Hudson v Director General, Department of Environment, Climate Change and Water; Joly Pty Ltd v Director General, Department of Environment, Climate Change and Water

[2012] HCATrans 364

[2012] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S151 of 2012

B e t w e e n -

JOHN ROSS HUDSON

Applicant

and

DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT, CLIMATE CHANGE AND WATER

Respondent

Office of the Registry
  Sydney  No S152 of 2012

B e t w e e n -

JOLY PTY LTD

Applicant

and

DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT, CLIMATE CHANGE AND WATER

Respondent

Applications for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 2.24 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.E. KING, for the applicant in each of those applications.  (instructed by Hicksons Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR E.C. MUSTON, for the respondent in each matter.  (instructed by Director‑General, Department of Environment, Climate Change and Water)

KIEFEL J:   Yes, Mr Walker.

MR WALKER:   Your Honours, as to the relation between the two applications, we accept that if special leave is not appropriate in Mr Hudson’s criminal matter it should not be considered in Joly’s civil matter.  We submit that if special leave were appropriate in Mr Hudson’s matter because it would raise the correctness of the underlying premise of the civil proceedings that leave should be consequentially granted in the civil matter.  That is all I wish to say about the civil matter.

In relation to the issues sought to be relied upon in support of the application for special leave, may I commence by saying that the only point I wish to argue is that which is perhaps conveyed on pages 87 and 88 in the draft notice of appeal by 2a, 2c, 2d, with some consequential reference to 2e.  Your Honours, in a nutshell, the question of power to have permitted the lay agent to appear is not one I wish to ventilate, but rather the consequence for the trial, not of that permission being granted but of the manner in which the hearing then proceeded.

I should say something immediately about the way in which the hearing at first instance proceeded.  There was but one hearing, that is, there was not a separate occasion of hearing after conviction.  Questions of sentence were addressed for reasons of what might be called convenience, to which I will come, in the same hearing as had entertained the case and heard the arguments about conviction.  At page 28 of the application book in Mr Hudson’s matter you will see at paragraph 70 Justice Lloyd referring to that course having been agreed, as your Honour put it, sensibly, that is:

to make submissions on the question of the appropriate penalty in the event that the offences were proved –

and there is reference to Mr Hudson and Mr Walter, the lay agent, both being based in Queensland.  The Court of Appeal referred to the same circumstance on page 77 of the application book, paragraph 81.

The nature of the hearing then was one in which there was evidence presented going both to guilt and sentence, or at least that is what the hearing was convened and held to entertain.  In the event, the lay agent conducted the hearing in such a way that among other glaring inadequacies there was no evidence, either by Mr Hudson or by any witness in his behalf, either in answer to the allegation that offences had been committed or in mitigation of penalty against the event they were proved.

At page 11 of the application book, paragraph 3, Justice Lloyd records, that is, at first instance, what he had drawn to Mr Hudson’s attention – I will come back to that matter.  Then in paragraph 4 – I will not read it but you see items (a) to (f) that go to the top of page 12 of the application book – contain matters which can only be described as thoroughly misconceived to the point of being mischievous arguments which could not possibly have assisted Mr Hudson either resisting conviction or, very importantly, in mitigation of penalty if he were convicted.

GAGELER J:   Mr Walker, are you going to come to the error in the judgment of the Court of Appeal?

MR WALKER:   Yes, I am.  There is one error we seek to raise, and that is the discrepant dealing, the contrasting dealing, with the issue of sentence which has been remitted under section 12 of the Criminal Appeal Act, and the question of conviction where, by reasoning that implicitly resembles – this is not a criticism – a proviso approach, having thoroughly considered in ways we do not canvass ‑ ‑ ‑

KIEFEL J:   This is the finding that there was no miscarriage?

MR WALKER:   No permit – well, in effect, yes, your Honour, that is why I say it is implicit ‑ ‑ ‑

KIEFEL J:   No case that ‑ ‑ ‑

MR WALKER:   It is implicitly a proviso kind of reasoning, and I stress none the worse for that under the provision which is section 5AA, imported through section 5AB, of the Criminal Appeal Act, and plainly enough requiring error and what I will call the fact that the error matters, which perhaps is summarised conveniently as a miscarriage point, yes. 

Now, why do we say it is a miscarriage, why do we say that is an error?  It turns on the circumstance that I have commenced with.  This was one hearing in which there was evidence that would go to and against conviction, that is, if the defendant through his agent gave any evidence or led any evidence from anyone else, and it is for those reasons, in our submission, that the segregation, the separation, between sentence and conviction, which is the premise of the different approach taken to the outcome of the one hearing which is the error in answer to Justice Gageler’s question.

Could I set that in context as follows?  At page 29 at first instance in a passage commencing at the foot of that page in paragraph 75 one sees a reference to matters which, if your Honours will forgive me, are very familiar, of course, but they deserve emphasis.  There is one point we seek to ventilate.  There what is referred to is the deliberateness, this being a strict liability offence, that would really matter when it came to sentence.  It would obviously be something which in the one hearing dealing with all issues would be affected by evidence, be that evidence purportedly against conviction or purportedly in mitigation, or perhaps given the agent’s incompetence, whether no thought had been given to that at all.

On the top of page 30 one sees in paragraph 75, about line 10, how the absence of any evidence, and more to the point what can only be described as the recalcitrant approach recorded in paragraph 11, to which I have already taken you, one can see that on sentence that weighed heavily, or weighed significantly against my client and I stress we succeeded in the Court of Criminal Appeal, of course, on sentence – there will be a rehearing on that, and why, because there has been an unfairness producing a miscarriage.

Question ‑ why does that not apply to conviction, bearing in mind that there was one hearing where all of the evidence would be heard and used for whatever purpose it was relevant?  Now, when one then comes to paragraph 78 on page 30, there is another matter relevant to sentence which plainly is affected by not only the evidence that was before the court, including the statements on Mr Hudson’s behalf by his agent as to his claim of right to have done all of this unimpeded by law, but also, of course, the evidence that was not given either in answer to the allegation that offences had been committed or in mitigation of penalty against the event of them being proved.

KIEFEL J:   Mr Walker, even if one accepts that the incompetent representation extended to both matters going to conviction and to sentence, what is the answer to the finding of the Court of Appeal that even if the appellant had been competently represented he could not have succeeded in his defences?

MR WALKER:   There is no good answer to that; that is why I strip the matter down as much as I can.  That is why I say this is one hearing, all the material is for all purposes, so far as it is relevant, of course, and there is a trenchant and, with respect, plainly correct characterisation of the hearing insofar as it produced a sentence as being one which could not stand – the sentence could not stand – the hearing was such that the sentence could not stand.

GAGELER J:   Because of the lost opportunity of putting before the court matters that could have impacted on the penalty?

MR WALKER:   Yes, of course that is right, but it is not just a matter of bringing the reference from your parish priest, it is the evidence given about the way in which you conducted yourself in the activities that turn out to expose you to an offence of strict liability.

KIEFEL J:   Are you saying that the primary judge allowed matters put in relation to sentence to influence him in relation ‑ ‑ ‑

MR WALKER:   No, no, of course not.

KIEFEL J:   I am just not quite following this.

MR WALKER:   There were no matters put.

KIEFEL J:   No.

MR WALKER:   There was no cross‑examination, there was no evidence led.  There was no argument put.  Your Honours will bear in mind, of course, the way in which the sentence proceeded – if you go to pages 77 and 78 of the application book, paragraph 84, which continues to the top of page 78 ‑ contains together with the two sentences quoted in paragraph 85 the entirety of what was put on my client’s behalf on sentence.  Now, what I am saying is this, that it is not just material which could not have been formed part of any of what I am going to call a conviction hearing that was absent so as to produce the unfairness at sentence.  It was also any material about the reasons, including motivation and deliberateness, et cetera, by which the conduct was committed.

Now, your Honours will recall that in the Court of Criminal Appeal one of the two issues which were explored proviso style, that is, would it have made a difference, was the availability of a defence of honest and reasonable mistake of fact.  But, of course, though one might lose that case you might have an excellent set of facts in mitigation of penalty if you were mistaken, honestly mistaken – I have to leave out reasonable – but honestly mistaken, in relation to the law. 

All of those opportunities were there, and as the Chief Justice says on page 77 at paragraph 84 of the address on sentence, I would extend this to the whole of the conduct of the proceeding, that it “graphically illustrates” the agent’s “total inability to grasp the nature of the case and the issues raised”, in that case on sentence.  So in answer to Justice Kiefel’s question, no, there is a very straightforward proviso style answer to the whole of my position ‑ ‑ ‑

KIEFEL J:   What can you tell us then about the ground in the draft notice of appeal, 2e?

MR WALKER:   Your Honour, in our submission, it works this way.  Their Honours held in the Court of Criminal Appeal that the hearing – and I stress there was only one hearing – that the hearing bore the character of an unfair hearing by reason of the agent’s incompetence, and for that reason the sentence should be set aside and subject to a rehearing under section 12.  The premise of that conclusion which, with respect, is plainly right and in the interests of justice, is that the hearing was unfair because of the incompetence of the representative.

GAGELER J:   Do you not need to add, and the result may have been different?

MR WALKER:   If I do, you should not grant special leave.  It is as simple as that – it is as simple as that.  The one point I offer in answer to that question is not when we can say that root and branch, the hearing was unfair.  If we are to be convicted we should be convicted on a fair trial when the following things could happen ‑ where sensible admissions could be made, where co‑operation could be displayed, where explanation could be given, where false or baseless issues are not raised – and that, in our submission, is the way we conduct ourselves in answer to an allegation of crime.  Assuming we still wish to plead not guilty, that is something which we have been completely deprived of by the same unfairness which produces the obviously correct conclusion that the sentence should be satisfied.

Now, that is my only answer to your Honours’ questions.  I cannot pursue it further than that.  In our submission, that is a salutary matter for this Court to consider, that is, does proviso‑style reasoning apply to appeals such as this governed by the general appellate provision that is found in 5AA, notwithstanding there is an operative error for at least part of the outcome of the case, in this case the sentence, produced by unfairness?  Not produced by an error in terms of interpreting a statute or something but by the unfairness of the procedure; that is the point.

KIEFEL J:   Yes, thank you.  Mr Solicitor, we need not trouble you save for one inquiry.  Are costs sought in this matter?

MR SEXTON:   It is an appeal from the Court of Criminal Appeal.  There has already been some discussion earlier this morning about the question of costs in criminal cases.  Joly, of course, is not from the Court of Criminal Appeal but I think the argument has largely revolved around the proceedings in Hudson here.  I think it should be governed by the criminal case, your Honour.

KIEFEL J:   So no order for costs?

MR SEXTON:   Yes.

KIEFEL J:   Yes, thank you.

In the matter of Hudson v Director General, Department of Environment, Climate Change and Water we see no reason to doubt the correctness of the conclusion of the Court of Appeal that there was no miscarriage of justice because the appellant could not have succeeded in his defence even if he had been competently represented.  Special leave is therefore refused.

In the matter of Joly Pty Ltd v Director General, Department of Environment, Climate Change and Water this application is dependent for its success on a grant of leave being made in Hudson v Director General.  It follows from the refusal of leave in that case that this application is refused.

The Court adjourns to 3.30 pm on Monday, 4 February 2013 in Canberra.

AT 2.44 PM THE MATTERS WERE CONCLUDED