Janz v Woolven

[1991] HCATrans 80

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A29 of 1990

B e t w e e n -

MICHAEL ARNOLD JANZ

Applicant

and

BARRY WILLIAM WOOLVEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 10.25 AM

Copyright in the High Court of Australia

Janz 1 15/3/91

MR M.L. ABBOTT, QC:  May it please the Court, I appear for

the applicant with my learned friend,

MR P.J. HASKETT. (instructed by the Legal Services

Commission of South Australia)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

May it please the Court, I appear for the respondent with my learned friend, MR P.Y. WILSON.

(instructed by Crown Solicitor for South Australia)

MASON CJ: Yes.

MR ABBOTT:  There are proposed substituted grounds of appeal

which we have filed with the Court.

MASON CJ: Yes, we have them.

MR ABBOTT:  And I seek to rely in this application for leave

upon those proposed substituted grounds of appeal.

We have also filed an outline of argument of the

applicant.

MASON CJ: Yes, we have that.

MR ABBOTT:  And I would seek to address the Court pursuant

to the outline. It is our submission that the

questions of general principle and public

importance which are raised by this application for

special leave are whether, given that in some

South Australian Acts which provide for

offences - - -

MASON CJ: Perhaps you might proceed to the substantial

point directly, Mr Abbott.

MR ABBOTT:  Yes, if the Court pleases. The substantial

point has as its starting point Cobiac v Liddy;	a
decision of this Court, decided some years ago.

Cobiac v Liddy would, but for the provisions of the

Criminal Law (Sentencing) Act, according to the

judgment of the Full Court in this case, have
applied.	The Full Court in this case held that

because of the provisions of the Criminal Law

(Sentencing) Act, namely, sections 20 and 37, that,

in effect, Cobiac v Liddy did not apply and that

there was therefore a complete prohibition on the

utilization of powers contained in the Criminal Law

(Sentencing) Act. If I could take the Court to

those sections.

MASON CJ:	We are having some difficulty locating that statute, Mr Abbott; that is the problem at the
moment.
MR ABBOTT:	May I wait then while the Court obtains the

statute.

Janz 2 15/3/91

MASON CJ: Are the provisions sufficiently set out in the

judgment of the Full Court?

MR ABBOTT:  Yes.

MASON CJ: Well, perhaps we will look at those pending the

arrival of the statute itself.

MR ABBOTT:  The application book, page 10

MASON CJ:  We have the statute now. Now, you want to take

us to section 20?

MR ABBOTT:  Yes. There are two parts of the Criminal Law

(Sentencing) Act which are appropriate. Part II of

the Criminal Law (Sentencing) Act which commences

with section 6 and includes section 20 as the last

part of Division II, states that:

Nothing in this Division

and in terms of section 20(b) -

derogates from a provision of a special Act

that expressly prohibits the reduction,

mitigation or substitution of penalties or

sentences.

And it will be seen that prior to section 20 there

are three sections of relevance to this

application. They are sections 15 which talks of:

Where a Court finds a person guilty of an

offence but finds the offence so trifling that

it is inappropriate to impose any penalty, it

may -

(a) without recording a conviction, dismiss

the charge -

and subsection (2):

A court may exercise the powers conferred

by this section notwithstanding any minimum

penalty fixed by a special Act.

Section 16 is in different terms, the relevant part of which reads:

Where a court finds a person guilty of an

offence for which it proposes to impose a fine (but no other penalty) and the court is of the opinion -

and then follows some material which I will not

read out -

Janz 3 15/3/91

the court may impose the fine without
recording a conviction.

I draw the Court's attention to section 17 without reading it because the important words in

sections 15 and 16 upon which we rely are the

words:

without recording a conviction.

They are central to the argument that we make. I

then turn to section 39, which is in Part V of the

Act and the Court will see that in section 39 there

is a further power to deal with offenders expressed

in these terms:

Where a court finds a person guilty of an

offence the court may if it thinks that good

reasons exists for doing so, discharge the

defendant -

and then the important words are -

without recording a conviction ..... upon

condition that the defendant enter into a

bond.

Those words, in that section 39 are, however,

governed by section 37 at the top of the page and,

in particular, section 37(b)(ii), which reads:

The powers vested in a court by this

Part -

(b) are not exercisable in relation to -

(ii) any other offence in respect of which a

special Act expressly prohibits the reduction,

mitigation or substitution of penalties or

sentences.

So when this matter was ventilated before the

Full Court, the Full Court took the view that but

for the existence of sections 20 in Part II and

section 37 in Part V Cobiac v Liddy would have

applied. But the Court, in essence, stated that

there was a further hurdle imported into the

criminal justice system by sections 20 and 37, the

result of which was that it imposed an absolute

prohibition upon reducing, mitigating or
substituting the penalties which are referred to in

a special Act, in this case, the Road Traffic Act.

If the Court pleases, in our outline of

argument on page 2 we first of all refer to the

relevant sections, sections 47 and 47b of the Road

Traffic Act which are expressed to operate only

Janz 4 15/3/91

where a court convicts.	The relevant sections are
section 47(3) and section 47b(3).	I need not read
those sections.

As we have observed in the outline,

sections 15, 16 and 39 of the Criminal Law
(Sentencing) Act all talk of "without recording a

conviction".

Our argument proceeds in this way: that given

that it is not mandatory for a magistrate to

convict a defendant under the Justices Act of any

offence, or it is at least arguable that that is

so, and the Justices Act and the Road Traffic Act
both deal with situations where the court stops

short of actually convicting, and we have referred

to those sections, so we say that given that there

is no necessity in every circumstance to convict,

it is not in all cases that the precondition which

is inherent in the special Act - in this case

section 47(3) and section 47b(3) - is activated.

To put it another way, our answer to any

suggestion that Cobiac v Liddy is no longer

applicable is twofold. First, we say that while

section 37 may be clear about its prohibition,
section 20 of the Criminal Law (Sentencing) Act is

not, and the Court will see that the wording of
section 37 of the Criminal Law (Sentencing) Act is

much more direct than the wording of section 20 of

the Criminal Law (Sentencing) Act. In section 20

appears these rather strange words:

Nothing in this Division -

(b) derogates from a provision of a special

Act that expressly prohibits the reduction,
mitigation or substitution of penalties or

sentences.

Whilst in section 37 of the Criminal Law

(Sentencing) Act we read that:

The powers vested in a court by this Part -

(b) are not exercisable in relation to -

(ii) any other offence in respect of which a

special Act expressly prohibits the reduction,

mitigation or substitution of penalties or

sentences.

Janz 5 15/3/91

DAWSON J: Section 37 only applies to bonds, does it not?

MR ABBOTT:  Where it is proposed to impose a bond, yes. So

we say that both section 20(b) and section 37(b) of

the Criminal Law (Sentencing) Act are both

conditional. They are expressed to be subject to

the terms of the special Act.

So one must then look to the special Act which, when utilized, activates section 20 and

section 37 and thereafter removes the merciful

provisions of the Criminal Law (Sentencing) Act.

When you look at the provisions of the special Act

in this case, which turns out to be the Road

Traffic Act, sections 47 and 47b - - -

TOOHEY J: Just before you take us to that Act, Mr Abbott,

could I just understand the argument.	In relation
to section 37, you seem to accept that	there are
problems there for you in the way that	the Act has
been framed.

MR ABBOTT:  More problems than with section 20.

TOOHEY J: All right, more problems, yes. In relation to

section 20, does it follow from your argument that

if the Court is invited to exercise its powers

under section 16 it may impose a fine without

recording a conviction, but once it records a
conviction then the sections of the Road Traffic

Act inevitably come into operation?

MR ABBOTT:  Yes, we only rely upon sections 15 and 16 as

applicable in this case in so far as they talk of

"without recording a conviction", because we say

the special Act, namely the Road Traffic Act, has a

condition precedent, namely a conviction. I refer

the Court to the Road Traffic Act, section 47(3),

where the mandatory licence disqualification, which

was the subject of the Full Court appeal, is

expressed in these terms:

Where a court convicts a person of an offence

against subsection (l) ..... the following
provisions apply -

and we say that those are words of particular

importance because section 47 and section 47b, both

in subsections (1) and (2), talk about "for an
offence" as distinct "for a conviction of an
offence". That dichotomy follows through the Road

Traffic Act and if one looks, for example, at

section 47(4), it reads, that:

In determining whether an offence is a first or subsequent offence ..... any previous

Janz 6 15/3/91

offence ..... for which the defendant has been

convicted will be taken into account -

and there are a number of like sections to be found

in the Road Traffic Act: section 43, section 47b,

section 47e and section 47h.

TOOHEY J:  Mr Abbott, is there any difference between

convicting and recording a conviction?

MR ABBOTT: There may not be any difference between

recording a conviction and convicting.

TOOHEY J:  I just wonder why sections 15 and 16 use that

sort of language. They do not say, "The court may

impose a fine without convicting", rather almost

seems to imply that the court has gone through the

process of convicting but has the power to direct

that no conviction be recorded. But I am not sure

that there is a difference between the two

expressions or what it might be.

MR ABBOTT: Certainly, there is an argument that there is a

difference between convicting and it follows on the

argument that we have sought to make that on the one hand the difference between an offence being

proved and a magistrate then doing something to an

offender in consequence of finding the case proved

without resorting to a conviction.

TOOHEY J: Well no, without resorting to recording a

conviction.

MR ABBOTT:  To recording a conviction.

TOOHEY J: If that is right, then you cannot bring yourself

so readily within section 47, can you, because you

are a person who is being convicted, although not a

person who has had a conviction recorded against

you?

MR ABBOTT:  In those circumstances, we could not more

readily bring ourselves within section 47(3), but

we would say that the act of convicting someone is

more than merely finding a case proved against them

and there are a number of authorities which have

dealt with that difference, not the least of which

is Cobiac v Liddy.

So our argument proceeds on this basis, that

Road
the prohibition in the special Act, namely the a court convicts and when you link that with

section 37 of the Criminal Law (Sentencing) Act, we

say that the prohibition expressed in section 37

only occurs where the special Act is activated and

Janz 15/3/91

that activation of the special Act only occurs

where the court convicts.

In other words, there is an area between

finding a case proved and taking the step of either

convicting or recording a conviction in which the

provisions of the Criminal Law (Sentencing) Act

which speak of, "without recording a conviction",

namely sections 15, 16 and 39 can find work to do.

MASON CJ: But you do have real problems with section 37, do

you not, because the language of 37 is so wide that

it precludes the exercise of the relevant powers of

the Part, in relation to offences of a class?

MR ABBOTT: That is so, but the words

MASON CJ:  And it is not expressed in such a way as to hinge

upon conviction. In other words, it looks to

offences of a particular class.

MR ABBOTT:  But it says, with respect, Your Honour:

any other offence in respect of which a

special Act expressly prohibits the

reduction -

et cetera. The special Act does not expressly

prohibit the reduction until and unless the court

convicts.

MASON CJ: But does that matter?

MR ABBOTT:  Well we would say it does matter and that

section 37 does no work unless and until where a

court convicts and we point to the many many
provisions of the Road Traffic Act which talk on
the one hand of penalties being imposed for

offences simpliciter and penalties or parts of the

total package of penalties -

MASON CJ: Yes, I follow the argument but it may be that

section 37(b) is referring to a class of offence by

reference to a description to be ascertained from

the words that follow.

MR ABBOTT: That may be so, but we say, with respect, that

highlights the need for leave in this case, to have

this matter ventilated because, although it was

canvassed before our Full Court, the judgment - and

I take the Court to the judgments - - -

TOOHEY J: Just before you do, can I just take you back to

that question of the language of sections 15
and 16. It requires that the court find the person

guilty of an offence - - -

Janz	15/3/91
MR ABBOTT:	Yes.
TOOHEY J:	- - - not merely that the charge has been proved,

but it requires that the court find the person

guilty and then empowers the court to refrain from

recording a conviction. Does it follow that there
has been no conviction in terms of section 47 or

the relevant sections of the Road Traffic Act?

MR ABBOTT:  In our argument, that would have to be so,

because if a finding of guilt is equated with a

conviction then our argument in relation to section

15 fails. But we say this highlights the steps, as

it were, that follow when a magistrate deals with a person. Firstly he finds a case to answer, then he

finds a case proved, then he may find a person
guilty, then he may convict and then, eventually,

he may record a conviction, and the question of

special importance raised by this leave application

is at what point in that process do the provisions

of the Criminal Law (Sentencing) Act have work to

do, or not?

Could I briefly take the Court to the judgment

of the Full Court? That is at page 9 of the

application book, and at page 10, His Honour the

Chief Justice, who delivered the judgment, at

line 10, said:

It will be observed that the minimum periods

of licence disqualification apply only where there is a conviction and that was the basis of the decision in Cobiac v Liddy.

He then refers to the provisions of the Criminal

Law (Sentencing) Act and eventually at page 12,

line 9, says:

The question to be decided on these

appeals is whether sections 16 or 39 or either

of them -

and we would add "and section 15" -

authorize a magistrate not to proceed to a
conviction where an offence against

section 47b of the Road Traffic Act has been

proved, thereby avoiding the imposition of the

period of disqualification stipulated by

section 47b(3) for offences against

section 47b which are not trifling.

And then we find that the Chief Justice on page 13,

line 4, said, apropos of section 37(b)(ii):

Although the use of the expression "in

relation to ... any other offence" -

Janz 9 15/3/91

which we find in section 37 -

presents a problem of construction, I consider

that the intention disclosed by section 37 is

that the prohibition against the exercise of

the Part V powers is limited to such exercise

as would operate to reduce, mitigate or

substitute for, a penalty -

in other words, any penalty -

which is subject to the prohibition in the

special Act.

And, at the bottom of the page, lines 25, he said:

I construe the section -

that is section 37 -

as meaning that the Part V powers cannot be

used in a way which would effect a reduction,

mitigation or substitution in respect of a

penalty where the special Act prohibits the

same.

And so he went on to say at page 14 that

dealing with an offender under section 39 would

remove the obligation. So the decision of the Full

Court turned upon the prohibition without really addressing the necessary pre-condition argument

which, although it was raised, does not appear to

have been canvassed at least in the judgment.

The decision of the Full Court was based

almost entirely upon the fact that the wording of section 37 prohibited and so, the Court said, the wording of section 37 is the be-all and end-all of

any powers under section 5 where there is:

a special Act -

which -

prohibits the reduction, mitigation or
substitution of penalties -

His Honour did find some difficulty with section 20

and, as he said, at page 14, line 13:

I have been somewhat troubled by the

difference in the wording of section 20 and

section 37, but I have reached the conclusion

that the effect of section 20 is the same and

that the power under section 16 cannot be

exercised so as to avoid the mandatory licence

disqualification.

Janz 10 15/3/91

And, eventually, a few lines further down, he said:

The retention of section 47ia in its

present form is anomalous and apparently

escaped the attention of the drafter of the

1988 amendments.

Section 47ia of the Road Traffic Act is a section which supports our argument. Section 47ia talks in these terms:

Where the court before which a person is

charged with a prescribed first or second

offence convicts the person of the offence, or
finds that the charge is proved but does not

proceed to conviction, the court must, unless proper cause for not doing so is shown, order

the person to attend, within a period fixed by
the court being not more than six months from
the making of the order, a lecture conducted

pursuant to the regulations.

DAWSON J: That provision pre-dates the provisions of 47

and 47b relating to sentence, does it?

MR ABBOTT:  I am not sure on that, Your Honour. It was

described by the Chief Justice, in the judgment of
the Full Court, as anomalous and apparently

escaping the attention of the drafter of the 1988

amendments and it is true that there were
amendments in 1988 but those 1988 amendments did

not deal with the problem which we say arises,

namely that certain sections are expressed to

provide penalties only where a court convicts. It

would have been an easy matter, even in 1988, to

change the wording to be "where a person commits an

offence" and the wording in section 47b(3), for
example, has remained unchanged through a

succession of legislative amendments.

DAWSON J:  Mr Abbott, your strongest argument, just for the

purpose of testing it, is based on section 20, is

it not, of the Sentencing Act?

MR ABBOTT:	Yes.
DAWSON J:	And it speaks of derogating:

from a provision of a special Act that

expressly prohibits the reduction -

et cetera of sentences. Now, why is not the

section, taking section 47 of the Road Traffic Act,

why is that not a provision which does prohibit:

the reduction, mitigation or substitution of

penalties or sentences.

Janz 11 15/3/91

It may do so only after conviction but it

nevertheless is a provision that does just that.

MR ABBOTT:  Yes.

DAWSON J: Well, then, why does not section 20 apply?

MR ABBOTT:  Because we say that you read into section 20 the conditional implementation of section 47.

DAWSON J: But why should you?

MR ABBOTT:  We say that it makes better sense; that the

merciful provision of the Criminal Law (Sentencing)

Act were not meant to be excluded from the provisions of section 47.

DAWSON J:  But it is equally apparent that section 47 was

not meant to be particularly merciful and in this

day and age of purpose of construction of statutes

surely it is fairly clear that section 47 was meant

to provide a compulsory sentence.

MR ABBOTT:  The effect of that is as the Full Court

recognized, that the fine and imprisonment could
attract the operation of the Criminal Law
(Sentencing) Act but the licence disqualification,

in so far as the minimum is concerned, could not.

MASON CJ:  Now tell me, how are you construing (b) of

section 20, you are reading something into it?

MR ABBOTT:	Yes.
MASON CJ:	What are you reading into it?
MR ABBOTT:	We are reading into it, in effect, the words:

Nothing in this Division -

(b) derogates from a provision of a

similar Act once that Act is activated in the sense

that the prohibition - - -

MASON CJ: It does seem to be performing rather massive

surgery on subsection (b).

MR ABBOTT: With great respect to Your Honour, the

prohibition on reducing, mitigating or substituting

the licence disqualification, occurring as it does
only after conviction, we say is a reason for

reading section 20 and section 37 for the way in

which we contend.

TOOHEY J: But on your argument any statute that provided

mandatory or non-reducible penalties could only

Janz 12 15/3/91

operate once there had been a conviction, or

perhaps putting it another way, could be avoided by

the court not recording a conviction.

MR ABBOTT:  Yes, that would be so. Something of the sort

occurred in Cobiac v Liddy but I recognize that
there is a greater hurdle put in the way of a

Cobiac v Liddy application of the Criminal Law

(Sentencing) Act by section 20 and section 39.

DAWSON J:  Then you virtually could never have a mandatory

sentence, could you?

MR ABBOTT:  Not under Cobiac v Liddy and the legislation

that then pertained.

TOOHEY J:  Not under your argument, forget about Cobiac

V Liddy.

MR ABBOTT:  Under my argument, no, because there would then

be an opportunity for a magistrate to deal with an

offender in relation to licence disqualification

without proceeding to a conviction and, therefore,

without attracting the operation of section 20 and

section 37.

DAWSON J:  The mandatory sentence would always be contingent

upon there being a conviction, would it not?

MR ABBOTT:  Yes. The only other matter that I can urge in

support of the application is section 30 of the

Acts Interpretation Act which was referred to in

Cobiac v Liddy and that refers to the penalty set

out at the foot of a subsection that contains words

creating an offence, indicates that the offence is

punishable on conviction, again, the distinction

drawn in the Acts Interpretation Act between

conviction on the one hand, and penalties for an

offence simpliciter on the other. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Abbott. The Court need not

trouble you, Mr Solicitor.

The Court is of opinion that the decision of

the Full Court of the Supreme Court is not attended
with sufficient doubt to justify the grant of

special leave to appeal.

MR DOYLE: There is no application for costs, if the Court

pleases.

MASON CJ: Thank you.

AT 10.58 AM THE MATTER WAS ADJOURNED SINE DIE

Janz 13 15/3/91