Hudi, Vladimir v Chung, Graham George

[1981] FCA 87

L --

I N THE FEDERAL COURT OF AUSTRALIA ) )

NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG. 31 of 1980

)

GENERAL DIVISION	)
BETWEEN:

VLADIMIR HUDI Appellant

and

GRAHAM GEORGE CHUNG Respondent

FOX J REASONS FOR JUDGMENT 4 FEBRUARY 1981

(EX TEMPORE)

FOX J: The judgment and reasons for judgment I a m about t o

del iver are those of the court.

The appellant, Vladimir Hudi, appealed against an order

of the Chief Jus t i ce of the Supreme Court of the

Northern Territory pronounced on 27 October last a t

Alice Springs, when an appeal by him from an order of

the Special Magistrate w a s dismissed.

The appellant was or ig ina l ly charged with two offences,

t h e f i r s t b e i n g t h a t on 11 September 1980 a t Docker

River he sold liquor without being authorised so t o

do contrary to the provlsions of 115 of the Liquor

Act. He was further charged with taklng liquor

on to the r e se rve a t Docker River without prior

approval of the person in charge of the reserve,

contrary to the provisions of section 140E(1) of the

Licensing Ordinance. The appellant by his counsel

pleaded gui l ty to both offences. He w a s sentenced

to th ree months’ imprisonment on the first charge.

On the second charge he	was	fined $1000,	i n defaul t
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of payment 40 days' imprisonment.

A t the outset of the appeal to the Supreme Court

i t was common ground that the Special Magistrate

had exceeded h i s j u r i s d i c t i o n i n imposing a f m e

of $1000 on the second charge. The sec t ion in

question provided a maximum penalty of $200. A

summons had been taken out seeking an order of

c e r t i o r a r i , and with the consent of the parties his

Honour quashed the penalty. In the circumstances

t h i s seemed an appropriate course to adopt.

Nevertheless , the appel lant in his not ice of appeal

to this court submits that because of c lose ident i ty

between the two charges, the Special Magistrate erred

i n proceeding t o a conviction and entering penalty

upon the second charge pending the disposal of the

appeal on t h e f i r s t , and he now seeks the directions

of this court concerning the disposal of the second

charge.

We w i l l deal f i rs t ly with the appeal against the

sentence of three months' imprisonment. Section 115

of the Lxquor Act provides that a person shall not

s e l l any l iquor unless the sale i s authorised by

l icence. Section 124 provides a general penalty for

breach of the sect lon, whlch in the case of a f i r s t

offence i s a f ine of $1000 or imprisonment f o r s i x

months. For a second or subsequent offence the penalty

is $2000 o r imprisonment for 12 months.

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The facts put to the court of summary

jurisdiction were in small compass, although not

all matters were agreed. What is clear and

undisputed is that on 11 September 1980 the

defendant entered the Docker River Settlement,

having travelled there by car from Alice Springs.

He had with him a significant quantity of Orlando

Yellow Label Sweet Sherry, some of which was sold

to aboriginal persons. Notice of his activities

was given to the police, who travelled from Ayers

Rock, which we are told is a considerable distance

away. Upon searching the appellant's car, they

found 2 1 full flagons of wine, 18 of them m cartons.

An amount of cash running into hundreds of dollars

was found in a white handbag in the vehicle, much

of it in bundles of $20. The defendant initially

denied selling flagons, but eventually admitted

selling two flagons to aboriginals for $20 per flagon.

It is common ground that this was	a very much inflated
price.

The appellant's counsel put a version of events

to the magistrate whlch is improbable, but which

to some extent at least had to be accepted in the

absence of contrary evidence from the prosecution.

It was submitted that the appellant, having been

warned on arrival that "there was no way in which he was entitled to sell liquor on the settlement"

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accepted the si tuation and tha t he eventually sold

the flagons to aboriginal people under some type

of pressure, observing when they approached hlm tha t

they were i n an agi ta ted s ta te . It was submitted

h i s primary purposes i n v i s i t m g the settlement were

to see fr iends there and to se l l h i s ca r , r a the r t han

the wine. The l iquor, counsel said, was t o be sold

t o f inance petrol and tyre expenses.

The police prosecutor had informed the magistrate

tha t a number of aboriginal groups were seen t o be

intoxicated while the appellant was at the set t lement ,

suggesting large sales of the wine. The appel lant ' s

counsel on the other hand submitted this inference d i d

not comply with his "instructions that only two flagons

were sold". This view of the facts has t o be accepted

and was accepted. The amount of l iquor in the vehicle

was not in dispute. It was admitted that the appellant

or iginal ly intended to sel l i t , but i t was sa id tha t

he decided against this course when he was t o l d i t

could not be lawfully sold on the reserve. The

appellant could not, of course, lawful ly sel l i t

anywhere, a s he did not have a l icence.

The appellant had no prior convictions. No

character evidence was cal led on his behalf .

The speclal magis t ra te , in sentencing the appel lant ,

emphasized the problems the aborigmal community

faces in this Terr i tory associated with l iquor .

It is t r i t e t o say that no persons other than

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magistrates working in the a rea would be be t te r

equipped to assess the seriousness or prevalence

of this type of offence. The l iquor in quest ion

was sweet sherry in f lagons and two flagons of i t

were sold to aborigines , and i f it adds anything,

were sold on a reserve. The learned special

magistrate referred to the provisxons of the Act

which enable aborigines themselves to have ce r t a in

a reas res t r lc ted . He s t a t e d i n t e r a l i a :

"No person in the Northern Terri tory of

Australia could not be aware of the

serious problems that are associated

with supplying drink in either the

Aboriginal community or the white community.

Drink is a ser lous problem throughout the

Northern Territory. Legislatlon has been

brought into operation to attempt to restrict

the supply of alcohol to Aboriginal communities.

That l eg i s l a t ion is made appl icable to the

par t icu lar community by the Aboriginees of

t ha t community applying to the Liquor

Commission to have the i r a r ea exempted

o r r e s t r i c t e d from the supply of l iquor .

Those appl ica t ions a re made i n a conscientious

e f f o r t by the Aborigines to protect their

her i tage and to protect their people from

the ravages of alcohol."

The Chief Jus t i ce in h i s ex tempore reasons for

dismissing the appeal cited a passage i n t h e remarks

of the special magis t ra te , of which the foregoing

quote i s pa r t , and he expressed entire	agreement
with them.

On the hearing before the special magistrate

and on appeal before the Chief Just ice , the appel lant

was represented by counsel. Many points concerning

proceedings before the magistrate are now taken before

us which were not raised by the appellant before the

Chief Jus t ice . No question has been raised as to the

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general principles applied by the Chief Jus t lce

in determining the appeal t o the Supreme Court.

He	said:
"Whether I would have imprisoned the
appellant Hudi for as long as three
months had I been dea l ing wi th th i s in
the f l r s t i n s t ance I am not en t i re ly
sure, but I am qu&te unable to find that
the penalty of three months imprisonment
fo r what he did, even though he was
previously of good character - I am qui te
unable to find that the penalty was
manifestly excessive or indeed excessive
t o any marked degree a t a l l . The appeal
i s therefore dismissed."
It

i s the magistrate and the Chief Jus t i ce were influenced argued that in considering the matter both

by views of aspects of t he f ac t s which were not

accepted by the appellant acting through his

counsel. The pr inciples appl icable in deal ing when

sentencing, with facts which are in dispute or not

admitted are clearly enunciated. In this case we are

not able to see that any matter of substance was taken

into the scales against the appel lant which his counsel,

who i s not counsel appearing before us, d i d not

d i r ec t ly o r by clear inference agree t o . Certainly

he made a very limited submission to the Chief Justice

tha t th i s poss ib ly happened i n t h e lower court. We

believe the arguments now put along these l ines are

unreal, although counsel has presented his case with

care and obviously af ter considerable preparat ion.

Our bel ief is reinforced by the statement of

counsel appearing before us t h a t h i s c l i e n t would,

were the matter returned to the magistrate, glve

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an account of factual mater ia l a t var iance to

those which, or: his instructions, counsel then

appearing stated below. We have been shown fo r t he

purpose of i t being tendered by way of fresh evidence

an a f f idav i t by the appellant which plainly supports

the statement thus made by counsel on this occasion.

A particular matter which counsel has relied on

is that the courts below, i n h i s submission, took the

appel lant to be a " t ra f f icker" in l iquor and not simply

a person who happened t o s e l l a small amount of liquor

on one occasion.	The f a c t is tha t he was a " t ra f f icker" ,
to the ex ten t tha t	he had or iginal ly intended to sell

a large quantity of wine and he d i d i n f a c t s e l l some of

i t . There was no suggestion that he followed t h i s

course often or more than once. Counsel before the

Chief Jus t ice sa id tha t in subs tance there was "only

one matter that was substant ia l ly contested, that was

tha t Mr. Hudi had advert ised the fact that he was

se l l i ng l i quor on the reserve." H i s c l i en t ' s i n s t ruc t ions

were t h a t i n f a c t h e had not done so. There then

ensued a short discussion on the subject with the Chief

J u s t i c e , i n which the la t ter explained the sense in

which t h i s could be t rue and a f t e r which h i s Honour

s a i d , i n e f f e c t , t h a t he did not see that it mattered

one way or the other . Counsel l a t e r s a i d t h a t , "The

only real ground of appeal in this case i s based on

the fact that the appel lant	had	never	been	in t rouble
before."

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It was argued that the magistrate applied wrong

principles of sentencing and in particular over- emphasised the deterrence aspect. In our view there is no substance in this submission. Sentencing is

a discretionary function, its so-called principles

being only poorly defined and delineated. The

protection of society may be the common consideration

but one then has to ask many questions, such as how,

against whom and at what stage of the life of the

convicted person. No judicial person can expect

to give a full exposition of all considerations

which pass through his mind or upon which he acts.

As a rule, some aspects will predominate and these

at least he will be expected to mention. The

decided cases show that the exercise of his discretion

is not lightly to be interfered with.

Application was made to admit fresh evidence on this

appeal. In part this comprised an affidavit dealing

with the prevalence of convictions for the present

offence (that is, under section 115) in the large

area of which Alice Sprmgs and the Docker River

reserve form part. This material was obtained on

counsel's advice after the conviction and earlier

appeal. Acceptance of this evldence was opposed

but in the special circumstances of the case we

believe that it should be admitted. Its tendency

is to show that the offence does not occur very

frequently in that area, in fact, there are only

three recorded convictions in 1980. We have taken

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account of the submission of counsel for the Crown

that he has not had an opportunlty to meet this

evidence and in particular would like to bring

evidence of cognate offences. However, the material

is in our opinion relevant and we make an order

dlspensing with any necessary parts of order	52,	rule 3 6 ,
which have not been complied with.

The evidence, however, does not in our opinion

affect the result. Although the magistrate when

considering principles of punishment, used the words,

, I

severe prevalence", we do not read his decision as

being based on that consideration. The matter of

prevalence was not discussed at all by the Chlef

Justice.

The other part of the fresh evidence that was

tendered consisted of two affidavits, one formal in

nature from Mr. Dean, a solicitor, and the other was

the affidavit to which I have already referred of

the appellant himself. As counsel has frankly conceded from the beginning, this affidavit substantially contradicts parts of the circumstances

as stated on behalf of the appellant in the two

courts below. Indeed, if accepted it would go to

show that the plea of guilty should not have been

made in the first instance. To admit it now would

in effect be to re-open the whole hearing. The

case would have to be remitted for fresh consideration

by a magistrate, not only in relation to sentence

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but in relation to conviction as well. There is

in this case also an absence of compliance with

order 52, rule 36. In the circumstances we are

clearly of the opinion that the further fresh

evidence to which I have referred should not be

admitted. It has been submitted by counsel in his

careful argument that the sentence was manifestly

excessive so as to give rise to the inference and

conclusion that the magistrate and the judge erred

in the material respect. We do not agree.

We concur in the observations in this regard

of the Chief Justice, which we have already quoted.

We are, therefore, of the opinion that the appeal should be dismissed and the sentence confirmed and we order accordingly.

There is the matter of the second charge to

which we have earlier referred. The sentence in

relation to that charge has been quashed which means

that the matter is remitted to the magistrate or a

magistrate for further consideration. The sentence

is not the subject of any appeal to thls court.

This court, therefore, makes no order in relation to

this charge and	no comment. Are there any further
applications.

MR GILLOOLY: No.

AT 12.30 PM THE MATTER WAS ADJOURNED

INDEFINITELY

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