Hughes v The Queen

[1999] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P46 of 1999

B e t w e e n -

CRAIG ALLAN HUGHES

Applicant

and

THE QUEEN

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 20 OCTOBER 1999, AT 2.57 PM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   May it please the Court, I appear for the applicant with my learned friend, MR S.A. SHIRREFS.  (instructed by Fiocco Hopkins Nash)

MR D.J. BUGG, QC:   May it please the Court, I appear for the respondent, with my learned friend, MR P.N. BEVILACQUA.  (instructed by the Commonwealth Director of Public Prosecutions)

MR RICHTER: If the Court pleases, this is an application pursuant to section 40 of the Judiciary Act to remove a cause to the High Court.  The cause is an application, a motion made by the District Court of Western Australia.

GAUDRON J:   Before you proceed further, Mr Richter, I should interrupt you to say that the Deputy Registrar certifies that she holds letters, to presume copy letters addressed to the solicitors advising that none of the Attorneys-General wish to intervene, except the Commonwealth from whom she has not heard.

MR RICHTER:   We just heard today, and there is a letter which we might put on the file, if we may, which says the same.

GAUDRON J:   Yes, thank you, Mr Richter.

MR RICHTER:   Thank you, your Honour.

GUMMOW J:   This motion in the District Court, is that in written forms?

MR RICHTER:   The motion to quash, no, it was not.  Sorry, it was apparently in written form but is not on file.

GUMMOW J:   That is what we were wondering.

MR RICHTER:   It is not in the application book, your Honour.  It was effectively made orally, and the transcription, I think, is there, though the argument was oral and the application book contains the transcript of that.  The one thing it does not contain is the first time it was actually mentioned, when the matter was mentioned on 8 December, and there is reference to the passage in our outline of submissions, and that is that, on that occasion, on 8 December 1998, the learned prosecutor at that stage said it was a Commonwealth offence.  We have taken the trouble to photocopy the pages 8 and 9 of the transcript which indicate the state of confusion that existed at the time.

GAUDRON J:   I have some difficulties with your notice of motion.  You seem to treat the motion to quash the indictment as the entire cause.

MR RICHTER:   It is obviously not the entire cause in the sense that if there is a trial we are not seeking to remove the trial.  So, in that sense, I suppose we are seeking to remove a part of the cause, if the cause be the whole trial.  That part being the motion to quash the indictment.  It is limited to that.

GUMMOW J:   Just pardon us a minute, Mr Richter. 

GAUDRON J:   Yes.

MR RICHTER:   The motion to quash, essentially, was a motion to quash the indictment on the grounds that ‑ ‑ ‑

GUMMOW J:   Yes, but one of the indictments is at 13, is that right?

MR RICHTER:   At page 13, yes, your Honour.

GUMMOW J:   Now, these prescribed interests, were there any particulars given of what they are said to be?  Let me tell you why I ask.  Were they said to be shares, or debentures or something else?

MR RICHTER:   No, they were not.  They were in the nature of an investment scheme.  They were not given.

GAUDRON J:   Are there particulars?

MR RICHTER:   I understand not.  Mr Shirreffs, who did the trial, tells me not.

GUMMOW J:   It could be important when it gets here to know whether there is a corporation involved.

GAUDRON J:   Is there any possibility of any agreement as to facts?

MR RICHTER:   We can agree as to the facts.  As I understand it, there is no corporation at fault.  Is that right?  That is in issue.

GAUDRON J:   That is in issue.

MR RICHTER:   It is in issue, it seems, yes.  But there will be an agreement of facts as to that aspect of it if it assumes any significance.  At the very least, it could be determined on the basis of the Crown’s assertion.  The Crown asserts there is an interest in the corporation that is being offered.  That is being disputed.  But for the purposes of argument, if one takes the Crown’s position, and we are happy to do that, for the purposes of this motion, then there will be no problem in terms of agreed facts.

GAUDRON J:     For the moment, I do not see that as satisfactory at all.  This is a motion to quash an indictment.

MR RICHTER:   Yes, your Honour.

GAUDRON J:   It may well depend on whether there is an interest in a corporation involved.  That is a disputed factual matter.  The way you are putting this submission sounds as though that is going to be disputed at trial.

MR RICHTER:   Well, some of it, in part, yes, as to that.  But the real problem is the problem of what the trial is going to be.  In other words, is it going to be a trial of a State offence, a trial of a federal offence ‑ ‑ ‑

GUMMOW J:   I know, but in answering that question it may be vital, on one view of it, to know whether the offence is one which could, not necessarily has been, but could be reached by federal law, you see.

MR RICHTER:   Via the Corporations power?

GUMMOW J:   Yes.

MR RICHTER:   Yes, I understand that.

GUMMOW J:   If we remove it in the present state with nothing else in it, we may be dealing with some false situation.  A false and inadequate situation.

MR RICHTER: That may be so, but the motion to quash does not go to that issue even in the court below, because it goes to the sufficiency of the indictment on its face without resolving the factual issues, because the motion to quash rests on the proposition that first of all the indictment is irregularly late; that on its face it purports to be an indictment for a crime against the law of the Commonwealth in which the federal Director of Public Prosecutions, in his official capacity, lays the indictment, because it is actually signed by Ian Russell Bermingham for and on behalf of the Commonwealth Director of Public Prosecutions. So, on its face it appears to be the prosecution of a Commonwealth matter. We say it is not. We say it cannot be, and that there is no head of power for the Commonwealth to have enacted, for example, section 45.

GUMMOW J:   That is right.

MR RICHTER:   That raises the issue of whether or not, I suppose, ultimately, whether or not it could be justified under the Corporations Act, the Corporations power.

GUMMOW J:   Yes, a question may emerge, what power supports section 45?

MR RICHTER:   Precisely; yes.  That does arise, but the resolution of the matter of the motion to quash will not depend on that, because ‑ ‑ ‑

GAUDRON J:   It may.

MR RICHTER:   In our respectful submission, not on the indictment.

GAUDRON J:   I can accept your word, but for the moment I do not understand why that is so. Let it be assumed, for example, that you reach a point of severance or reading down, which seems to me a possibility even in relation to section 45.

MR RICHTER:   To give it existence under the Corporations power, yes.

GAUDRON J:   That seems to be a possibility.

MR RICHTER:   If it is a possibility and it is read down, then the Court will determine it on the basis that it can be read down and then the factual dispute can be resolved as to whether or not the case meets it.  That is why your Honour was obviously astute to say that we are not removing the whole cause, we are removing, essentially, the motion to quash of the indictment which would not depend on the factual determinations.

GAUDRON J:   I do not think we need trouble you further, Mr Richter.

MR RICHTER:   Thank you.

GAUDRON J:   Yes, Mr Bugg.

MR BUGG:   Your Honours, the respondent’s outline of submissions endeavours to address the questions which this application raises.  The first one being whether or not the Corporations Law of Western Australia creates Commonwealth offences, and therefore what is the legislative power in Western Australia to create Commonwealth offences.

GUMMOW J:   But the question is, do you oppose the removal?

MR BUGG:   Yes, I do.

GUMMOW J:   Why?

MR BUGG:   Because, your Honours, in my submission, the arguments raised by the applicant to not, in my submission, raise any question requiring constitutional interpretation.  The issues which it addresses are all, in my submission, straightforward, and do not require any determination by this Court.

GAUDRON J:   This indictment is a Commonwealth indictment.  I assume that at the very least an accused person is entitled to know under what law he or she is charged.  I would have thought that was the most fundamental of all aspects of a fair trial.

MR BUGG:   I understand that, your Honour, and I would not seek to persuade otherwise.  But, it is clear, in my submission, that the applicant is charged under the Corporations Law of Western Australia.

GAUDRON J:   By the Commonwealth Director of Public Prosecutions.

MR BUGG:   That is right.

GAUDRON J:   So, the question is your power to do it.

MR BUGG:   Yes.

GAUDRON J:   Do you do it, do you not, pursuant to the Corporations Law, not pursuant to a State commission?

MR BUGG:   It is a combination of both federal and State legislation which gives me the power to do it.  If I could take your Honours to that.  Your Honours have, I understand, a copy of the unreported decision in Hopwood and Byrnes.  Can I take you to paragraph 14 of the majority judgment.

GUMMOW J:   The plurality judgment.  There was no dissent.

MR BUGG:   I am sorry?

GUMMOW J:   It is the judgment of plurality of the court.  There is no dissent in Hopwood and Byrnes.  No majority, no minority.  There is a joint judgment and one judgment.

MR BUGG:   Yes.  The path which the Court followed through the various enactments, commencing at paragraph 14 stops for the purposes of this submission at paragraph 20.  You will see there that your Honours moved on to consider section 91(1).

GUMMOW J:   They were co-defences, were they not?

MR BUGG:   Yes, they were, and that is why the Court considered section 91(1) because ‑ ‑ ‑

GUMMOW J:   Exactly, so this question you have agitated here was not agitated in Hopwood and Byrnes?

MR BUGG:   No, it was not.

GUMMOW J:   It was involved in some of Mr Gray’s submissions, I think, maybe, but the path that the Court took took it away from them.

MR BUGG:   If I could then take your Honours to the Corporations (Western Australia) Act, and section 29(1):

The Commonwealth laws apply as laws of Western Australia in relation to an offence against the applicable provisions of Western Australia as if those provisions were laws of the Commonwealth and were not laws of Western Australia.

Then going to section 31(1):

A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of Western Australia.

The Director of Public Prosecutions, because the laws of the Australian Capital Territory are a Commonwealth law, has the power to commence a prosecution under the Australian Capital Territory law, and by the combined effect of section 29(1) and section 31(1) –

GAUDRON J:   Of the Western Australian Act?

MR BUGG:   Of the Western Australia Act.

GAUDRON J:   Okay.  Now, what provision says you can receive it?

MR BUGG:   It is a conferral of power.

GAUDRON J:   It may be, but who says that you are an officer of the Commonwealth, what would normally ‑ ‑ ‑

MR BUGG:   Section 47.

GUMMOW J:   One would expect you to be executing laws of the Commonwealth, not laws of somewhere else, and what law of the Commonwealth says you can do this?

MR BUGG:   On the reasoning that your Honours followed ‑ ‑ ‑

GUMMOW J:   No, is there any section in any law of the Commonwealth which deals with the question?

MR BUGG:   Yes, I am sorry, your Honours.  Section 47 of the Commonwealth Corporations Act, to which your Honours referred in paragraph 18 of the passage to which I was just adverting, and it was on that basis that your Honours ‑ ‑ ‑

GAUDRON J:   And this is a law for the government of the Territory, is it?

MR BUGG:   I am sorry; this is a law of the Commonwealth, for the government of the Territory, yes.

GAUDRON J:   For the government of the Territory, yes.  So, 47 ‑ ‑ ‑

MR BUGG:   Subsection (1).

GAUDRON J:   ‑ ‑ ‑ seems to depend on section 122, does it?

MR BUGG:   Yes, it does.

GAUDRON J:   In its operation in Western Australia?

MR BUGG:   No, in its operation in the Australian Capital Territory.

GUMMOW J:   We are a long way from there.

MR BUGG:   I am sorry?

GUMMOW J:   Judge  Healy was a long way from there.

MR BUGG:   Yes.  If I could take your Honours then through the reasoning that is contained at paragraph 14 and onwards of your decision in Byrnes and Hopwood, you will see that at paragraph 15 you considered the provisions of section 6(2) of the Commonwealth Director of Public Prosecutions Act, which:

provides that, in addition to those functions of the Commonwealth DPP set out in s6(1)…..the functions of the Director include:

“(a)  functions that are conferred on the Director by or under any other law of the Commonwealth -

GAUDRON J:   That means a valid law.

MR BUGG:   Yes, and section 47(1).

GAUDRON J:   Might be valid in the Territories and not elsewhere.

MR BUGG:   Yes, but it is a conferral of power in the ACT.  Then, when one goes back then to section 29(1) and 31(1) of the Corporations (Western Australia) Act, you then have, by virtue of the regulations to which your Honours referred made under section 73, which are set out in ‑ ‑ ‑

GUMMOW J:   In Byrnes and Hopwood, the offences are doubtedly corporate in nature, to use that expression.

MR BUGG:   Yes.

GUMMOW J:   That does not seem to be so here.  It seems to be debated here.

MR BUGG:   It certainly was not an issue which was raised by the applicant in the outline.

GUMMOW J:   It is now.

MR BUGG:   Yes, it is now, and I appreciate that.  Your Honour, it is my submission that the offences with which the applicant is charged are properly laid.  I do not, obviously, have the factual material before me to present to you, but there was, in the form of a particularisation, a statement of material facts tendered at the commencement of the trial.  No request for particulars was made.  I can, obviously, make arrangements for that statement of material facts to be provided to the Court if you require it.

Your Honours, in so far as the regulations are concerned, those regulations, under the Corporations (Commonwealth Authorities and Officers) Regulations, which are referred to in paragraph 19 of the Byrnes and Hopwood decision.  Under section 73 provide that:

“[e]ach of the following authorities and officers of the Commonwealth have the functions and powers that are expressed to be conferred on them by or under a corresponding law:

And the Commonwealth DPP in (d) of that regulation is named.

GUMMOW J:   Is section 45 of the Corporations Law involved in any way?

MR BUGG:   No, in my submission, it is not.  I would, with respect, adopt the comments made by this Court in Byrnes and Hopwood at paragraphs 64 and 65, when it considered the ambit of section 45, and concluded that it was governed by section 40, applied only to the Australian Capital Territory and not to South Australia, the relevant jurisdiction being considered by the Court in that case.

I read the transcript of the argument in Byrnes and Hopwood on that point this morning, and it seems that the submission had been made that the effect of section 45 extended beyond the ACT, but the conclusion of the Court – I notice Justice Kirby also considered the matter, I think, in paragraph 89 – yes, he did – and concluded that section 45 had no application to the State of South Australia and, in my submission, although we are obviously dealing here with corporations law and not the State Code, which the Court was there considering, section 45 has no different application, and is therefore confined only to the ACT. So, in my submission, the Court should not be troubled by any consideration of section 45 in this case.

GAUDRON J:   Does the State Act have something similar in it, though?  Does the State Corporations Law in Western Australia, what does that say?

GUMMOW J:   Is it 29?

MR BUGG:   Section 29, yes.

GUMMOW J:   The Commonwealth laws referred to there are defined, are they not?

MR BUGG:   Yes, they are.

GUMMOW J:   And they do not include the Code?

MR BUGG:   That is correct.

GUMMOW J:   So, section 29 had nothing to do with Byrnes and Hopwood?  They were co-defences?

MR BUGG:   Yes, they were.

GUMMOW J:   But section 29 would apply here.

MR BUGG:   Yes, it would.

GAUDRON J:   What effect do you say it has here and, particularly, what is the effect of 29(2)(b)?

MR BUGG:   In terms of the application of Commonwealth laws in relation to offences against provisions of the Western Australia Corporations Law, the offences are to be taken, not to be offences against the State, the laws of Western Australia, but rather ‑ ‑ ‑

GAUDRON J:   So, then you cannot be indicted for them under a State indictment.

MR BUGG:   I am sorry, your Honour, but ‑ ‑ ‑

GAUDRON J:   I just wonder what it means.

MR BUGG:   In terms of, I suppose, definition, it clearly intends that offences against the applicable provisions of the Western Australia law, are to be taken to be offences against the laws of the Commonwealth as if those provisions were laws of the Commonwealth.  It is only for completeness that 29(2)(b) is there.

GAUDRON J:   Well, I do not know.

MR BUGG:   That is my submission as to why it would be there.

GUMMOW J:   It is certainly not a clear, bright line, Mr Bugg.

MR BUGG:   I do not seek to argue that it is.  Some people have described it as a tortuous path.  I have certainly found it a struggle, your Honours.

GUMMOW J:   At the Commonwealth end of the path it seems to involve one or both of two things:  either the use of an express and avowed use of the Territories power, or perhaps as a fall-back provision in a severance situation, the corporations power, or the telephone power, or whatever, but they seem to be questions in there.

MR BUGG:   Be that as it may, I considered that certainly as far as the question of the authority of the Commonwealth Director of Public Prosecutions to prosecute these matters is concerned, it was a logical extension of the reasoning of this Court in Byrnes and Hopwood.

GAUDRON J:   You see, one of the reasons why I asked about 29(2)(b) is it does not seem to me that the position, the indictment, if it turned out that the Commonwealth Act was defective the indictment would not be saved by saying the prosecutor holds its commission under State law.

MR BUGG:   No, your Honours, probably because it has not been addressed in any of the outlines before you.  Of course, sections 55 and 56 must be considered, which, of course, the Court examined briefly.  I do not ‑ ‑ ‑

GUMMOW J:   Do they invest jurisdiction in courts, any of those sections?  This is of the State Act?

MR BUGG:   Yes, 55 provides jurisdiction to the courts, and I think your Honours considered the matter in Byrnes and Hopwood only in very brief form, at paragraphs 61 to 63.  You say there:

Section 55(1) operates to confer an “equivalent jurisdiction” on the several courts of each State and the Capital Territory exercising jurisdiction with respect to the trial and conviction on indictment, amongst other matters –

Then section 56 applies existing laws in Western Australia, but 56(3) states that both subsections (1) and (2) of that section are in addition to and not in derogation from the application of laws effected by Part 8, and of course, that is section 29. 

GUMMOW J:   Yes.

MR BUGG:   So, the jurisdiction point, I suppose, should be considered in light of the contents of section 55, and then the application of existing Western Australian law should be considered in light of section 56.  It is unfair, I suppose, to look at section 29 in isolation, but it is the path whereby ‑ ‑ ‑

GUMMOW J:   It gets picked up in section 31, as well, does it not?

MR BUGG:   Yes, it does.  I was really taking your Honours to 29 and 31 in dealing with the issues of my authority in this State to prosecute an offence, which is taken to be an offence against Commonwealth law.  It is on that basis, looking at the decision of this Court in Byrnes and Hopwood, the issues which are raised by this application, in my submission, are covered and dealt with ‑ ‑ ‑

GUMMOW J:   They cannot be, because section 29 was not relevant in Byrnes and Hopwood. 

MR BUGG:   I accept that.

GUMMOW J:   It could not be, because they were not Commonwealth laws, they were Codes.

MR BUGG:   I accept that, and that is why I took your Honours to the point in paragraph 20 and sought to lead you on from there, but, as I say, it is to some extent, a tortuous path.  Coming from 13 years in a State jurisdiction it is upsetting to find that you have struggled so hard to find your authority this far from home.

GUMMOW J:   It sharpens the mind.

MR BUGG:   It certainly does that, your Honour.  Your Honours, I cannot take the matter any further.

GAUDRON J:   Thank you.  We need not trouble you further, Mr Richter.

There will be an order removing so much of the cause as is involved in the applicant’s motion to quash the indictment.  The cause as removed will be listed before Justice Gummow in Canberra at 2.15 pm Eastern Standard Time on 17 November 1999 for a directions hearing.  In the meantime, the parties should see if they can reach agreement as to a stated case that will have an agreed statement of facts.  The parties can appear by video link if it suits them on that occasion.

MR BUGG:   It is more convenient for me now these days, your Honour.

GAUDRON J:   Yes.  I think there is nothing else.

AT 3.28 PM THE MATTER WAS CONCLUDED