Law v The Queen

[1996] HCATrans 367

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 1996

B e t w e e n -

HECTOR RALPH LAW

Applicant

and

THE QUEEN and ATTORNEY‑GENERAL OF QUEENSLAND

Respondents

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 11.17 AM

Copyright in the High Court of Australia

MR R.V. HANSON, QC:   If the Court pleases, I appear for the applicant.  (instructed by the Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MR M.C. CHOWDHURY, for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

GAUDRON J:   Thank you.  Yes, Mr Hanson?

MR HANSON:   Your Honours, the applicant has been sentenced for a series of offences which occurred between 27 and 33 years ago, something that will possibly attract the business of the Court more and more frequently.  The case raises, in my submission, the question whether the staleness of the offence, pure delay without more, can be a mitigating factor so long as the offender is not shown to be responsible for the delay.  If I could put to your Honours an extreme case to illustrate the point.  If you would consider a man of, say, 80, is to be sentenced for an offence he committed when he was 20, assume he has had no part in the delay, for example, by absconding, is the pure antiquity of the offence alone a mitigating factor?  The submission is that it is.

GAUDRON J:   Do you have authority to support that?

MR HANSON:   The cases I have given you in my outline, Braham and Todd, do speak in those terms of the antiquity and the staleness of the charge racked up with the use of the expression “fairness”, as if that mere passage of time may, itself, be unfair to the person being sentenced.

GAUDRON J:   The notion of delay and presumed unfairness in a trial has gone now, has it not?  It is no longer accepted as relevant in that regard.  Why should it be relevant to sentencing?

MR HANSON:   Well, is your Honour saying that Todd should be disregarded and all of the other cases in the Federal Court:  Braham, Shore, but none of that is any longer any good law.  I would submit not, your Honour.  The extreme example I pose must surely mean a man in those circumstances must be entitled to some discount when he comes before the Court for sentence.  Without proving‑ ‑ ‑

GAUDRON J:   Surely - I mean, you must advance some reason for that statement, and you must advance it by reference to established sentencing principle.  What aspect of sentencing principle can you point to in support of your argument?

MR HANSON:   The principle that the imposition of sentence should be prompt - if the court, of course, is in a position to do so, justice should be fairly swiftly administered in the criminal jurisdiction if the court is able to do so.  If, for whatever reason it is unable to do so, and time passes and the passage of time becomes very long, the punishment aspect of the sentencing discretion then assumes less and less importance as time passes.

GAUDRON J:   Why?

MR HANSON:   Well, what if my 80-year-old man had committed an armed hold-up or a rape or something that would deserve 10 years when he was 20, should he still receive his 10 years?

GAUDRON J:   He gets the advantage, as the applicant in this case did, of those events that have supervened, which indicate that he is unlikely to reoffend.

MR HANSON:   Your Honour, with respect, that is another principle.

GAUDRON J:   Yes, I know, and there is a proper sentencing basis for that attitude or for that approach.

MR HANSON:   That was recognised below and, of course, I have no complaint about that.  That is one mitigating factor, but surely the pure antiquity of the crime alone must be a further mitigating factor.

KIRBY J:   32½ years.

McHUGH J:   Why?  Supposing the offence was 25 years old, but in the meantime the offender had led a life of crime.  Should he be treated any differently on the basis of pure antiquity?

MR HANSON:   In those circumstances, your Honour, of course his antecedents, his character, would be relevant and the discount would then lose its force in consideration of the man’s character.

KIRBY J:   Do you know of another case where the time involved is of the order of 32½ years?  It is an awful long time.

MR HANSON:   Glennon, I think, your Honour, might have been close to 30 years. 

KIRBY J:   In some jurisdictions they have statutes of limitations against criminal prosecution.  Presumably, there is none in Queensland.  Was any application made on the basis to stay the proceeding on the basis that it was stale?

MR HANSON:   I do not think so, your Honour.  I do not believe so.

McHUGH J:   Mr Hanson, your real problem in this case is in trying to get special leave you are putting up a straw man to knock down because this case turned on its own facts.  The Court of Criminal Appeal thought that there could be general notions of fairness which would involve litigation and they held on the particular facts of this case there was nothing.

MR HANSON:   In doing so, your Honour, they have said that he needed to prove something.  They have imposed on him an onus to prove perhaps some mental anguish during the intervening years.

KIRBY J:   Where do they do that?

MR HANSON:   I think that is at the top of page 56, your Honour.  The discussion starts on the previous page but at the top of page 56, it says:

The burden of proving that this delay should be taken into account in mitigation was upon the respondent.

They go on in the next paragraph to say, at about line 26:

We can see nothing which justifies, on the ground of fairness to the respondent, mitigation of his sentence -

et cetera.

McHUGH J:   That is only a burden of proof.  That passage is really only in terms of an evidentiary matters, surely, is it not?

GAUDRON J:   Perhaps it is a persuasive onus only.  It is an odd sentence, really, in that context.  But nonetheless, the language may be difficult, but what sentencing principle requires the approach for which you contend?

MR HANSON:   Justice should be swift in the criminal jurisdiction, your Honour.  Retribution should be swift.  Looking at all of the sentencing components, there is general deterrence, personal deterrence and punishment.

GAUDRON J:   It seems very like saying, well, if you get away with it for a quarter of a century then you should get away with it for a bit longer, or you should not have these matters visited upon you, particularly in a context such as this where it is all but notorious that delays in complaint are very often associated with the nature of the crime involved.

HIS HONOUR:   Yes, I will accept that.

McHUGH J:   But your principle would be against public appeal principle. Surely there is a public policy, not much exercised, that people should give themselves up and confess to their crimes earlier.  The longer that somebody stayed away from confessing, the better off he or she would be.

HIS HONOUR:   It may not be a large discount, your Honour.

KIRBY J:   But it is also against public policy that people who are different 32½ years later than they were 32½ years earlier should be dealt with without proper consideration to the time interval.  It seems to me that 32½ years is a terribly long time.

McHUGH J:   But that is the very point.  That is one of the exceptions that the court recognised, as they did on page 55, that:

The second is where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.

MR HANSON:   Well, he failed that test because there was an intervening offence.

McHUGH J:   He failed that test, yes.

MR HANSON:   But what is a court to do with my 80-year-old man, who would have drawn a 10-year sentence when he was 20?  What is the court to do?

McHUGH J:   Well, ordinarily he would probably fall within that second exception.  You would say, well, he has lived a good life since, he has become rehabilitated, “Go without day,” as the old common law judges used to say.

MR HANSON:   And I accept, of course, he gets a discount for his age; that is another mitigating factor.

KIRBY J:   There are the passages in the English authorities that are referred to concerning the nature of this sort of offence - family solidarity, shame - and those are factors which explain the delay, and the question is one of balancing those factors, and you have really got to be able to point to some important error of principle and, perhaps, the frequency of cases of this kind, or the fact that this is going to be a more common problem than it was in the past.

MR HANSON:   Yes.  You will see from the outline, I have accepted that he is in part responsible for the delay, because of the circumstances.  It is not only a member of the family, but there were threats to the boy at the time of the commission of the offence.  Obviously he must accept responsibility for the boy keeping quiet for a certain period of time, but it was not until the boy was 28 that he first complained to the police.  So, I would contend that he is not responsible for the whole of the delay.

KIRBY J:   Did the Court of Appeal take adequately into account the fact that there was a complaint by the victim at an earlier stage and at that time that could have been brought before a court but was not?  Because that would have been a more timely response to the complaints.

MR HANSON:   Well, seem not to have, your Honour.  That is where the discussion commences that I referred your Honours to.  Page 55, at about line 39, the court takes up that topic:

The facts here would come within the first case only if the delay from 1983 when the complainant made his complaint to the police and told the respondent he had done so, is likely to have caused the respondent to be left in a state of apprehension until his arrest in mid‑1994.

It then goes on to say:

It does not appear why in 1983, when the police spoke to the respondent about these offences, they did not then charge him -

In fact, there is a slight factual error there; the police did not speak to him.  You will see that at pages 13 and 28 of the record.  The police did not speak to him, but the complainant told him he had complained to the police and said he would see him in gaol for what he had done, so he was aware the police had been informed. 

The discussion goes on then, at the foot of the page and to the top of the page.  They do not seem to have given him any discount because there was a burden imposed upon him to prove why he should have it and he had not discharged it.  So, there was that period - of course, I accept a substantial period of delay, for which the applicant must be responsible.  There is that period for which he does not seem to have had any consideration.  Those are my submissions, your Honours.

GAUDRON J:   Yes, thank you, Mr Hanson.  We need not trouble you, Mr Byrne. 

The Court is of the view that no error of sentencing principle is to be discerned in the approach of the Court of Appeal in the somewhat unusual circumstances of this case.  The appropriate order is that the application for extension of time be refused, the matter having been considered on its merits nonetheless.  The order will be that the application for an extension of time is refused.

AT 11.30 AM THE MATTER WAS CONCLUDED