Ivory v The Queen

[2015] HCATrans 94

[2015] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S265 of 2014

B e t w e e n -

JULIAN FLETCHER IVORY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 APRIL 2015, AT 11.08 AM

Copyright in the High Court of Australia

MR W.P. LOWE:   May it please the Court, I appear for the applicant with MR T.M. HEALEY.  (instructed by Bilbie Dan Solicitors)

MR J.H. PICKERING, SC:    I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Lowe.

MR LOWE:   Your Honours, the special leave questions in relation to this application are set out at application book 86.  They are, we say, questions of general importance to be determined.  Those questions are, in a nutshell, whether the Court of Criminal Appeal fell into error in determining that it was not open for that court to consider issues of disparity arising from the exercise of prosecutorial discretion.  The Court of Criminal Appeal held that this Court’s decision in Elias compelled that conclusion and at application book 76 in reasons for judgment, paragraphs 60 to 66 compel, we say, that conclusion and, in particular, paragraph 65.

The second question arises from consideration of the first.  What is the legitimate scope of operation of a statement of principle in this Court’s decision of Green regarding the practical difficulties and limitations arising from considering parity in the context of co‑offenders charged with different offences?  It is contended that the question is whether this Court should draw a necessary distinction between, on the one hand, executive decisions made in the prosecutorial process which are to be ordinarily regarded as being insusceptible of judicial review and, on the other hand, decisions involving the exercise of what we call in our written submissions prosecutorial sentencing discretion.

BELL J:   This is a submission that one can – putting to one side the question of charge selection there is some role for the court in terms of the – determining the fairness or otherwise of the way the prosecution puts the facts upon which co‑offenders are to be sentenced.

MR LOWE:   We say it is something that the court must take into consideration as a question of fairness in the overall, overarching criminal justice system.

BELL J:   How do you deal with this?  It is said against you that in your client’s case the victim of this assault was able to say “I know that it was Mr Ivory who smashed my knees with the baseball bat.  After that, I know I was hit a lot and I cannot say by whom.”

MR LOWE:   Yes.  In response to that it is clear that there was an interview conducted with the victim and that formed the basis of the statement of facts that were asserted against my client during Mr Ivory’s sentencing process.  What we say is, jumping ahead – I wish to address your Honours on this whole issue of sentencing, prosecutorial sentencing discretion – but what we say is that there are a number of issues that arise, at least three, from the way that the Crown ran its differential cases – one against my client and that against the co‑offenders.  We say that that particular way that the sentencing process took place engenders a legitimate grievance in my client which can only derive from the exercise of prosecutorial discretion.  What we would say in relation to the first category ‑ ‑ ‑

HAYNE J:   Let us unpack that a little, can we?  The matters Justice Bell put to you – are they matters that would provide at least a partial explanation for why different charges were preferred against three co‑offenders?

MR LOWE:   Yes.  It is a partial explanation.

HAYNE J:   Would they be matters that would provide any explanation for why the two co‑offenders were dealt with for ABH rather than GBH?

MR LOWE:   The nature of the injuries were identified in my client’s statement of facts which could only constitute grievous bodily harm.  In the sentencing process for the co‑offenders the sentencing judge was faced with the nature of those injuries and, of course, he said he had to sentence for AOABH but he said it was a fairly strange set of fractures that would only be ABH.  So this feeds into something that I will be positing to you that one of the issues that we say falls to be decided – if there is to be any further appeal – is the issue of whether in prosecutorial sentencing discretion things such as the formulation of the different forms of joint criminal enterprise, the categorisation of the injuries which can be conflicting between the two sets of sentencing - arising out of the same factual matrix ‑ ‑ ‑

HAYNE J:   Can I just press you a little further on this?  If Mr Ivory has a sense of grievance, does the grievance derive from what he either knows or thinks he knows about the participation of others in this offending or does it derive from an understanding of what could have been proved in court?  If it is the former, one set of considerations emerge.  If it is the latter, perhaps other considerations emerge.

MR LOWE:   I would be putting it to you, and respectfully submit that it is, in fact, the latter because it is the objective.  It is about looking at the two statements of fact and how different – arising from one joint criminal enterprise – and at the end of the day the Crown, faced with instructions from the victim, no doubt - that is what is posited their written submissions but there is no evidence of that; you can proceed on the basis that probably this has happened – that they were not able to identify who inflicted the particular injuries.  But the nature of a joint criminal enterprise seems to fly in the face of how it is ordinarily understood.  Whether the Crown is able to identify who inflicted which particular injuries does not seem to concern the Crown at trial but at sentence we say that there was favourable treatment in the sense that the two statements of fact on the sentencing just do not seem to add up.

BELL J:   This was a sentence hearing, looking at the co‑offenders, because the co‑offenders agreed to plead guilty to the charge that was ‑ ‑ ‑

MR LOWE:   That was offered to them.  Of course they would ‑ ‑ ‑

BELL J:   That was offered and I suppose the prosecutor might have considered that to proceed to trial with no expectation that there would be any evidence to support the role of either of those accused ‑ ‑ ‑

MR LOWE:   With great respect, they do have an interview with the victim.  Ordinarily, if a victim cannot recall what happened they would be entitled under the Evidence Act to lead - or fail to recall, they would be able to get precisely the statement of facts as was alleged against my client, if that was the way it was to proceed at trial.

BELL J:   Lots of things, Mr Lowe, depend on matters that the court necessarily will not know.

MR LOWE:   Yes, I accept that.

BELL J:   Those might include things like a victim of a very nasty assault having made a statement and then facing the idea of giving evidence in court, determining to give a more anodyne version and yes, of course, there is a mechanism under the Evidence Act to obtain leave to question as if cross‑examining, but a person might form a fair judgment that a jury would not be satisfied beyond reasonable doubt in the circumstances, based on evidence of a witness.

MR LOWE:   I accept what your Honour has put to me.

BELL J:   Now, dealing with all these very real forensic considerations that fall to the prosecutor, what is the principle that you propose, that the ‑ ‑ ‑

MR LOWE:   Well, what we say in the context of Liang is that no issue of the correctness of the decision in Liang is being questioned on this application and as I would understand Liang itself, it is a selection of charge case involving one offender with no issue of parity of considerations coming into play.  You have the twin peaks, if I can put it - you have there the decision in Elias rejecting that there is any sentencing principle like Liang, and then you have the De Simone principle.  So you cannot sentence up and you cannot sentence down in these types of offences. 

All you have at the end of the day - the only remedy my client has, he pleaded first in time and it took the other co‑offenders a year or so to plead guilty - the only remedy he has is to agitate, given the way that things panned out in sentence, looking at the way that the Crown categorised the injuries against - that he was involved, as grievous bodily harm, as against the co‑offenders, actual bodily harm, that he was, in his statement of facts - the Crown alleged that all three offenders inflicted injuries on the victim and when it came to sentence of the other two co‑offenders, they inflicted no injuries on the victim but were there to find support so that the two cannot stand.  Also we say another salient factor in this matter, the sentence matter, was the categorisation of joint criminal enterprise in the way that I have just articulated.

So my client is faced with his sentence for – pleading guilty to the statement of facts or being sentenced on those statement of facts as against the co‑offenders who have been dealt a more generous or advantageous benefit from the sentencing process.

BELL J:   Your client pleaded guilty and there was no challenge to the sentence.

MR LOWE:   There was no challenge to the facts, yes.

BELL J:   His complaint is that in circumstances when later the Crown prosecuted the co‑offenders, the evidence available to the Crown, it would seem, was of a different character and it follows they were dealt with for a different offence and sentenced on principles applicable to that lesser offence.

MR LOWE:   That is right and that is why I can only agitate that a grievance associated, not with choice of charges which is insusceptible to judicial review - and we accept that and we do not cavil with that, but what we do say is that the only way that decisions like this in the prosecutorial process, we say that we would seek this Court to draw the difference between those prosecutorial discretions which are found in the Director of Public Prosecutions Act, finding indemnities, giving of undertakings, ex officio indictments, nolle prosequis and the like, the source of those powers are found in the DPP Act but sentencing itself, except for the fact - it is not referred to as any part of the DPP’s functions, but it is obviously part of the incidental and implied powers.  There seems to be only one piece of legislation about drafting of agreed facts and I have filed some legislative material we say is relevant and the ‑ ‑ ‑

HAYNE J:   Just before you come to that, let me see if I can identify the argument with some clarity.

MR LOWE:   Yes.

HAYNE J:   Mr Ivory accepts, I think, that he was rightly dealt with for GBH because he pleaded guilty to it.

MR LOWE:   Yes.

HAYNE J:   I think the next step in your argument must be the co‑offenders, not only could have but should have also been dealt with for GBH not ABH?

MR LOWE:   Yes.

HAYNE J:   Because they were not, the third step becomes Mr Ivory should get less than he got.

MR LOWE:   Or a legitimate sense of grievance about the whole process.

HAYNE J:   But the consequence is that Mr Ivory should get less.

MR LOWE:   Potentially, yes.

HAYNE J:   On appeal.

MR LOWE:   Yes, potentially less.  That was what we agitated.

HAYNE J:   If he is not getting less, we are beating the air, I think.

MR LOWE:   Absolutely.

HAYNE J:   That is what matters to Mr Ivory.

MR LOWE:   Yes, absolutely, it does.  Of course, that is the position I would take that a lesser sentence was warranted.  We can only go through the rubric of what I am seeking to make a difference between the powers which are unreviewable and other nuanced decisions made by the Director about which facts are relevant to sentence, the basis on which individuals are put forward as part of a joint criminal enterprise, the categorisation of injuries. 

These matters, we say, are susceptible to at least some sort of judicial examination if only – if only – and the only way that Mr Ivory could ever

receive a lesser sentence because he pleaded first in time, he cannot agitate it after the event what happened, he has been convicted – the only way he can agitate any lesser sentence is in this situation – a lesser sentence is warranted, a justifiable sense of grievance exists and he can only do that by saying that he has been disadvantaged in some way in the sense of equal justice identified in Green and also Elias.  One of the issues, we say, is whether the Court of Criminal Appeal is correct to say that, at no stage can you agitate where co‑offenders in the same joint criminal enterprise can never be the subject of agitating abuse – or not abuse, prosecutorial discretion.  Those are my submissions in a nutshell.

HAYNE J:   Yes, thank you very much, Mr Lowe.  We will not trouble you, Mr Pickering. 

We are not persuaded that it is shown to be in the interests of justice generally or in the interests of justice in this particular case that there be a grant of special leave to appeal.  Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 11.25 AM THE MATTER WAS CONCLUDED