Leach v The Queen
[2006] HCATrans 577
[2006] HCATrans 577
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D10 of 2006
B e t w e e n -
MARTIN LEACH
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 25 OCTOBER 2006, AT 2.28 PM
Copyright in the High Court of Australia
MR I.R.L. FRECKELTON: May it please the Court, I appear with my learned junior, MR R.R. GOLDFLAM, for the appellant. (instructed by Legal Aid Commission of the Northern Territory)
MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MR R.J. COATES, for the respondent. (instructed by Director of Public Prosecutions (Northern Territory))
GLEESON CJ: Yes, Mr Freckelton.
MR FRECKELTON: Thank you, your Honour. This appeal raises two fundamental questions in terms of the interpretation of legislation applying in the Northern Territory with a close parallel to legislation applying in New South Wales in respect of the sentencing of persons to life imprisonment with the result that such persons will not be released until they pass away. I propose to describe very briefly, because it is adverted to in the written submissions, the history of the legislative scheme - by that I mean only for a couple of minutes – and then go to the essence of both of the arguments.
As the Court is aware, Mr Leach was sentenced on 16 May 1984 on two counts of murder to life imprisonment. It was two murders that he committed on 20 June 1983.
GLEESON CJ: How long had he been out of gaol when he committed those offences?
MR FRECKELTON: It was in the order of two years.
GLEESON CJ: Was he on parole?
MR FRECKELTON: No, he was not. Going to the legislative scheme applying at the time, under section 5 of the Criminal Law Consolidation Act a person in the Northern Territory convicted of murder had to be sentenced to life imprisonment with hard labour. Under section 4(3) of the Parole of Prisoners Act 1979 in force at the time, when a person was sentenced to imprisonment for life, it was not open for a non‑parole period to be imposed. That provision confirmed what had pre‑existed under section 4 of the Parole of Prisoners Ordinance 1971. Section 164 of the Criminal Code took over from section 5 of the Criminal Law Consolidation Act on 1 July 1984, namely, just after the sentencing. It had similar effect.
As from 1991, the Executive in the Northern Territory adopted a policy that prisoners serving a sentence of imprisonment for life for murder would be considered for release as a matter of clemency after serving 20 years, and then if they were not successful they would be reviewed every three years. That laid the groundwork for the statutory reform that followed.
Section 4 of the Parole of Prisoners Act 1979 was repealed in due course by section 53 of the Sentencing Act 1995 which came into effect on 1 July 1996. That enabled the setting of a non‑parole period for prisoners sentenced to life imprisonment for offences other than murder. The Executive practice that had evolved from 1991 was given in essence statutory effect as from 11 February 2004 by virtue of the Sentencing (Crime of Murder) and Parole Reform Act 2003, and it is that legislation which brings Mr Leach before this Court.
The legislation under section 19 is difficult and problematic. It has been so described in its close cousin in New South Wales. Principally this is because it requires a difficult evaluation, a comparison of matters which are not readily comparable. Section 19(5) is readily to be found in the parties’ bundle of authorities which is under tab 1. As the Court will be conscious, this entitles the Supreme Court in respect of a person who has previously been sentenced to life imprisonment for murder on application of the Director of Public Prosecutions to decline to fix a non‑parole period at all, with the result that the person remains in gaol forever, if satisfied of an equation ‑ ‑ ‑
GLEESON CJ: Not forever. …..life means life.
MR FRECKELTON: Yes, unless there is some exercise of clemency again from the Executive. The equation is the essence of what is placed before this Court because the refusal to set a non‑parole period is contingent upon the Supreme Court being satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in four things – retribution, punishment, protection and deterrence – can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.
The appellant makes two points about this, and that is what brings us to this Court. The first is that section 19(5) is manifestly discretionary. That distinguishes it from section 61 of the comparable legislation in New South Wales, although ultimately the courts in New South Wales have viewed the effect of section 61 as to all intents and purposes the same as section 19(5). What this means is that the Court does have a potent residual discretion in terms of sentencing to exercise after it has engaged in the equation evaluation, if I can use that shorthand for it.
HAYNE J: If you start the inquiry at 19(5), that may not be an apt description of it. You start it, surely, at 19(1)(a). Does not 19(1) chart the entire universe of what the Supreme Court is to do?
MR FRECKELTON: Yes, it enables ‑ ‑ ‑
HAYNE J: So what is this potent discretion of which you spoke?
MR FRECKELTON: What section 19(1)(a) enables the Supreme Court to do is of course to revoke a non‑parole period fixed by section 18 and to fix a non‑parole period within certain parameters or decline to fix one within subsection (5). I do not disagree with what your Honour is saying at all. But the point that we make, your Honour, is this, that if it proceeds down the road of, to put it another way, section 19(1)(a)(ii), in accordance with section 19(5), its task is the equation evaluation and then, as a second step, reflection on the residual sentencing discretions which otherwise exist in statutory form in the Northern Territory under section 5 of the sentencing legislation.
HAYNE J: Well, the point I am putting to you is that if you start at 19(5), you get one set of results, so you say, whereas if you start at 19(1) you discover that there is a universe. The universe has three possible outcomes: working backwards, dismiss the application, the consequence of which is the statute engages, and the statutory terms are thus fixed effectively – 20 or 25.
MR FRECKELTON: Yes.
HAYNE J: Or it is one or two. Where is this residue of discretion hooked into the Act?
MR FRECKELTON: In this way, your Honour. If the Court determines not to do 19(1)(a)(i), it decides not to do 19(1)(b), but it goes through the process of considering whether it should do 19(1)(a)(ii), namely, “refuse to fix a non‑parole period”, it has two tasks to undertake. The first is to reflect upon whether the level of culpability in the commission of the offences in this case is so extreme that the community interest in retribution, punishment, protection and deterrence can only be met by imprisonment for the term of the natural life without the possibility of parole, and then to consider whether the sentencing discretions, the residual sentencing discretions, persuade it that it ought not in any case to refuse to fix a non‑parole period in accordance with subsection (5).
Now, I say this to the Court because the New South Wales legislation first of all has been considered in a series of cases and that has been the conclusion reached there, and I will take the Court to the comparability between the provisions in due course; and secondly, that that was the approach adopted, it would appear, by the Chief Justice at first instance in this matter, and certainly it was the approach that was embraced by all three judges in the Northern Territory Court of Criminal Appeal; in other words, a two‑step process in respect of the refusal to fix a non‑parole period.
GLEESON CJ: I was going to ask you, how does this first point you are making relate to what you say is an error on the part of the primary judge, because it is with the reasons of the primary judge that we are primarily concerned.
MR FRECKELTON: Yes. Could I take the Court, in answer to that question, to the decision of the primary judge? Perhaps it might be most useful to do it via the parties’ bundle of authorities, and that is the decision to be found under tab 4. To answer your Honour’s question, I am going to omit all irrelevant parts for these purposes of what is a lengthy decision. His Honour the Chief Justice commenced to discuss the sentencing principles apposite at paragraph 27 of the judgment which is page 197 of the Federal Law Report version. Paragraph 27 and paragraph 28 are fundamental to the case that we put before this Court. We say that they are, however, not entirely clear. His Honour said this:
Although the respondent has previously been sentenced, on an application by the Director pursuant to s 19 of the Act, essentially the court is required to undertake a sentencing exercise. Unless excluded by the Act, the well settled principles and the provisions of the Sentencing Act governing the exercise of the sentencing discretion apply. These include the principles enunciated by the High Court in R v Olbrich (1999) 199 CLR 270.
I interpolate, at this stage his Honour speaks about the Storey, Olbrich question of proof of matters adverse to the interests of a convicted person. Significantly, he says that these include such principles. So I quote again:
The Court may take into account facts adverse to the interest of the respondent only if those facts are agreed or have been proved beyond reasonable doubt. If the respondent seeks to establish facts in mitigation, the respondent bears the burden of establishing those facts on the balance of probabilities.
I interpolate again that is entirely unexceptionable and that represents what this Court said in Olbrich applying Storey. Paragraph 28, his Honour says:
Those sentencing principles –
We assume, I interpolate, that his Honour there is referring to sentencing principles generally, although we concede it is not entirely clear -
must be applied when considering the objective or subjective factors affecting the relative seriousness of the offence as required by s 19(4) of the Act. Similarly, when addressing s 19(5), the usual principles will apply to the determination of the facts relevant to an assessment of the level of culpability of the respondent in the commission of the offence and to the determination of the underlying facts such as the likelihood of re‑offending and the progress or otherwise towards rehabilitation.
HEYDON J: Just pausing there, your contention is that the Chief Justice failed to take into account some matter. Is that correct?
MR FRECKELTON: Yes.
HEYDON J: What did he fail to take into account?
MR FRECKELTON: We say, your Honour, that he effectively fettered his application of the residual sentencing discretion because what he did was to say that matters relevant to the area of a residual sentencing discretion were to be considered only as part of the equation evaluation. In other words, insofar as he considered matters relating to rehabilitation, for instance, he did so in the context of their relevance to protection of the community within that equation, and we say that that is entirely appropriate, but there was a second step which it was incumbent upon him to do. He should have undertaken the analysis as part of the equation, and then proceeded to consider the residual sentencing discretion as it applied broadly; in other words, the section 5 principles.
GLEESON CJ: What is he doing in paragraph 65 and following where he concludes that he can take account of – and he did take account of apparently at great length – evidence relating to progress made by way of rehabilitation, for example?
MR FRECKELTON: Yes, he did, your Honour. The question though is the purpose for which he did take those matters into account, and that becomes clear in the latter part of his judgment, at paragraphs 221 and following. This is where his Honour’s reasoning is at its clearest in terms of the process of logic. His Honour in the previous paragraph had enunciated his findings of fact, numbered amongst which I note at the bottom of page 234 within paragraph 220 is his acceptance of the proposition that, and I quote the last dot point:
Unless excluded by the Act, the well settled principles of sentencing and the provisions of the Sentencing Act governing the exercise of the sentencing discretion apply.
GLEESON CJ: Could I refer you to dot point 4 on page 235?
MR FRECKELTON: Yes. This is the one commencing “Evidence of matters occurring”?
GLEESON CJ: Yes.
MR FRECKELTON: Yes, this is important, your Honour, because what the Chief Justice is deciding in this regard goes to the heart of our appeal. What he is saying is that evidence of matters, for instance, emerging since sentence originally in 1984 is admissible if relevant to gauging the seriousness of the offence or an assessment of the community interest in the four matters as at the date of the hearing.
GLEESON CJ: The expression “as at the date of the hearing of the Director’s application” is important, is it not?
MR FRECKELTON: That is right. This is the essence of it, because what he is doing is saying that these later emerging matters, which we say are very important, can only be factored into the decision of the Supreme Court if relevant to two things, whereas it should be three: one, the seriousness of the offence. Now, of course for the most part they are not going to be relevant to the seriousness of the offence if they have occurred later. One could contemplate some scenarios in which they might be, but generally no. The second is certainly important, but the third we say is, and is omitted, and that is the essence of our first argument.
GLEESON CJ: Well, he refers to three things.
MR FRECKELTON: Well, he says first of all “relevant to the seriousness of the offence” - I have responded in that regard - then “to a prisoner’s culpability in the commission of the crime” ‑ ‑ ‑
GLEESON CJ: That is something as at the date of the crime.
MR FRECKELTON: Yes, that is.
GLEESON CJ: And then he refers to a third factor.
MR FRECKELTON: Yes.
GLEESON CJ: Which is as at the date of the hearing of the application.
MR FRECKELTON: To be sure.
GLEESON CJ: Twenty years after the crime, or whatever.
MR FRECKELETON: Yes, and that is part of assessing what the community interest is in the four factors, and the assessment is of course undertaken at the time of the Director’s application, and so what he says is, to use rehabilitation again – and we will be speaking of matters other than rehabilitation – but to instance rehabilitation, as at the date of the Director’s application, reclamation or rehabilitation of the offender is relevant to gauging the community interest, for instance, in protection of the community, because if a person is rehabilitated then the community will be less at risk. So that is unimpeachable.
But we say it is not covering the field, because the difficulty is that it is an equation that is forming the parameters of the relevance of, for instance, matters of rehabilitation as rehabilitation has emerged, and there is a bigger world, to use the expression that has already been employed. There is an artificial and complex equation that is constructed by section 19(5).
HAYNE J: Well, now, in this case you then have to encounter in this rehabilitation context what is said at paragraph 227, where the judge expresses himself satisfied that there would be a significant risk of re‑offending in the same or similar manner.
MR FRECKELTON: Yes, he does.
HAYNE J: So there is a significant risk of commission of crime of a kind which his Honour classifies as crime of the worst kind.
MR FRECKELTON: Yes, and that leads his Honour to a resolution of the equation which, if it did not go any further, would be the end result and that is the problem, your Honour, because what we say is that that should not be the end. His Honour by reason of only factoring matters such as rehabilitation and mercy and potentially other section 5 considerations into resolution of the equation only has erred, because there is more to be determined afterwards, and the decisions of Harris and Merritt and most recently Knight in New South Wales are emphatic on that point. It is a two‑step process. To put it in Northern Territory language, first there is a section 19(5) exercise and then there is the importation and effective re‑sentencing having regard to the ordinary principles of sentencing as statutorily articulated in section 5.
HEYDON J: If you look at this initially through 19(5) spectacles, Chief Justice Martin went through all the factors and, in effect, decided that the relevant considerations could only be met if the offender was imprisoned for the term of his natural life. There is no second stage to go to, is there?
MR FRECKELTON: Yes, we say there is, your Honour, because the road by which his Honour got to that ultimate decision did not incorporate anything other than the section 19(5) equation and we say, to put it plainly, your Honour, after he reached the kinds of conclusions that he did, which are for the most part matters of fact as to which we have nothing to say, he then should have reflected upon the relevance and significance of ordinary section 5 principles before making what is the most awful decision that a judge has to make.
HEYDON J: Yes, but is there a single section 5 matter that he did not take into account when he was looking at section 19(5) questions?
MR FRECKELTON: I am going to have to answer your Honour by using the words slightly differently. What he did was to take into account some section 5 matters through the section 19(5) prism, but not in the broader context.
HEYDON J: So there is no factor that he left out, but what you say is that there are some factors that should have been considered from two points of view, or twice?
MR FRECKELTON: Section 19(5) is very limited, your Honour, in that the terms of the equation are, in effect, artificial. They are narrower than the ordinary principles of sentencing law.
GUMMOW J: Exactly. Now, you have to read 19(5) with 19(3), have you not, or you start with 19(1) actually, which says the Supreme Court may revoke and - (i) or (ii) - or dismiss. So that is the creation of a new jurisdiction in the Supreme Court by the look of it. If you go to 19 (3), and then “the Supreme Court must fix” - that is the starting point Justice Hayne put to you – must fix. But that then is subject, amongst other things, to (5), which says that they “may refuse to fix” in certain circumstances. Now, where do you get these general sentencing discretions out of these words “may refuse if satisfied”, when “may refused if satisfied” is a qualification of “must fix” under (3)?
MR FRECKELTON: The essence of the provision is that a person already sentenced to murder is deemed to have a non‑parole period of 20 years or, in particular circumstances, 25. The Director of Public Prosecutions can apply for another result for a longer non‑parole period by reason of revocation of the natural outcome of section 18 or can dismiss the application from the Director. The Director has to do it within a certain timeframe and then the Supreme Court upon receipt of a section 19(1) application has to fix a non-parole period of 25 years in certain circumstances. Under section 19(4) it can fix a non‑parole period longer if satisfied of certain matters and then it can accede to the section 19(1)(a) application if satisfied of certain matters. It does not have to. It can do, but it does retain a discretion even if it finds the equation made out to its satisfaction.
GUMMOW J: The question then is what is the content of what you say is the discretion in “may” in (5). Is that right?
MR FRECKELTON: First of all, could I reiterate the point that perhaps I have not made as clearly as I might.
GUMMOW J: The conditions precedent to the exercise of the discretion are the words following “if satisfied”, is that right?
MR FRECKELTON: Yes, that is certainly so. There are two matters which are particularly pertinent but the essence is of course of section 5 and his Honour Mr Justice Southwood in his dissenting decision in the Court of Criminal Appeal enunciated a variety of factors, but two are particularly significant. The first is rehabilitation. As has been observed already, his Honour certainly did consider the issue of rehabilitation but he did so only in the context of the section 19(5) equation.
HAYNE J: There is an ethereal air of unreality about this, Mr Freckelton, where here you have a finding of fact that there is a serious risk of reoffending. What is the further consideration that you say should have been undertaken in face of that finding of fact which you do not challenge?
MR FRECKELTON: This, your Honour, that there is extensive authority that there is no more awful a decision that a sentencing court can make ‑ ‑ ‑
HAYNE J: I know that.
HEYDON J: You do not need authority for that.
MR FRECKELTON: No, exactly. That highlights the importance of any matters that are pertinent, for instance, to prospects of rehabilitation in the long term and the exercise of mercy as well in the broadest sense. To go specifically to the issue your Honour has raised, the Chief Justice made the finding which your Honour has identified in the context of section 19(5) and that is that there is a real prospect – I am not looking at the exact words – of his reoffending in a similar manner.
However, what was before the Chief Justice was also that the man had made considerable efforts at reclamation. He had behaved well over an extensive period of time in prison in difficult circumstances in the Northern Territory. He had acquired skills. He had formed a relationship. There were many suggestions that, although he may still pose some risk at the time of sentencing, he was not irreclaimable.
That is really important because the section 19(5) equation is confined, whereas the residual sentencing discretion places the judge undertaking the section 19 exercise generally in the position of a sentencing judge looking toward the future. There is a distinction between even the finding that the Chief Justice made in respect of rehabilitation in the section 19(5) context and the issue of the man’s efforts at reclamation in the broader sense.
GUMMOW J: Looking then at the words “may refuse” in subsection (5) …..question of what matters were taken into account that should not have been taken into account and what matters were not taken into account that must have been taken into account.
MR FRECKELTON: Can I take your Honour to ‑ ‑ ‑
GUMMOW J: …..the matters that I assume that you say matters were not taken into account but had to be taken into account. What are those matters?
MR FRECKELTON: We say that the matter of rehabilitation at large and the reclaimability of the man and also the issue of mercy.
HEYDON J: On mercy, I mean, it is simply implicit in the whole of Chief Justice Martin’s judgment that he was concerned with justice and mercy in a general sense. On reclamation, it is true that he made findings or made favourable references to evidence indicating some beneficial characteristics and practical aspects of conduct in prison, but the fact is there was a significant risk of reoffending despite these things and there were many other adverse factors.
MR FRECKELTON: That is why what his Honour says about rehabilitation is so clearly focused upon the protection of the community component. But, your Honour, the issue of rehabilitation is a stand‑alone concept. It is also relevant, of course, to protection of the community, but it is a separate, significant issue and of course there is vast case law to that effect.
HEYDON J: What aspect was not taken into account by Chief Justice Martin. You say that the fact that he passed academic courses in gaol, the fact that he generally behaved well, that sort of thing?
MR FRECKELTON: A variety of those sorts of matters which are enunciated by Mr Justice Southwood.
HEYDON J: But they are mentioned in the judgment, they are not brushed aside.
MR FRECKELTON: Yes, he does mention them, your Honour. But, can I take the Court through paragraphs 221 and following to identify the reasoning process engaged in by his Honour and to highlight the point which we are seeking to make in that the discretion which does exist and which all members of the Court of Criminal Appeal are emphatic about and which the New South Wales Court of Appeal has adopted in Harris, Merritt and Knight did not play a role. One can see it from the sequence of reasoning from 221 onwards. He says:
It is against the background of the principles I have discussed . . . I must address the questions posed by ss 19(4) and (5) of the Act. The starting point ‑ ‑ ‑
HEYDON J: Can I just say this, Mr Freckelton. I personally have read this passage about eight times. Do you have to read it out again?
MR FRECKELTON: Can I summarise it, your Honour, I was not intending to read out all of the succeeding paragraphs. He speaks at 222 of the finding as to the extremity of the culpability. He says that there is limited assistance to be found by comparisons with other dreadful crimes. At 225, he notes the perspective of family members. At 226, he goes to one of the matters in the equation on the right‑hand side of the equation: “the community interest in protection of the community”. He makes the finding that has already been adverted to at paragraph 227. Then he goes to another of the matters on the right‑hand side of the equation – general deterrence. He says:
The court is entrusted with an exceptionally heavy responsibility . . . it is a dreadful punishment to sentence a person to the term of that person’s natural life –
At 230, he says there are occasions where that is appropriate; 231, matters change as time passes; 232, his “dreadful crimes require the dreadful punishment”; 233, he, in essence, repeats the terms of the equation. He says that:
I am satisfied that the level of the respondent’s culpability in the commission of the crimes of murder is so extreme that the community interest in retribution and punishment can only be met if the respondent is imprisoned for life -
Notably, he is referring to two matters on the right‑hand side of that equation.
I have paid careful regard to the respondent’s conduct . . . Notwithstanding the passage of time and a degree of progress to which I have referred, I am satisfied that the culpability –
Again, he goes back to the equation –
is so extreme that, assessed today, these aspects of the community interest can only be met by imprisonment for life without the possibility of release on parole.
234 Similarly, I am satisfied that the level of culpability is so extreme that the remaining community interests of protection and deterrence –
the other two matters –
can only be met by such an order.
What he does not do is to go to anything outside that equation. That is where, we say, he has erred and that is the essence of what Mr Justice Southwood identifies.
HEYDON J: What should he have gone to?
MR FRECKELTON: He should have gone to the issues articulated by Mr Justice Southwood.
HEYDON J: I have been through those and you can find copious references in the evidence to each factor. Counsel for the DPP have put many of them in their written submissions.
MR FRECKELTON: Yes. What is not done, your Honour, is to go to the issue of rehabilitation simpliciter, instead confining himself to rehabilitation insofar as it pertains to protection of the community. He also has not gone to the issue of mercy. Mercy is, to use the word that has been raised with me already, an ethereal sort of concept, but we say that it has a particular relevance in the context of a case such as this.
Can I refer to some of the sentiments articulated by Mr Justice Charles in the case of R v Miceli [1998] 4 VR 588. Could I hand up some copies of the decision– we have just reflected on this very laterally – I will not be lengthy about it. It is a decision of the Victorian Court of Appeal in 1997. In my submission, the cases referred to and the sentiments expressed by Mr Justice Charles on page 594 are useful. Starting, then, at lines 27 and following, his Honour refers to:
The relevance of mercy to an exercise of sentencing discretion reflects the Coronation Oath -
He refers to the decision of Chief Justice King in R v Osenkowski (1982) 30 SASR 212 at 212 to 213, where his Honour emphasises ‑ ‑ ‑
GUMMOW J: Historical accuracy, surely.
MR FRECKELTON: I am sorry, your Honour?
HEYDON J: The Queen did not take the Coronation Oath on the 4 November 1952, surely.
GUMMOW J: It was June 1953. It does not matter, but I cannot see how it is relevant anyway.
MR FRECKELTON: Let me pass to what Chief Justice King said:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
HEYDON J: What was there in the evidence in this case to suggest that this offender might reform in the sense of ceasing to be a risk to the community on release?
MR FRECKELTON: The matter is usefully summarised by Mr Justice Southwood, in my submission, your Honour, who showed that the offender had for a period at least of a decade been making genuine and significant efforts toward reclamation. I am not putting that he was reformed or that he was reclaimed. It might be, although we do not concede this, in accordance with his Honour’s finding at 227 that he still poses a risk ‑ ‑ ‑
HEYDON J: Significant risk.
MR FRECKELTON: A significant risk. But he is doing significant things on the road toward ameliorating that risk.
GLEESON CJ: What you say demonstrates that if Chief Justice Martin had come to a different decision, his decision might have been unappealable, but it does not demonstrate that he had to come to a different decision, does it?
MR FRECKELTON: What it does, your Honour, is to identify that the reasoning process that Chief Justice Martin engaged in was unduly narrow and he did not evaluate these broader concepts outside the terms of the equation of section 19(5) when that was his proper sentencing responsibility.
GLEESON CJ: But part of the equation of section 19(5) is the word “may”, is it not?
MR FRECKELTON: Yes, it is, but what that means, in my submission, is this. The court can, if it determines in all of the broad circumstances of sentencing considerations it is appropriate, do so, but it can only revoke if the equation is satisfied. What he has done is to go straight to the equation, find it satisfied and then jump to the next decision - therefore I revoke. What he should have done, we say, is to consider these broader matters independently and separately of the very confining terms of the section 19(5) equation.
That is explicitly what the New South Wales Court of Criminal Appeal does, routinely describing the exercise as a two‑step process. Could I take the Court, for instance, to – starting at the most recent case which we, I confess, discovered this day. I have given a copy to my learned friends; it does not prejudice them. R v Knight - this was that dreadful case decided only very recently on appeal where the woman chopped up her husband and then placed parts of him in a stew. The Court identifies the relevant sentencing principles in relation to whether an offender should be given life imprisonment, the consequence in New South Wales being, of course, that if there is life imprisonment they cannot be released on parole.
GLEESON CJ: That is what I said; life means life.
MR FRECKELTON: Yes. I will go straight to the key issue. At paragraph 23, the Court acknowledges the consideration of the provision in a series of decisions.
GLEESON CJ: Was not the Northern Territory legislation after the New South Wales legislation?
MR FRECKELTON: Yes.
GLEESON CJ: And was it based on it?
MR FRECKELTON: Yes. It is just the same, your Honour, except that there is a different word. To answer your question could I take you tab 3 of the parties’ bundle of authorities.
GLEESON CJ: The reason I ask the question is that when the New South Wales legislation was introduced into Parliament the then Attorney‑General said that the purpose of that legislation was to give effect to and strengthen the effect of Garforth.
MR FRECKELTON: Yes, that is right, and also to represent the common law as it had evolved to that point. That is discussed in Harris, to which I am going to take the Court in just a moment.
GUMMOW J: Section 61(1) says “is to impose”.
MR FRECKELTON: That is it, your Honour. Section 61(3) says “Nothing in subsection (1) affects section 21(1)”, which enunciates the general discretion.
GUMMOW J: Where do we see the text of 21?
MR FRECKELTON: It is in the appellant’s appeal book – if your Honour goes to page 15, paragraphs 40 and 41 of the appellant’s submissions, the relevant parts of section 61 and also of 21 are excerpted. Section 61(1) provides that:
A court is to impose a sentence of imprisonment for life -
Section 61(3) says:
Nothing in subsection (1) affects section 21(1).
Section 21(1) provides that:
If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.
HEYDON J: It does not follow 19(5) at all. That is one problem with it. Another is you were saying this case of Knight to show that there is a two‑stage approach in New South Wales ‑ ‑ ‑
MR FRECKELTON: Yes, your Honour.
HEYDON J: On paragraph 23, about 10 lines from the bottom, the judgment says, “in many cases a two stage approach . . . is appropriate.”
The two stages are is the “objective gravity” such as to bring it within the worst class of case and the second stage is the “subjective circumstances”. That is a different sort of two‑stage approach.
MR FRECKELTON: I am sorry, your Honour, I have lost the spot that you are referring to. This is paragraph 23, the fourth dot point?
HEYDON J:
in many cases a two stage approach ‑ ‑ ‑
MR FRECKELTON: That is so, your Honour.
HEYDON J: That is not your two‑stage approach.
MR FRECKELTON: It is the two‑stage approach which is referred to in Merritt explicitly which purports to apply Harris which in turn purports to apply Bell. In this context, as I apprehend it, your Honour, the focus upon the objective seriousness of the offending and then upon subjective circumstances generally, can I take your Honour to the R v Merritt which is referred to in that very next of the paragraphs.
HAYNE J: Just before you come to that. Paragraph 31 of the reasons you have just referred us to refers to Garforth, Baker. Do you challenge the proposition that even if there are prospects of rehabilitation, there may be cases, ordinarily described as cases falling within the worst categories of offending, which call for the maximum sentence regardless of the subjective circumstances of the offender?
MR FRECKELTON: No, I do not challenge that proposition, your Honour. That is clear law. I do say that this is not one of those.
HAYNE J: Are you not attempting to stand that proposition on its head in this appeal?
MR FRECKELTON: No.
HAYNE J: Because you say the judge should have considered rehabilitation when the judge had already determined, (1) this was first class offending, (2) there was a serious risk of reoffending and yet you say no, the judge should have gone on to consider rehabilitation. Is that not a complete inversion of the proposition that you first accepted as being well established by Garforth and elsewhere?
MR FRECKELTON: In my submission, no. The court does make the finding that this was in a very serious category of case. It does not follow from that necessarily, though, that the subjective factors cannot properly be taken into account. What is determined by the cases to which your Honour has referred is that there are some cases where that follows. There are some of the worst cases, the horrendous ones, of which this is an example ‑ ‑ ‑
GLEESON CJ: But in the terms of the statute, subsection (5), the Chief Justice found that this was a case where the culpability was so extreme that the community interest in retribution, punishment, protection and deterrence could only be met if the offender was imprisoned for life. That is the hypothesis on which we come to this residual discretion of which you speak, is it not?
MR FRECKELTON: Yes, it is. That does not mean that there is no residual discretion left or that it is devoid of content or importance, your Honour.
HAYNE J: Have you not stripped all meaning out of the word “only”?
MR FRECKELTON: No, because of, for instance, the proposition in respect of rehabilitation that I have already enunciated. It might be that with a person such as Mr Leach the offending was of a very high order of magnitude, although we do say to the Court that there are many cases where bad as this is they are worse; multiple murders over a period of time involving gratuitous cruelty, defilement of bodies and so on. It is not a useful exercise to get into comparisons in these dreadful cases, but we do say that this needs to be seen in perspective of a young man who over a short period of time engaged in abhorrent behaviour, but there are many, many worse scenarios.
That point made, we say that there are factors in this man’s conduct over a sustained period of time which, while they may still enable a decision that he remains a significant risk of reoffending now, establish that he is making earnest and meaningful efforts towards reclamation on his own behalf. We say that that is significant in terms of the consideration as to whether so draconian a sentence as to deprive him of the potential for release should be made. There are many considerations which are apposite in the general sentencing framework, particularly in the context of so serious a decision. They are ‑ ‑ ‑
GUMMOW J: I am sorry to interrupt, Mr Freckelton. I want to get to grips with this. Where do you say this case fits in the categories in House v The King (1936) 55 CLR 505 as to appellate interference with exercise by primary judges of statutory powers and discretions - Acts on a wrong principle, extraneous matter, irrelevant matter, mistakes facts, material consideration left out or a catch‑up, unreasonable and plainly unjust?
MR FRECKELTON: We say two things, your Honour, that the way in which the learned Chief Justice construed his sentencing task effectively omitted the operation of the residual sentencing principles. That is the first point, and the second to which I will move in due course, is that a prerequisite to the revocation was satisfaction of an equation and that level of satisfaction should have been beyond reasonable doubt, and we say that both of those are errors of law.
The decisions of Harris and Merritt, in my submission, are both important. They are both precursors to the Knight one. The Merritt decision is to be found in tab 8. It is a 2004 decision of the New South Wales Court of Criminal Appeal, and it dealt with the operation of section 61 in respect of a man who had killed three of his children.
On page 567, Chief Justice Wood at Common Law at line – it has been cut off, but it is the fourth paragraph of the page – referred to the previous decision of R v Harris, which is also in our collection, referring to:
the two‑step process, including the discretion, which has been followed in the application of s 61 -
Likewise, while the Court has the decision of Merritt before it, could I take the Court now to the previous decision of Harris which was the first of the cases significantly construing section 61 and the operation of section 21. The court in that case as part of its process of construing the operation of section 61 particularly had regard to a decision of Justice Hunt in R v Petroff, and it usefully excerpts that decision at page 429.
The reason why I draw the attention of the Court to this is that his Honour Mr Justice Hunt refers to the public and humanitarian interests ‑ ‑ ‑
HEYDON J: We have read that in your written submissions.
MR FRECKELTON: Yes, of providing a person with an incentive for reclamation and for good behaviour, that it also has regard to the reality that without such incentives there is the potential for major management problems in the prisons. We say that those are considerations which are particularly important in this context of the operation of the residual sentencing discretion. The courts have repeatedly said that it must only be in the very clearest of cases that life imprisonment with no prospect of parole should be given.
Now, in terms of the two‑stage process, could I take the Court to page 424 of the Harris decision, paragraph 6 in the middle of the page, the paragraph commencing, “So far as the present case is concerned”.
HEYDON J: I think that is paragraph 4.
MR FRECKELTON: His Honour says:
it appears to me to have been permissible for Bell J, without having to depend upon the common law, to have had regard to the other murders when assessing the level of culpability of each in the application of s 61(1) of the Crimes (Sentencing Procedure) Act and in particular, whether the case was one calling for a life sentence in terms of s 61(1), and then whether, in the exercise of her discretion under s 21(1), a lesser sentence of imprisonment for a specified term could be imposed.
GLEESON CJ: If you look at the headnote to the case on page 409 you see that there were two separate statutory provisions, the one called “Mandatory”:
(1) A court is to impose –
section 61, and then section 21, a general power to reduce penalties.
MR FRECKELTON: That is right, your Honour, and we say that although the architecture is a little different in the Northern Territory, in essence, the combination of section 61(1) and (3) and section 21 are picked up by the alteration of a word “is” with its mandatory overtones, with the let out at section 21, and in the Northern Territory the word “may”. We say that there really is, in essence, equivalence in that regard. I understood that there was some concern about whether they were comparable but the essence of section 61, when combined with section 21, is to provide to the court a discretion as to whether to impose life imprisonment, with the option of not doing so on the basis of ordinary sentencing principles. In the Northern Territory, the discretionary word is “utilised” which is simply, we say, another means of effecting the same objective.
So to summarise our point in respect of the first ground, we say that the analysis of Mr Justice Southwood in dissent in the Court of Criminal Appeal is correct, that the Chief Justice inappropriately viewed his exercise as only a section 19(5) undertaking once he had received the application from the Director to revoke. He ought to have undertaken the process of evaluation within the terms of the equation but also have considered the impact of the residual sentencing principles upon whether nevertheless he should have revoked the deemed non‑parole period.
That has particular significance in terms of rehabilitation at large in the context of this offender, in spite of the risks that he posed at the time of decision, and in terms of the issue of the exercise of mercy in the particular circumstances of this man, and it constitutes an inappropriately confined and fettered decision‑making process thereby constituting an error of law and one that matters, given its impact upon the remainder of this man’s life in prison.
Going then to our second ground – we propose to be brief about this. The essence of what we say is that a serious error is made by the learned Chief Justice in repudiating the proposition directly raised with him that the level of satisfaction required needed to be beyond reasonable doubt, and his decision in that regard is to be found at paragraph 29. You can see there that the proposition was expressly traversed before him at paragraph 29. His decision at paragraph 31, in essence, is that the word “satisfied” means that it is either desirable for the court to arrive at a decision or it is not. At paragraph 34:
The court is either satisfied that a particular course or sentence is appropriate or it is not. These are matters of judgment based upon facts proven to requisite standards.
What we say about this is more subtle than perhaps has been interpreted by our learned friends. This Court in Olbrich decided, adopting Storey from the Victorian Court of Criminal Appeal, that where there are facts adverse to the interests of the person to be sentenced, they must be proved beyond reasonable doubt.
That aspect of reasoning, we say, is applicable but not absolutely apposite because the issue here is not one of facts. We readily concede that. The provision establishes a pre‑condition to the imposition of life imprisonment without the potential for parole. If this Court has determined that matters which can impact pejoratively upon the sentencing of a person must be proved beyond reasonable doubt - because that could add to the person’s term of imprisonment, for instance – we say the very essence of that reasoning needs to be applied in this scenario.
The legislature has elected to use the word “satisfied” and that is a word that has a whole range of connotations. It did not use the words “decides, believes, determines”. It used the word “satisfied” and we say that of the essence of so many aspects of the law – criminal law, Briginshaw civil matters – is the concept of a spectrum, a spectrum of satisfaction. That is what Briginshaw is all about. The court is satisfied of certain matters. It can be somewhat satisfied or it can be satisfied to something closing in on beyond reasonable doubt if the essence of it is something very close to criminality, for instance, taking into account the adverse consequences, again, for the person concerned.
We say that the Chief Justice has erred by failing to have regard to the gloss which ought to be imposed and which is part and parcel of the essence of the word “satisfied”. It was not so simple as for the court to be simply of the view that the equation was made out or not made out. We say that in something so serious the kind of subtlety which is the essence of Briginshaw and which has underlaid – if that is the right word – the decision of this Court in Olbrich, must be imported to the decision to be made about the equation. The court must be, in essence, really confident - in other words, satisfied beyond reasonable doubt - before it arrives at so serious a determination about a man’s life.
We come here embarrassed to put it in this raw way. We have done considerable research looking for useful analysis of the word “satisfied” in comparable scenarios and have not found anything directly on point and we say, embarrassedly, but in the end unashamedly, this is a fundamental proposition. It is as fundamental but maybe even more important than the Olbrich decision of this Court and it would be a strange scenario for this Court to have decided as it did in respect of Olbrich and yet to say that a person can just be dichotomously satisfied as to something so very, very important.
Now, the Court probably does not need this but there are many, many provisions, of course, in different contexts where the word “satisfied” has, in statutory form, some kind of qualifier to it. Now, for instance, and this is only one…..in Victoria in the context of indefinite detention the court has to be satisfied under section 18B of the Sentencing Act 1991:
A court may only impose an indefinite sentence on an offender in respect of a serious offence if it is satisfied, to a high degree of probability –
of various matters. It is very common for a demand of courts that they be satisfied to a particular kind of degree. I am trying to use a neutral word. We say that the mere fact that that is not expressed explicitly does not detract from the proposition that so important is the decision to be made that
of its very essence in this criminal domain the level of satisfaction that needs to be maintained by the court needs to be beyond reasonable doubt. Unless there are further matters, that concludes our submissions.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR PAULING: Your Honours, can I firstly deal with a question about whether a two‑step approach is necessary in a case like this. In Garforth, your Honours, as we know, the New South Wales provision came from what fell from their Honours in that case. There are two things I wanted to say about Garforth. The first is that it analyses what Chief Justice of Common Law Hunt said in Petroff about the indeterminate nature of a life sentence, and their Honours said:
We acknowledge the force of these sentiments. That is why life imprisonment is to be imposed only in the worst type of case. Nevertheless there are cases in which such a severe punishment fits the crime. This is one such case.
Your Honours, we say in respect of Mr Leach, this is one such case where quite clearly the punishment fits the crime. Your Honour, what we wanted to also draw from Garforth was that a submission was made to the court in that case that it was only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed and their Honours said:
We reject the applicant’s submission that it is only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed. There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by the imposition of the maximum penalty. As we have indicated, we believe that this is such a case.
Your Honours, when one looks to the so‑called two‑step approach that was said to be taken so that his Honour the Chief Justice limited himself to looking at matters relevant to general sentencing principles through the prism, so he put it of 19(5), can I take your Honours to tab 4, which is the Chief Justice’s decision at paragraph 233? I know your Honours have given careful attention to these passages already. I simply wanted to point out the conjunction in 233 of his Honour’s finding of satisfaction that:
the level of the respondent’s culpability in the commission of the crimes of murder is so extreme . . . Notwithstanding the passage of time and a degree of progress to which I have referred, I am satisfied that the culpability is so extreme that, assessed today, these aspects of the community interest can only be met by imprisonment for life without the possibility of release on parole.
I think your Honour the Chief Justice put that to my learned friend. Our submission is this, that even at that stage when subjective elements as discussed in Harris - to which I will take you - could scarcely change the mind of the Chief Justice that the only way in which the public interest could be met was to refuse a non-parole period, he nonetheless is still considering the only two matters to which my learned friend seems to have referred, except for mercy, that is the passage of time and a degree of progress.
That is set against the situation that his Honour, unlike this Court in Bugmy, was not looking ahead 18 and a half years, it was looking back 21 years, that progress had not meant that this man had ceased to be a significant risk of re-offending in the same or a similar manner. So really, we submit, your Honour, that there is an air of unreality about trying to tease out in a very long and very considerate and, with respect, compassionate judgment, that there is some technical step that should have been made that is called a second step which, as has already been identified in Harris, says it is appropriate in some cases.
We say a second step was not appropriate in this case once you got to the point that his Honour did that the culpability was so extreme that the public interest could only be met by a refusal of a non-parole period. This is one of those cases where any other considerations of a subjective nature are insignificant. They should not weigh in the balance at all and, indeed, that is what in Harris, which I will take you to, tab 7, your Honour the Chief Justice referred to an issue in the headnote of that case, but in the second holding in that case – and I will take you to the extra passage – it says:
Where the objective seriousness and culpability of an offender, whether assessed at common law or under s 61(1), warrants the imposition of a life sentence then the subjective circumstances cannot displace the need to impose that sentence ‑
which rather is at odds with the idea that Harris stands for the proposition that one has to stop at the brink, as it were, and say, “Now I am going to reassess all the subjective matters that might be relevant if this was a general sentencing exercise and I had not got to that level of satisfaction. Should I reflect that there is some lesser penalty” – I am talking about 61(1) here – “that I should impose than life imprisonment or some” – in 19(4) and (5) terms – “lesser period, determinate period of non-parole period that would satisfy the public interests?”
In our written submissions we analyse this and say in brief that if the learned Chief Justice had come to the view that a non-parole period of 40 years would satisfy the public interest then the word “only” in 19(5) would not have been met. The public interest could be met by something less, but here we have, on the clearest possible evidence and the most compelling of circumstances, a finding that this man ought never to have the benefit of parole.
Your Honours, as to the first ground we say that there is nothing pointed to that seems to be an error in the House sense where one could say if his Honour had taken that into account that would have been determinative. That would have made a difference. That would have meant that his Honour would have set some sort of non-parole period rather than refuse to make one. We say, your Honours, that it all boils down to that issue that either a second step is not necessary in a case like this, or a case like Garforth or Knight, for that matter. This is a case where the objective circumstances are so horrible that the public expectation has to be met.
I should point out the history shown and the analysis of the development of parole for persons convicted of murder, that it has taken the Northern Territory a very long time to come along the way to what Justice Southwood said was Parliament being merciful, to even contemplate the idea that people in prison for life for murder might ever be released. So that this is a significant step but there is a barrier put in the way, if you like, that in the most horrendous sorts of crimes, of which this one is, then that barrier cannot be passed and, in our respectful submission, on proper analysis, and we rely on our written submissions in this respect, the first ground of appeal should be dismissed.
As to the second ground of appeal, your Honour, it comes to this Court because on the special leave application it was supposed that there was a direct collision between Leach’s Case and Merritt. I have done this in the written submissions, your Honour, and shown what in fact happened in Merritt, which is at tab 8. There, the Chief Judge at Common Law analysed the facts in detail beginning at the print at 562 and spent five pages dealing with facts and concluded with a particularly important fact for the purpose of the sentencer. He was talking of the prisoner and says:
He was sentenced upon the basis that he had intended to kill each of the children.
The top of 567. It is only then that his Honour turns to deal with the relevant principles and has the very brief four line reference to Olbrich.
Now, properly understood, in my respectful submission, what he is saying is, “Here are all the facts and of course all those facts need to be established to the requisite degree because they are the basis of the application of sentencing principles and all of those facts that are set out there the learned judge below had been satisfied to the requisite degree”. So it did not involve any analysis of whether or not the ultimate decision to impose a life sentence had to be one which arouses satisfaction beyond reasonable doubt because, properly read, what Merritt says is that it is all those facts that go to say you are within 61(1), that is, the degree of culpability is so extreme you are satisfied of that and what the public interest is in the circumstances and that then leads, we say inevitably, to the application of that ‑ ‑ ‑
GLEESON CJ: I do not understand it to be your submission that the word “may” in section 19(5) means “must” or “shall”.
MR PAULING: No, I do not say that.
GLEESON CJ: I understand the point of departure between you and your opponents to be on the question whether the primary judge in the present case disregarded the discretion that was conferred on him by the word “may”.
MR PAULING: Yes, and we say he did not and we say the passage we have taken you to, your Honours, and the ones we have analysed and footnoted in our written submissions, demonstrate that he paid careful attention to all these points at three different stages of the exercise: assessing the seriousness of the defence, assessing the degree of culpability and ultimately examining, as we say in our written submissions, the public interest, one of which must be rehabilitation because you have to look at that to consider the protection of the community.
A fully rehabilitated person may be released into the community without risk. This man could not and that is why Justice of Appeal Tobias said if there was an absence of one of the elements it might be much harder to say that somebody came within the statute or the provision of the statute but that does not mean that you cannot ever come within it. But what the Chief Justice in Leach’s Case has done is to very carefully, as we know, look at the whole issue of rehabilitation and to keep coming back to it to see if it made any difference. Once he got to the point though, that the only way in which the public interest could be met, it is true to say it is very difficult to see how you can draw back from that position.
Nonetheless, in Merritt that is what happened. You will recall in Merritt the person smothered his three children. He was in a state of depression. The primary judge sentenced him to life imprisonment which, of course, in New South Wales meant that he would not get any parole. Having decided that the sentence was excessive the Chief Judge went on to analyse those matters which meant that a lesser sentence was appropriate in Merritt’s Case and they are set out in the report at tab 8 at page 576. So that his Honour found facts which he regarded as tempered – the criminality should be tempered, regarded as tempered, by the following circumstances. It lists them (a) to (f). All absent in this case.
It then goes on to talk of the medical evidence and to discuss issues personal to the offender - pleading guilty, contrition, remorse, all of those sort of things - and thought that in those circumstances if they were positively made out it may be that you would say, “Well, even though the court has come to the conclusion that all the factors are there and that the only way in which to meet the community expectation or interest is to make the particular order” that nonetheless this perhaps provides a concrete example of when in some circumstances you might draw back from that, despite the heinousness of the crime.
What we have sought to do in our written submissions is to show that whilst there needs to be a balance with these things there comes a point where the degree of culpability in the commission of the crime is such that it does not necessitate and the Chief Justice said it did not necessitate, even at that point, the refusal to make an order, a non-parole order, but the fact of the matter is that the cases, where they are awful cases, get to the point where you say, “Well, what weight can these subjective elements have?” and all we have, in this case – and no doubt it was put forward before the Chief Justice and argued before the Court of Criminal Appeal – was that whilst at this stage, at the stage when the judge refused to fix a non‑parole period, he did so against the background of finding that there was a serious risk that this offender would offend in the same or a similar way if released, that somehow or other one might project forward another 20 years or so and, perhaps, even then, he might then not represent some harm and somehow there is some principle that says that this should excite the Court to set aside the Chief Justice’s orders and remit it for a non-parole period to be set.
Your Honour the Chief Justice is perfectly correct in saying where we draw the line and we did, in our written submissions, say that we accept the fact that “may” means may but it also means may in the sense that your Honour Justice Gummow said, that you must do this, then these circumstances you may do that, which is even more. You may increase it or you may refuse to set a non-parole period.
So that the search, as it were, for some principle that means that in this particular case one would think that some injustice had occurred because at some step in the process the Chief Justice had failed to take something into consideration is not made out. As your Honour Justice Heydon rightly points out our submissions footnote each and every
of the considerations that were averted to by Justice Southwood and so this is where the Chief Justice looked at it. This is how he dealt with it and one needs to remember that the starting point for the Director before the Chief Justice was that he should not look at anything that had happened since the time closely surrounding the crime. He should just look at the culpability then, ignore anything that had happened since, but favourably to the appellant the Chief Justice said, “No, I am not going to do that. I am going to look at the whole 21 years” and he, as you can see just by the index to the judgment, spent a great deal of time and care in doing the best he could with the material and even then, notwithstanding the slight favourable things that he found – that is, the passage of time and the progress – he felt compelled in those circumstances to refuse to set a non‑parole period. He correctly recognised that what the Parliament was saying to the court was there are going to be circumstances where the only possible punishment is imprisonment for the term of a person’s natural life and this is one of them.
Your Honours, we rely and do not repeat what we said in our written submissions. I think the position is very clear and, with respect, those are the submissions on behalf of the respondent.
GLEESON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Freckelton.
MR FRECKELTON: Thank you, your Honour. I have three brief points. My learned friends maintain that this was a case where the point was reached that the crime was so very, very serious that there was no effective role whatever for the residual sentencing discretion. We say that it is very important that this case be kept in perspective. We say this is no Coulston, Knight, Bunting or Milat. This is a man who executed two dreadful murders but in respect of whom no really serious matters can be said arising from the next two decades.
The position, secondly, taken by our learned friends effectively denudes section 19(5) of any discretionary meaning. Even Justices Riley and Mildren did not adopt so extreme a stance at paragraphs 15 and 30 of their judgments. We submit to the Court that the word “may” was selected advisedly by the Northern Territory legislature against the backdrop of the New South Wales legislation and it is vital that it be given real meaning and real substance in its interpretation.
We note in that regard that it was held in the Knight decision that it is in many cases that a two‑stage approach should be implemented and we submit that the combination of Knight, Merritt and Harris means that that is the approach which ought to be applied in the comparable interpretation of the Northern Territory legislation unless it is so extreme a case, for instance, like Albury, where part the way through the hearing the man himself said
that if released he would kill again. There is an extreme case and we say this is a world apart from that.
Moving to the second ground and the point made by our learned friends about Merritt we say that the interpretation proffered by them as to the words of the Chief Judge Wood are strained to say the least and that the preferable interpretation of what his Honour was saying was that proving that a case is made out or falls within section 61(1) in accordance with the thinking of this Court in Olbrich requires satisfaction beyond reasonable doubt.
If one construes the actual words used by the learned Chief Judge that is the most natural interpretation of them. If that is right there is an absolute conflict between the Merritt decision and that of the Chief Justice and the majority in the Court of Criminal Appeal in this matter. Whether or not that is correct, we say that as a matter of general principle the level of satisfaction required in respect of so grave a matter must be beyond reasonable doubt.
GLEESON CJ: Did we not say something about this question of proof in relation to future dangerousness in Fardon?
MR FRECKELTON: Yes, and it was a special leave application in SLD which was refused. That was in that context of proof of matters lying in the future dangerousness and similar. We say that is a slightly separate – it is cognate but it is a separate consideration because what we have here is a requirement for a pre‑condition to be satisfied, if you will, before a consequence and proof of matters beyond reasonable doubt is comparable but conceptually slightly different and that is why we have not taken the Court to the difficult distinctions that have been traversed in SLD, Gieselmann, Barton and so on. We say that those are slightly different.
GLEESON CJ: Thank you. We will reserve our decision in this matter and the Court will adjourn till 4.15 pm in Court No 3 to deal with the special leave applications that are before Panel Two and we will adjourn until 9.30 am tomorrow morning to deal with the special leave applications that are before Panel One.
AT 4.00 PM THE MATTER WAS ADJOURNED
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