Cth) did not require a trial by jury in order to comply with section 80 of the Constitution. That decision, in our opinion, accorded with settled principle relating to the civil character of pecuniary penalty proceedings and, in any event, with the construction of section 80. Other submissions that the incidental power does not support the law and that powers conferred upon courts by Part 2‑4 are inconsistent with Chapter III of the Constitution do not have sufficient merit to warrant the grant of special leave.

In each case special leave will be refused with costs.

The Court will now adjourn until 2.15 pm on Monday, 18 June in Canberra.

AT 11.12 AM THE MATTERS WERE CONCLUDED