Lacey v The Attorney-General of Queensland
[2010] HCATrans 317
[2010] HCATrans 317
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B40 of 2010
B e t w e e n -
DIONNE MATTHEW LACEY
Appellant
and
THE ATTORNEY-GENERAL OF QUEENSLAND
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 30 NOVEMBER 2010, AT 10.15 AM
Copyright in the High Court of Australia
FRENCH CJ: Before I call the matter for hearing, I am pleased to say that we are joined on the Bench today by a distinguished Canadian jurist, Justice Ian Binnie, a judge of the Supreme Court of Canada since January 1998. Justice Binnie is visiting Australia to deliver a number of lectures on judicial education and expert evidence.
Call the matter for hearing, please.
MR B.W. FARR, SC: If it pleases the Court, I appear on behalf of the appellant together with my learned friends, MR J.A. FRASER and MR A.D. SCOTT. (instructed by Howden Saggers Lawyers)
MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MS E.S. WILSON and MR G.J.D. del VILLAR, for the respondent. (instructed by Crown Solicitor (Qld))
MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia: If the Court pleases, I appear with MR A.M. DINELLI for the Attorney‑General of the Commonwealth of Australia intervening under section 78A of the Judiciary Act. (instructed by the Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS C.L. CONLEY, for the Attorney‑General for Western Australia intervening. (instructed by State Solicitor (WA))
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR L.A. BABB, SC and MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS K. HODDER, on the instructions of the Attorney‑General for South Australia intervening in support of the respondent. (instructed by Crown Solicitor (SA))
FRENCH CJ: Yes, Mr Farr.
MR FARR: Your Honour, the first thing that should be done is place formally on the record that we are seeking leave to amend the ground of appeal by adding the ground that appears in paragraph 4 of the supplementary outline of the appellant, so I formally do so.
FRENCH CJ: Is there any opposition to that?
MR SOFRONOFF: No, your Honour.
FRENCH CJ: Yes, leave is granted.
MR FARR: Thank you, your Honour. Your Honours, in the Kable Case your Honour Justice Gummow said that a provision in a State statute conferring an authority on a State court capable of exercising federal jurisdiction which is repugnant to the judicial process in a fundamental degree is not constitutionally valid. That appeared at page 132 of the judgment. Your Honour Justice Heydon acknowledged in International Finance that that central proposition has never been challenged. In Totani your Honour the Chief Justice said at paragraph 70:
The question indicated by the use of the term “integrity” is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court.
Your Honour then in K‑Generation added to that at page 530 paragraph 90:
The question whether functions, powers or duties cast upon a court are incompatible with its institutional integrity as a court will be answered by an evaluative process which may require consideration of a number of factors. The evaluation process required is not unlike that involved in deciding whether a body can be said to be exercising judicial power.
It is our submission that when such an evaluative process is conducted in relation to this matter, it leads to the conclusion that section 669A(1) of the Code, as interpreted by the Court of Appeal in Queensland, confers upon that court a function which is incompatible with the requirements of Chapter III, as explained in Kable. In our submission, the Court of Appeal is required to act in a manner which is repugnant in a fundamental degree to the judicial process.
GUMMOW J: That is a statement of conclusion. You have got to construe the section first, have you not?
MR FARR: Yes, I do. I am, I suppose, really summarising before I get down to the detail. But the repugnancy arises because the Court of Appeal, at the behest of a representative of the Executive, is involved in a process which undermines the principle of finality in criminal proceedings in what we would submit is an inappropriate way. That process, if that submission is accepted, would or may tend to undermine public confidence in the impartial administration of the judicial functions of the court. It is acknowledged and accepted, however, that the undermining of public confidence is merely an indicator of invalidity, but, in our submission, the legislation does more than merely undermine public confidence. It, in fact, requires the Court of Appeal to engage in an activity that is incompatible or repugnant to its judicial role in a substantial or fundamental way.
MR FARR: Can I briefly touch upon the issue of personal liberty because that is, of course, very much at the core of sentencing proceedings.
FRENCH CJ: We only get into this territory if your challenge to the construction adopted by the Court of Appeal fails.
MR FARR: Yes, that is quite so.
FRENCH CJ: So the first point really is the proper construction of the section.
MR FARR: Thank you, your Honour. The construction of the section, insofar as it is relevant to this matter, is dependent largely upon the degree of repugnancy that we can identify that this legislation instils in the court to act in the way that is required pursuant to the interpretation. Can I identify for the Court those matters which, in our submission, would cause this Court to hold the view that that repugnancy or incompatibility exists to the requisite extent.
HAYNE J: But on what assumption? On the assumption that the section on its proper construction gives the Court of Appeal a clean slate?
MR FARR: Yes, that is quite correct.
HAYNE J: Well, why should we make that assumption? Why should the section bear that construction? Have we not got to start by wrestling with the words before we get into any question of repugnancy?
MR FARR: Yes, and I will therefore take your Honour to that. We, of course, submit that the interpretation of the Court of Appeal has resulted in that court being able to substitute its opinion for what might be considered the proper sentence for that of the court below. That interpretation is not determinative upon the finding of error in the House v The King sense, notwithstanding that it is a discretionary decision that is the subject of the point. As we indicated in our written submissions, it is and has been well established for some time that a discretionary decision is not one which is easily overturned in that ‑ ‑ ‑
GUMMOW J: We have to get into the words, Mr Farr. It is really no good talking in abstraction.
CRENNAN J: I mean, your contention – the nub of your argument is, is it not, that “unfettered discretion”, that that phrase only comes into play once error has been shown?
MR FARR: That is right.
CRENNAN J: We need to be assisted by understanding why you urge that construction.
MR FARR: Thank you, your Honour. Can I urge that construction this way? The wording “unfettered discretion” in and of itself, in our submission, does not provide sufficient clarity to enable a court to conclude that the finding there is not necessary. There is another interpretation reasonably open upon that wording that then – that there is the necessity as to follow the usual principles of finding error which then enlivens the court’s unfettered discretion to vary the sentence in a way they seem proper.
GUMMOW J: The section begins with the words “The Attorney‑General may appeal”. The first question what is the nature of that appeal? If a certain stage is reached it seems the second limb of the section applies, the court may do something.
MR FARR: The nature of the appeal, it has been suggested by some of the parties present today, is in the nature of a new hearing. We would disagree with that submission.
HAYNE J: New hearing in the sense of rehearing de novo, start again?
MR FARR: Yes. Well that seems to be the submission that is being made by some of the States.
HAYNE J: That presents a difficulty, I suspect, presented by section 671B(2) of the Code. The Court of Appeal should hold a rehearing, that is hear the evidence afresh. What do you do in the face of section 671B(2) that:
in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.
MR FARR: Yes, I note your Honour’s comment and, in fact, we agree with that. It is not our submission that this is a rehearing de novo. It is, in our submission, given the interpretation, a rehearing of the merits of this matter, but without the requirement to identify error in the first place. It is an appeal whereby ‑ ‑ ‑
HAYNE J: That is a species of appeal that I think would be novel, would it not?
MR FARR: Yes.
HAYNE J: At least as presently understood. Now, that may be no sufficient answer, but at least novelty should be observed.
MR FARR: We agree. The nature of the appeal that is really now before the Court, given the interpretation, is one where the Court can accept new evidence with leave. So it is not a strict appeal, in that sense of the word. It is not an appeal de novo, because the wording of the section does simply not take us to that extent and is by no means suggested of that fact. We are left with the position that would be the classic position for a court of appeal, that being that this is an appeal where merit is relevant to the consideration of the court. The difficulty arises, in our submission, on the interpretation of the court below in determining that merit below is not a relevant consideration in enlivening the discretion of the court.
In our submission, that incongruity causes difficulties with the interpretation that has been made of that section by the Court of Appeal. However, if the interpretation is given that merit below is a relevant consideration to enliven the discretion, then it would be nothing remarkable and would follow the usual course of appeals of that nature to courts of criminal appeal or courts of appeal around the country. So there is that feature, in our submission, which augurs against the interpretation given to it by the Court of Appeal.
On that topic, can I also take your Honours to a passage which appears in the decision of Norbis v Norbis, which appears in our material, at page 519 where their Honours, Justice Mason as he then was, and Justice Deane, said:
It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised -
Then they referred to some authorities –
However, it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise. One very significant strand in the development of the law has been the judicial transformation of discretionary remedies into remedies which are granted or refused according to well‑settled principles . . . It has been a development which has promoted consistency in decision‑making and diminished the risks of arbitrary and capricious adjudication.
Now, with that in mind the submission that we make that the court should have given the interpretation to the word “unfettered” to mean there needs to be demonstration of error before the discretion of the court is enlivened sits comfortably with that pronouncement of the court. It is no more than the court developing rules or guidelines affecting the exercise of the section that is in the legislation. Because, in our submission, the wording itself is inadequate to import the interpretation that the Court of Appeal gave it in and of itself it is necessary to look at what Parliament intended when introducing the legislation to assist in interpreting that legislation, and that is necessary because of the ambiguity within the wording itself.
Now, as President McMurdo said in the course of her dissenting judgment in this matter, which appears at appeal book page 187, paragraph [267]:
This Court’s role is to give effect to the will of the legislature, but as expressed in the law -
She then referred to the decision that she was relying upon for that statement. Her Honour then went on in that paragraph to explain why in her opinion the wording of the section did not achieve that which the majority had found. Now, in our submission, her Honour was quite correct.
The word “unfettered” in and of itself does not clearly articulate that Parliament intended to overcome the long held principle that before a discretionary decision is varied error of the type identified in House v The King needs to be identified nor does the inclusion of the word “unfettered” clearly and unambiguously demonstrate Parliament’s intention that the Attorney‑General’s appeals against sentence are to be de novo hearings. Had it been so intended, it could easily have clarified that situation in the wording. If one then turns to the reading speeches, which have been referred to in the outlines of both the appellant and the respondent, to determine that intention, assistance is not gleaned.
FRENCH CJ: Can you insulate the characterisation of the appeal from the nature of the discretion that is conferred on the court?
MR FARR: In our submission, you can and you can do so by virtue of the fact that the wording – the use of the word “unfettered” has a degree of ambiguity such that it really does not assist.
BELL J: Is it not also important to consider the reasoning of Justice Jacobs in Griffiths v The Queen (1997) 137 CLR 293 at 326 and 327? His Honour considered, with respect to section 5D of the New South Wales provision which is in the same terms absent the word “unfettered”, that the purpose of the discretion conferred in the manner that it is under that provision in contrast to the provision governing the convicted person’s appeal in New South Wales under section 6(3) and in like terms in the Code under section 668E(3) was that in relation to an appeal by the Attorney‑General, the court had conferred on it, assuming the appeal succeeded, a discretion as to whether to vary the sentence or not in contrast to the position in the case of a convicted person successfully challenging the sentence and in such an instance requiring the court to intervene.
If that reasoning is right, the unfettered discretion introduced by the 1975 amendment may say something about the extent to which the court has regard to principles such as that on a Crown appeal the sentence should be at the lower end of the range, but it would not have the effect for which the majority in the Court of Appeal contended, rather turning on its head the reasoning of Justice Jacobs to which I have referred in paragraphs [132] and [133] which are on appeal book 155 and 156.
MR FARR: Thank you, your Honour. Yes, I would respectfully accept your Honour’s observations and adopt that in that regard.
HAYNE J: It is not unimportant to observe that Liekefett, which is the case that seems to have generated the amendment, was a case in which the Court of Appeal declined for discretionary reasons to resentence; see what is said [1973] Qd R 355, particularly at 366 letter E.
MR FARR: This is so.
HAYNE J: There is no need to go to it, but Liekefett was one where the Court of Appeal said you have to search for error but there are discretionary reasons not to resentence in this case, including particularly delay.
MR FARR: That is so. The Court of Appeal in that case adopted, at that time and the present time, a perfectly proper approach to the determination of that matter. It is obviously that case which has prompted the 1975 amendment. The 1975 amendment, when it was introduced, was accompanied by, of course, the reading speeches to explain the reasoning for the amendment. Those reading speeches, in our submission, however, do not clarify the issue to the extent that our learned friends suggest that it does or that the Court of Appeal held that it did. That is because of the ambiguity contained in the reading speeches, which we have identified in our written submissions to this Court.
FRENCH CJ: I wonder whether they do not tell us something about whether the unfettered discretion is intended to inform the character of the appeal. I have in mind what was said in the plurality judgment in Allesch v Maunz 203 CLR 172 at 180, paragraph 23, where the judgment discussed the:
difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate . . . legal, factual or discretionary error . . . At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.
That was then referring to provisions, for example, calling it provisional evidence, but one wonders whether that qualification might not be of some significance in looking at the role of that the unfettered discretion has to play in this case.
MR FARR: I dare say, with respect, your Honour, that it would, but the difficulty, in our submission, here is that it has, as I have said before, the degree of ambiguity that does not permit it to be taken to the extent that it has. If it had been the intention for it to be a hearing de novo or if it was the intention that this was to be a rehearing without the necessity for error, then one would have expected that that would have been made clear or, with respect, there had been ample opportunity since then to make that clear, particularly given the interpretation that has been given to the section since Melano back in the mid‑1980s, but none of that occurred.
One is then forced to refer to what appears to be the original intention at the time of the introduction of the word “unfettered” which refers to the intention of the legislature when the section was first introduced and, of course, the intention of the legislature when it was first introduced spoke of giving the same powers of appeal to the Attorney‑General as to the individual or similar powers; two different wordings are used in two paragraphs. Nevertheless, what was achieved at that time did not reflect that which was said to be the intention of Parliament and ‑ ‑ ‑
BELL J: Looking to the intention of Parliament at the time of the 1975 amendment, reflecting back to what was said to have been the intent in the introduction of a provision for an Attorney‑General appeal, that provision was introduced into the Queensland Code in 1939. Three years earlier the New South Wales Court of Criminal Appeal, dealing with a provision in identical words in Geddes 36 SR (NSW) 554, Sir Frederick Jordan considered the interpretation of section 5D of the Criminal Appeal Act (NSW) concluding that it was necessary to determine some error of principle in the approach of the primary judge before the discretion conferred was enlivened. So one looks at the circumstance that the Queensland Parliament took the New South Wales model in light of that decision and that may provide some indication of what was understood to be the nature of the appeal and the circumstances in which the exercise of the discretion was enlivened.
MR FARR: That may well be the case. In addition to that, of course, is the consistency between that which your Honour has just referred to and the observations of President McMurdo in paragraph [267] wherein her Honour spoke of the error that had been made for many years as to the interpretation of section 669A(1), an error which she has identified as being consistent with that which the New South Wales court held many years earlier.
It has been suggested in response to our submissions that our submissions mean that the word “unfettered” has no meaning and that of course is therefore a relevant consideration for any court in statutory interpretation. We would, however, disagree with that submission because in our submission the word “unfettered” has been identified by the Court of Appeal itself at the very least as allowing it the discretion to vary or impose another sentence that does not necessarily fall at the lower end of the available range for sentences of the particular type of offence in question at the time. So it, at the very least, would seem, on the Court’s own interpretation, to have had that function and that was a function which was accepted by all five members of the Queensland Court of Appeal.
Those are the additional submissions that we wish to make today in addition to those which are contained in our written submission regarding just the interpretation section. The remaining submissions, of course, are dependent upon the determination of that issue.
FRENCH CJ: Just going back for a moment to the approach taken by the Court of Appeal, they could not be accused of taking the approach that the appeal under 669A by the Attorney‑General is just another throw of the dice. There is some sort of threshold erected there, is there not?
MR FARR: There is.
FRENCH CJ: How would you characterise the threshold?
MR FARR: The Court of Appeal have identified the various matters which need to be taken into account, adopting what I could not argue to the contrary would be a proper judicial approach to the consideration of the relevant law and facts.
FRENCH CJ: I was not talking about their exercise of the discretion, it is entering upon – I mean, obviously, there are things they have to take into account under the Penalties and Sentences Act 1992, although that is not referred to, but it is really the level of consideration they give to the adequacy of the primary judge’s sentence and whether they have had any regard to the primary judge’s advantage.
MR FARR: They, with respect, do not give particular weight. They of course have acknowledged that consideration should be given to the decision of the primary judge but it is in no way said to influence or play any influential role in the determination of the Court of Appeal. Therein lies another of the problems because one is therefore confronted with the position where the primary judge, particularly after a trial, has had the opportunity of seeing the witnesses, hearing the evidence closely and forming an opinion as to what is the appropriate sentence in all of the particular circumstances of that case that on appeal the reasoning, the factual scenario and circumstances and the law that is applied all are accepted as being without error, yet notwithstanding those features, if the Court of Appeal forms the opinion that the sentence should have been something different and that effectively means something greater - it is not going to be less - then the greater sentence should be imposed.
It is, notwithstanding the attempts of the court to give it some due deference, it is still the position that the court is merely substituting one opinion for another when there is no identifiable reason for doing so.
BELL J: In that regard the notice of appeal, which is at appeal book page 115, sets out under the heading:
2. Grounds of Appeal
The sentence imposed is
manifestlyinadequate.
Then manifestly has been crossed out. So that when one sees that in the notice of appeal and goes to the concluding sentence of paragraph [133] in the majority’s reasons at appeal book page 156, it is quite clear that the majority is proceeding upon a basis that might, when one looks back at the history of decisions dealing with the section, including before its amendment by the 1975 amendment, suggest a radically different approach, by which I mean in neither McKeown or Beevers the Queensland decisions which Liekefett was said to overturn – Beevers [1942] St R Qd 230 and
McKeown [1940] St R Qd 202 – in each of those instances it does appear that the court looked to the judge’s reasons and did actually in each case conclude error. If one looks at the concluding sentence of paragraph [133] in the majority’s reasons in the instant case, there has been a move from that.
MR FARR: That is so, and consistent with the ultimate decision, the most that the Court of Appeal could say in this particular matter was that in their opinion the sentence was inadequate. It took it not beyond that point. Now, that is simply the demonstration of the submissions that we are making. Adequacy can vary from matter to matter, from person to person and from person considering it to person considering it. It does not necessarily mean that one person is right and another is wrong. It is purely an assessment of judgment. In this case the Court of Appeal have clearly substituted their judgment for that of the primary judge below without the necessity for the identification of error or mistake of the kind referred to in House v The King. With your Honours’ permission I will turn to the second of the areas of appeal today. It is said to be on the Kable principle. Can I take you really ‑ ‑ ‑
FRENCH CJ: Perhaps before you do, Mr Farr, it might assist us to hear from Mr Sofronoff first on the constructional side.
MR SOFRONOFF: Your Honours, we would begin by adverting to the obvious proposition that any right of appeal is a creature of statute and that one therefore has to construe the provision granting the right to see its nature and one ought not, in our respectful submission, approach that task with any a priori assumptions. With that as the foundation, could I take your Honours to four cases; Sperway in ‑ ‑ ‑
GUMMOW J: Sperway is not dealing with an appeal in a curial sense, is it?
MR SOFRONOFF: No, it is not, your Honour, but there ‑ ‑ ‑
GUMMOW J: It is a Builders Licensing Board or somebody.
MR SOFRONOFF: Quite, your Honour, but there are dicta by Justice Jacobs which I want to take the Court to which, in our respectful submission, will be helpful to your Honours. Secondly, to Da Costa v Cockburn Salvage & Trading, then to House v The King and finally to R v Osmond. Sperway, your Honours, is reported at135 CLR 616. If your Honours would go to the reasons of Justice Jacobs which begin at page 625. His Honour was concerned in that case to consider the history of what are called appeals by way of rehearing and his Honour looked at the history of that style of appeal emanating from the practice of the Chancery Courts. He dealt with that history at pages 625 and 626 and observed that in Chancery that rehearing, in the middle of page 626, was a hearing over again on the materials before the court below.
Over age page 627, at about point 3 his Honour observed that that being so, it being a rehearing, in truth a retrial on the materials below, it was open to the court to receive further materials. His Honour was concerned to answer the question whether, when an appeal was designated as one by way of rehearing, there was required to be a specific provision to allow fresh evidence or new evidence or whether that was contemplated by the expression rehearing and he found that it was for historical reasons. For the purposes of this case if your Honours would go to page 628, just below the quote his Honour observed:
Lastly it may be noted that on the hearing of an appeal to the Lords, no new matter could be proved but only such as was insisted on and proved at the hearing below . . .
It is clear that a rehearing was a fresh trial of the matter with procedural rules designed by the Court of Chancery to suit its particular methods of proof and adduction of evidence but with variation or developments thereof as justice required.
The reason I take your Honours to that is to emphasise the point that an appeal is a procedure which is entirely plastic in its nature ‑ ‑ ‑
GUMMOW J: Are you going to take us to Justice Mason at 620?
MR SOFRONOFF: Yes, I will come to that, your Honour – and it can be established by statute in any form, including at its most extreme an appeal by way of hearing de novo where actual evidence is called again. If your Honours would then go to the reasons of Justice Mason at pages 619 to 620. There his Honour too traced the nature of an appeal by way of rehearing to its origins in Chancery and distinguished it from other forms of appeals. At the foot of the page, two lines from the foot:
This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is “by trial over again on the evidence used in the Court below; but there is special power to receive further evidence”.
There are in addition, of course, special restrictions because the rehearing is on the evidence below on the written transcript and as a consequence, matters like the advantage of the trial judge in hearing the evidence and making judgments about credit have been developed. Rules about the extent to which new evidence can be led have been developed because of concepts of fairness, fairness to the other side, and the efficiency of dealing with matters by way of appeal from the perspective of the court itself. If I could take your Honours then to Da Costa v Cockburn Salvage and Trading (1970) 124 CLR 192 and to the reasons of Justice Windeyer at page 208. At the top of the page his Honour posed the issue for his determination at that part of his reasons:
There is a technical distinction between a simple right of appeal and an appeal expressed to be by way of re‑hearing.
His Honour then went on to examine it. Could I ask your Honours to look at the foot of the page.
KIEFEL J: We do not all have a copy of it because it was not on a list of authorities, so you might have to read it out for us, Mr Solicitor.
MR SOFRONOFF: Yes. I am sorry, your Honours. I will read out the relevant passage. It is at the foot of page 208 at about point 10:
The rule –
in the Supreme Court Rules –
referred to appears to be O 58 r 1 which provides that all appeals shall be “by way of re‑hearing”. This does not mean that the appeal is a complete re‑hearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred –
His Honour then cited cases –
Order 58 provides too that the Full Court shall have power to draw inferences of fact and to give any judgment and to make any order that ought to have been made. This is more or less standard form. It confers a wide power. But it does not I think curtail the recognition or respect that an appeal court should accord to the decision of a trial judge.
We cite that passage, your Honours, because it is open to the legislature and legislatures in the common law world have from time to time exercised that freedom to legislate for right of appeal which, in truth, involves a rehearing on appeal on the record below but where the court above must, to use Justice Windeyer’s words, the members must consider for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of proceedings. So the court must make up its own mind about the correct determination of matters of fact and on matters of law. If I could take your Honours then finally in that exegesis to ‑ ‑ ‑
GUMMOW J: Just a minute. At what time does it look at the law? The law may move.
MR SOFRONOFF: On an appeal by way of rehearing it looks at the law at the date of the appeal.
GUMMOW J: Now, would that be true with this procedure under the Code?
MR SOFRONOFF: Yes.
FRENCH CJ: What if the sentence had been increased, the maximum sentence?
MR SOFRONOFF: I am sorry, your Honour?
FRENCH CJ: What if the maximum sentence available had been increased? I mean, that cannot be a global proposition ‑ ‑ ‑
MR SOFRONOFF: No, it cannot be, your Honour, for the reason your Honour just mentioned. I would have to think about that, your Honour, in answer to your Honour’s question.
GUMMOW J: There are two variables in all of this. One is the time at which you look at the law. The other is the form of the evidence.
MR SOFRONOFF: Yes.
BELL J: There is also the consideration that we are here concerned with an appeal from a discretionary determination by the primary judge, so that there are particular considerations, those being the considerations analysed by Justice Isaacs in Whittaker v The King (1928) 41 CLR 230 beginning at 241 and continuing. Really, going to passages in Sperway and the like does not address the force of the considerations raised by his Honour in the detailed discussion contained there.
MR SOFRONOFF: Your Honour is quite right, with respect, but the reason I went to those, and then I go to House v The King which deals with the problem of discretion, is that those cases demonstrate that the nature of an appeal can vary depending upon the language of the provision and it can connote, if the language were apt, a complete liberty upon the appellate court to substitute its own decision without the need to seek the error, just that the judges on the court are of a different view. We then come to the problem of discretion.
In the cases that have dealt with the nature of an appeal by way of rehearing it has been accepted that notwithstanding that the appeal is by way of rehearing because it is on a rehearing on the record where credit is in issue there are limitations. Your Honours are familiar with that. Secondly, where discretion is in issue, where an exercise of discretion is in issue, there is a problem raised because reasonable minds can differ within a range of possibilities.
If it is true, as we submit it is, that the legislature can mould the nature of the appeal to add or subtract features that might otherwise exist then, in our respectful submission, the legislature can also provide, if it uses that language to do so, that even in the case of an appeal against an exercise of discretion, the way that appellate courts usually face the problem by according the judge at first instance, recognising the latitude that must be given to the exercise of discretion, the legislature can instead negate that principle of legal practice and enable the appellate court simply to consider the matter afresh, albeit on the written record.
I go to House v The King (1936) 55 CLR 499 in order to show from the fons et origo why we submit that that is so. If I can take your Honours to page 504, after concluding that there is an appeal as of right, halfway down the second paragraph on page 504 their Honours said:
The appeal is a full one on law and fact –
and then they cited cases –
But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made ‑ ‑ ‑
In our respectful submission, that is an undoubted feature of the ordinary appeal by way of rehearing and it is open to a legislature to blue pencil that as a feature of an appeal and to empower the Court of Appeal to instead vary the order, to use the language of the court in House, if the judges composing the Appellate Court consider that if they had been in the position of the primary judge they would have taken a different course. That is, in our submission, what this provision does.
GUMMOW J: Looking at page 505, the Court at about point 6 looks to the English decisions in the Court of Criminal Appeal.
MR SOFRONOFF: Yes.
GUMMOW J: Do you say that section 669A(1) is at odds with that?
MR SOFRONOFF: Yes.
GUMMOW J: To what extent is it at odds with that?
MR SOFRONOFF: To the extent that the Court of Appeal concluded in appeal book page 160 at paragraph [147] – their Honours in the first sentence of paragraph [147] endorsed the approach explained by Chief Justice Andrews, and that approach your Honours will see at page 153 in paragraph [130].
BELL J: What paragraph again?
MR SOFRONOFF: Paragraph [130], your Honour, page 153.
HAYNE J: What is meant by the proposition:
The discretion to vary it rests upon disagreement as a matter of judgment -
What is the content of that expression?
MR SOFRONOFF: The content of it, your Honour, is that the judges constituting the Court of Appeal must apply themselves to the task of sentencing upon the materials below. If the judges, having entertained that task pursuant to previous authority and statute, as a matter of their respective judgment come to a different view, then they are obliged to give effect to their own view.
HAYNE J: Obliged? May, in its unfettered discretion, vary? May, but need not.
MR SOFRONOFF: Your Honour is quite right, may but need not, because the “may” can connote, for example, matters such as that the Crown below did not advocate the sentence now being advocated in circumstances where that should impinge upon the Attorney‑General’s right of appeal, or there might be delay, or there might be other factors, or there might be a whole host of discretionary factors, your Honour. Your Honour is quite right, of course.
BELL J: It is not entirely clear that the court took that view, when one looks to the concluding sentence in paragraph [133] and read that with [132]. It is certainly open to the view that the court was approaching the provision on the basis that if it concluded that another sentence was proper, it was required to act on that.
MR SOFRONOFF: No, your Honour. In our respectful submission, what their Honours meant in paragraph [133] was the court would be duty bound to exercise the jurisdiction. Could I just explain that? Your Honours will recall that in Melano there was a dictum that there was a discretion to vary or not to vary ‑ ‑ ‑
BELL J: Yes.
MR SOFRONOFF: ‑ ‑ ‑ and their Honours were critical of that if that meant that the court was free to decline jurisdiction, in effect, and what ‑ ‑ ‑
BELL J: Melano was consistent with Justice Jacobs in Griffiths, that the discretion conferred was a discretion notwithstanding successful challenge not to intervene and vary the sentence and that is a view that is rejected in the reasons of the plurality in this instance.
MR SOFRONOFF: In our respectful submission, not, your Honour, in that although the judges might be in substantial disagreement with the sentence below, there might be powerful other factors which affect the discretion. So that in answering the ultimate question a sentence which ‑ ‑ ‑
HAYNE J: May vary and impose such sentences as to the court seems proper.
MR SOFRONOFF: It might be improper to impose the different sentence because of such discretionary considerations.
BELL J: In such an instance, the court would not have come to a view that another sentence was proper.
MR SOFRONOFF: That is right. Although the court would come to the view that at first instance a higher sentence might have been justified but for reasons which obtain it would not be proper now to impose such a sentence.
BELL J: It is by no means clear from paragraph [133] that that is what is being said.
MR SOFRONOFF: Could I ask your Honour - we would refer your Honour to the second sentence of that:
only where that decision is consistent with the proper exercise of the jurisdiction -
The proper exercise of the jurisdiction would, of course, involve taking a look at other discretionary factors, apart from the size of the penalty.
BELL J: The Court speaks in terms of varying the sentence where that sentence is not “such a sentence as seems proper to the Court”. You may be right, Mr Solicitor, but it is not clear that one is factoring in the sorts of discretionary considerations which conventionally admit of a Crown appeal being dismissed notwithstanding error being established in that passage.
MR SOFRONOFF: Your Honour, in our submission the Court of Appeal appreciated that the exercise of discretion did not involve merely the question what size sentence but also whether to vary for other reasons becomes apparent from paragraphs [147] and [148].
GUMMOW J: There is a certain amount of confusion of thought in 133, maybe. Section 669 performs a number of functions. Firstly, it creates a new species of appeal. Secondly, it confers jurisdiction in the court to exercise that new species of appeal and thirdly, it supplies the content of the appeal, the relevant norms that constitute the appeal. To slip from jurisdiction to discretion is not to perceive clearly, I think.
FRENCH CJ: You can have a duty to exercise a jurisdiction but that does not mean you have a duty to exercise a power or discretion within that jurisdiction.
MR SOFRONOFF: Quite, your Honour, and in our submission, the Court of Appeal was cognisant of that and the reason why [133] is expressed as it is is because their Honours were concerned with what the previous court had said in Melano which is quoted in paragraph [131].
FRENCH CJ: How do you characterise the threshold which the Court of Criminal Appeal erects for determining whether it is going to vary the sentence? Is it mere inadequacy and if ‑ ‑ ‑
MR SOFRONOFF: It might be excessiveness, your Honour.
FRENCH CJ: There has to be some principal basis. This is not just another throw of the dice.
MR SOFRONOFF: It is required to undertake the task itself in determining what is a proper sentence that ought to be imposed.
FRENCH CJ: Disregarding the trial judge’s advantage?
MR SOFRONOFF: No. If there are advantages – there might not be in every case. Many, we would submit most, sentence appeals are determined upon materials which give no advantage to the trial judge, particularly if a guilty plea is concerned where much of what the trial judge takes into account – the sentencing judge takes into account – is based upon submissions from the Bar table or from written materials or from depositions.
HAYNE J: But the construction for which you contend could be expressed, I think, as being “By application by the Attorney the Court of Appeal may, in any case, resentence the prisoner”. It is as bald as that, I think, Mr Solicitor, is it not?
MR SOFRONOFF: Yes, it is.
HAYNE J: If that is so, let us know it.
MR SOFRONOFF: It may in any case resentence the prisoner and the word “may” brings into account discretionary factors outside a disagreement in relation to the extent of the penalty.
CRENNAN J: It can take its own view that a sentence is excessive without having to have regard to whether it is manifestly excessive?
MR SOFRONOFF: Yes, because the term “manifestly excessive” as we apprehend it, connotes a disparity of such a size that that implies a hidden error.
CRENNAN J: Error.
MR SOFRONOFF: Whereas here the court is to come to its own understanding and to perform the task itself, subject to the fact that it is exercising a discretion which it might decline to do for reasons found in the proper exercise of judicial discretion.
FRENCH CJ: What principle of restraint informs the observation at paragraph [148] that:
the right of appeal conferred by s 669A should be exercised sparingly by the Attorney‑General –
which does not inform the approach to be taken by the Court of Criminal Appeal itself?
MR SOFRONOFF: What principle informs that?
FRENCH CJ: Yes.
MR SOFRONOFF: It is a recognition of an expectation that because the Attorney‑General is treated differently from citizens in terms of being given a different and more ample right of appeal that that inequality is justified by the office held by the Attorney‑General and the duties attaching to that office and that one of the features of that office is that unlike a prisoner who is free to appeal on a whim or a hope, the Attorney‑General is expected to act as the first law officer ought act and not merely have another go but bring an appeal for good reason. The good reason might be a firm view that the sentence below is wrong or as the case might be a firm view that although the sentence below is right, according to precedent, the precedent is wrong and the Court of Appeal ought to have a look at the range, for example.
HEYDON J: That should - that is a duty of imperfect obligation, is it?
MR SOFRONOFF: Yes.
BELL J: If the discretion has the breadth that you say flows from the amendment introducing the word “unfettered”, what constraints are there on the Court of Criminal Appeal, and on this Court, on a review of the exercise by that court of an unfettered discretion to impose a sentence? It is a matter that I think again was discussed by Justice Isaacs in Whittaker where his Honour pointed out that the formulation before the introduction of the word “unfettered” in the equivalent provision in section 5D, if read literally, would produce a result that was absurd, and for that reason, was to be understood ‑ ‑ ‑
MR SOFRONOFF: An appeal to this Court by either party would require error to be demonstrated.
BELL J: But if the Court of Criminal Appeal is exercising an unfettered discretion, if it has the liberality that it seems to me you attribute to it ‑ ‑ ‑
MR SOFRONOFF: But if it has done so, then there is no appeal. It is only if it has failed to do so that there would be an appeal to this Court. But if we demonstrate error on the part of the Court of Appeal, for example, if the Attorney appeals, or the prisoner, then this Court’s function would be to make the order that the Court of Appeal ought to have made. The first step in any appeal from the decision of the Court of Appeal under this provision would be to demonstrate that it erred.
BELL J: I am merely inquiring how one might demonstrate that if the discretion is an unfettered one.
MR SOFRONOFF: House v The King, because the trial judge’s discretion is also unfettered to the same degree, fettered only by judicial constraints, as is that of the Court of Appeal.
BELL J: It is a question of what is embraced by the word “unfettered”, given the legislative history, which it seems was only intended to give effect to the right of appeal conferred on the Attorney‑General that had been intended in 1939, when the provision was introduced, against a background which included the way that provision had been explained by Sir Frederick Jordan in Geddes.
MR SOFRONOFF: The term “unfettered”, in my submission, is calculated to ensure that the Court of Appeal has the same discretion as the original sentencing judge.
BELL J: If that be right, what is wrong with the analysis that says all that is being done by the framing of the provision in the way that it is, is to confer on the Court of Criminal Appeal the right to vary this sentence instead of remitting it to the sentencing Court, to resentence in light of the error that has been identified in the Court of Criminal Appeal.
MR SOFRONOFF: We know from the peculiar case history and legislative history, in our submission, that what the legislature intended, or at least what the proponents of the provision intended, was to – your Honour is shaking your head ‑ ‑ ‑
FRENCH CJ: They wanted the original intention.
MR SOFRONOFF: I am not withdrawing from joining on the true issue, which is whether the words are apt to deal with it, but we would submit that it is plain beyond doubt that what they intended to do was to give the same discretion to the Court of Appeal as a trial judge had. Whether they succeeded is what your Honours will decide.
GUMMOW J: Well, coming to that question, assume you are wrong in the construction Justice Hayne put to you, which you accepted, but giving a lot of content to the word “may”, assuming you are wrong about that, what would this Court then do with this particular appeal? Would we send it back? We would have to, would we not?
MR SOFRONOFF: Yes. If I am wrong on the construction that we advocate, then the Court of Appeal has not yet undertaken the task in the traditional House v The King way.
GUMMOW J: That sounds right.
MR SOFRONOFF: Yes, quite.
HEYDON J: Mr Solicitor, what is the section of what Act in Queensland that permits examination of the second reading speech?
MR SOFRONOFF: It is in the Acts Interpretation Act, your Honour, but we will find the provision over lunch and give it to you.
HEYDON J: We may not get to lunch.
MR SOFRONOFF: No. Well, I might not, but others no doubt will.
HEYDON J: They may not either.
MR SOFRONOFF: In any event, we will find it for your Honour, whenever that may be.
HEYDON J: I think it may be – no. Anyway, thank you, I can work it out from the Act.
MR SOFRONOFF: Yes, we will find it for your Honours and inform you.
HAYNE J: Section 14B, I suspect.
CRENNAN J: Yes, it looks like 14B.
GUMMOW J: Section 14B by the look of it.
MR SOFRONOFF: I do not have the Act in front of me, your Honours. Your Honour the Chief Justice referred earlier this morning to Allesch v Maunz 203 CLR 172 and to the passage at the foot of page 180 where four of your Honours said:
At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.
That is, in our respectful submission, a dictum which is indicative of the basic proposition that we seek to advance, namely, that a right of appeal may be a right that is granted which gives to the court powers upon the appeal to do things which are not necessarily contemplated by the term “appeal” or “appeal by way of rehearing” or “appeal by way of appeal de novo”, that is to say, this is an appeal sui generis and it is an appeal against the exercise of a discretion where the requirement in House v The King that it is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge they would have taken a different course. That usual requirement is deleted and the insertion of the word “unfettered” was calculated to and, in our submission, apt to effect that deletion.
HAYNE J: One of the authorities mentioned in Allesch v Maunz also in Coal & Allied 203 CLR 194 at 202 to 203 is Brideson [No 2] – Re Coldham; Ex parte Brideson [No 2] 170 CLR 267. It is perhaps of interest to notice that Brideson hinged about the fact that the appeal in that case had the character it was identified as having on account of the power in the appellate body to take fresh evidence. Contrast that with the position of the Court of Appeal here where, under the provision earlier mentioned of 671B(2), sentences may not be increased on account of fresh evidence.
MR SOFRONOFF: Yes, but that is explicable upon the footing that the concept of double jeopardy which, in our respectful submission, can be vague in its content at the extreme but, nevertheless, legislators, as well as courts are sensitive to its centrality. That concept, in our submission, is manifested by, on the one hand, giving the Attorney‑General this right of appeal but on the other hand not permitting the Attorney‑General to lead fresh evidence in order to seek to increase the appeal. So he does not have to that extent a second go.
As we submitted below and as we submit here, the Attorney‑General might in an unusual case appeal on the footing that the sentence was too harsh in that there might be a self‑represented prisoner who is not, has not or is not able to appeal or has not appealed where the Attorney‑General is not prepared to countenance the sentence that has been imposed. In Queensland, and I am sure in other States, there have been occasions when – at least in the summary jurisdiction – magistrates, despite repeated overturning of sentences on appeal, have persisted in imposing overly harsh sentences. One can imagine that if a person was sentenced and was not, for some reason financial or otherwise, able to launch an appeal, the Attorney‑General acting properly might.
BELL J: In such a case it is rather likely that the sentence below would have some error.
MR SOFRONOFF: That is true, your Honour, that is true. Your Honours, that is all I wanted to say in relation to the matter of construction.
FRENCH CJ: We might hear from Mr Farr in reply on construction.
MR FARR: There is just one matter that I wish to refer you to in reply and that is in Whittaker v The King at page 236 in the judgment of Justice Isaacs. About halfway down the page his Honour said:
It is, as will appear later, essential to remember throughout that the jurisdiction of the Court of Criminal Appeal under sec 5D, though discretionary, is an appellate power to control an order that is itself discretionary. That is the pivot on which one great question in this case turns, and as to the true nature of appellate discretionary power and its distinction from original discretionary power a superficial consideration is apt to mislead.
GUMMOW J: Is there any consideration in Whittaker of what would have been the content of an unfettered discretion? I know they said there was not one, but what would it have been?
MR FARR: I do not believe it is referred to, your Honour. The other point that ‑ ‑ ‑
HAYNE J: Chief Justice Knox and Justice Powers at page 235 at about line 12 or 15 simply refer to the true view as their Honours thought it was “that unlimited judicial discretion is thereby conferred” but beyond that it is not amplified, I think.
BELL J: Justice Isaacs at 242 at the bottom of the page in the final paragraph noted:
Without some tacit limitation it would empower the Court to inflict a life sentence to stealing a loaf of bread -
It was that line of reasoning that led his Honour to consider some limitation might be read into the notion.
MR FARR: Thank you, your Honour. In so far as that limitation is concerned the question was asked earlier, just what is the threshold then in this matter given the interpretation that the section has been given? But, with respect, the answer to that question is that it is unknown because the threshold is so fluid given this current interpretation that one simply cannot determine what it is. Good reason for that interpretation to be incorrect. Those are the only additional matters that we wish to refer to in reply.
FRENCH CJ: Yes, thank you, Mr Farr. The Court will adjourn briefly to consider what course it should take.
AT 11.34 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.50 AM:
FRENCH CJ: Thank you. The Court will consider its decision on the arguments thus far presented and will list the matter at a future date.
The Court will now adjourn until 10.15 tomorrow morning.
AT 11.51 AM THE MATTER WAS ADJOURNED
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