Leach v The Queen

[2006] HCATrans 465

[2006] HCATrans 465

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D4 of 2006

B e t w e e n -

MARTIN LEACH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 SEPTEMBER 2006, AT 9.50 AM

Copyright in the High Court of Australia

MR I.R.L. FRECKELTON:   May it please the Court, I appear with MR R.R. GOLDFLAM for the applicant.  (instructed by Legal Aid Commission of the Northern Territory)

MR R.S.L. WILD, QC:   May it please the Court, I appear with my learned friend, MS S.G. OZOLINS, for the respondent.  (instructed by Director of Public Prosecutions (Northern Territory))

GUMMOW J:   Yes, Mr Freckelton.

MR FRECKELTON:   Your Honours, two important matters arise from this application.  The first relates to the circumstances in which general sentencing principles should continue to be relevant and significant in the exercise of the sentencing discretion in terms of a person who has committed the offence of murder and who is facing or already undergoing a sentence of imprisonment for the term of their natural life.

GUMMOW J:   When one talks of ordinary sentencing principles, they are being applied at a great gap in time, are they not?

MR FRECKELTON:   Yes, they are, and that is crucial in this instance, your Honour, because the passage of time can have many ramifications for the amenability to rehabilitation, for instance, and the attitudes of the sentenced person.  Again, relevant in terms of general sentencing principles which can be very different from what was pertinent 20 years before, as in the situation of Mr Leach.

GUMMOW J:   What is this point put against you at page 203, namely, the significance of the rape conviction which is not caught up in this new legislation?

MR FRECKELTON:   No, it is not.  The new legislation relates solely to murder and the situation is that Mr Leach was sentenced to life imprisonment on the rape count also.

GUMMOW J:   Does that not render what we are invited to do futile?

MR FRECKELTON:   No.  Were Mr Leach to be successful here, the application would be made for him to appeal out of time against the sentence for rape, and were this Court to have found that it was appropriate for there to be a non‑parole period set, that would be a potent consideration indeed, we say, for the Northern Territory Court of Criminal Appeal to do that which was not previously open to it and to contemplate what lesser sentence would be appropriate in all the circumstances.

HAYNE J:   Why?

MR FRECKELTON:   It perhaps is obvious, your Honour, that the offences of murder were even more heinous than that of rape and the considerations which might now impact upon this Court in respect of a non‑parole period for murder are ones which would sit bizarrely if a person’s sentence for rape continued for the remainder of his natural life.  There would be an unfairness and an inappropriateness of an amelioration of his circumstances by reason of this legislation in respect of murder and this Court’s decision and ‑ ‑ ‑

HAYNE J:   Why is that not a complaint about the legislation?

MR FRECKELTON:   It is not a complaint about the legislation, your Honour, because that is why there is always in exceptional circumstances the potential for an application for leave to appeal out of time and the exceptional circumstance would be the intervention, in effect, of this Court on the basis of the new legislation in respect of murder.

KIRBY J:   But was there an appeal after the original conviction?

MR FRECKELTON:   No.

KIRBY J:   Neither against conviction, nor against sentence?

MR FRECKELTON:   No.

KIRBY J:   So the Court of Criminal Appeal, or now the Court of Appeal, has not really passed on the issue ever?

MR FRECKELTON:   Exactly so, your Honour.

KIRBY J:   Was there any discretion in the legislation on conviction of rape in the former days to reduce the life imprisonment to a lesser sentence?

MR FRECKELTON:   Yes, there was.

GUMMOW J:   Can we be sure about that?

MR FRECKELTON:   I understand that to have been the situation.  It was a sentence certainly that could be imposed but, as I apprehend it, it was not mandatory.

GUMMOW J:   Can you assist in this regard ‑ ‑ ‑

MR FRECKELTON:   Yes, on page 6 his Honour the learned sentencing judge indicated that the maximum sentence for rape is imprisonment for life.  So to that extent it was a discretionary sentence.

GUMMOW J:   I will ask Mr Wild.  Can you assist you in this respect, Mr Wild?

MR WILD:   Yes, your Honour.  My learned friend is correct in saying what he just said.  It was a maximum penalty of life imprisonment and his Honour imposed that maximum penalty which then meant there could not be a non‑parole period fixed.

GUMMOW J:   Yes, thank you.  Yes, Mr Freckelton.

MR FRECKELTON:   So in answer to your Honour’s question, the opportunity remains for an application for leave to appeal out of time on the basis of what transpires here if Mr Leach is successful.

GUMMOW J:   Perhaps you had better return to the central point, as you see it, of this application.

MR FRECKELTON:   Yes, thank you.  Going to the first of the grounds then, the issue that we seek to traverse is the fundamental issue of the relevance of general sentencing principles.  It is common ground and has been accepted by all judges of the Northern Territory Court of Criminal Appeal that the provision of section 19(5) does not oust general sentencing considerations and that it is a discretionary provision, but the way in which both Justices Mildren and Riley framed their decision effectively excludes it.  That is where we say the vice lies.  That is to be found in the judgment of Justice Mildren at paragraphs [11] to [15], particularly at paragraph [15].

GUMMOW J:   What page of the application book?

MR FRECKELTON:   I beg your pardon, at page 132 going over to 133 where his Honour says:

Although there remains a residual discretion in the court whether or not to refuse to fix a non‑parole period, it is difficult to see how such a discretion could operate except in one way, depending upon the ultimate finding of the court, as the court will have already considered all of the relevant sentencing factors.

At page 140 Mr Justice Riley says something very similar in paragraph [30] at the bottom.

GUMMOW J:   Just a moment, page 140, paragraph [30], “it is difficult to see”.

MR FRECKELTON:   That is it.  This arises from the ‑ ‑ ‑

GUMMOW J:   What was the view of the dissenting member of the court?

MR FRECKELTON:  That is the essence of the dissent, your Honour, because Mr Justice Southwood at page 182 identifies a range of factors which led him to conclude that in this instance, for instance, a non‑parole period should be imposed.  Middle of page 182, which is paragraph [112] ‑ ‑ ‑

KIRBY J:   I got an impression on reading Justice Southwood’s reasons that he really took as the anchor of his reasons an analysis of the new statute and what its purpose was and, therefore, he was less focused than the other judges in the Court of Appeal on the horror and dreadfulness of the crime and more upon why Parliament had provided that notwithstanding that fact there should be the facility of parole.  He addressed himself to that question in the circumstances, including those that have occurred since the conviction.  Is that a correct impression of a point of difference between the majority and the dissenter?

MR FRECKELTON:   It is part of the difference, your Honour, but it seems to us that it goes further and lies in the difficult wording of section 19(5) which is, of course, replicated in section 61 of the New South Wales legislation to a substantial degree because the capacity of the Supreme Court to decline to fix a non‑parole period arises from satisfaction that the level of culpability in the commission of the offence is of such a level the community interest in four factors can only be met.  In other words, the framing of the analysis is in terms of the commission of the offence and the offender’s blameworthiness for it.

KIRBY J:   So that notwithstanding the most heroic efforts of rehabilitation within the confines of prison and conversion in the personality of the individual, medical proof that the person is no risk to society and so on, if retribution, punishment, protection and deterrence, having regard to the circumstance of the original crime as such, then the original crime trumps everything that has happened since.

MR FRECKELTON:   That is it, your Honour.  So if the original crime is bad enough section 19(5) will preclude the person ever being released.

KIRBY J:   Why was it not open to the Chief Justice to reach the view that the original crime was bad enough?  I mean, the offence involved raping one of the victims with the knife still in that victim, so that what would be the error that would permit the Court of Appeal to reach a different view, having regard to the terms of subsection (5)?

MR FRECKELTON:   The problem in the way in which the learned Chief Justice went about the exercise is that he stopped in his assessment at evaluation of the impact of culpability upon the assessment of community interest in the four pertinent factors.

GUMMOW J:   Did the primary judge make this mistake?

MR FRECKELTON:   We say he did, your Honour, because he did not ‑ ‑ ‑

GUMMOW J:   It does not seem to be so patent.

MR FRECKELTON:   It is not as explicit as in the two passages that I have identified from Justices Mildren and Riley but it is clear enough that his Honour never explicitly articulated the ongoing role of the section 5 general sentencing criteria.

GUMMOW J:   The ultimate question is whether the primary judge should be upset.

MR FRECKELTON:   Yes, and we say he should because it was incumbent upon him to evaluate explicitly the effect of the general sentencing criteria.  That is the vice, one of which was appealed to the Court of Criminal Appeal, and then Justices Mildren and Riley declined to overturn on the basis that they can scarcely contemplate any situation where those would be relevant because they are covered by section 19(5).

GUMMOW J:   That is right.  Where is the passage in Justice Southwood where he finds error by the primary judge?  After all, he would have allowed the appeal.

MR FRECKELTON:   Yes.

GUMMOW J:   He says it “misunderstood the nature of the discretion”.

MR FRECKELTON:   Yes, he did.  It is explicitly said in paragraph [118] but he puts it in terms ‑ ‑ ‑

GUMMOW J:   Yes, “misunderstood the nature of the discretion”.

KIRBY J:   And is that the point of distinguishing the approach that is now said to arise on this decision from the approach in the New South Wales Court of Criminal Appeal?  Is the so‑called mistake or misunderstanding of the nature of the discretion, is that putting the finger on what is the difference that has now emerged between the approach to this provision in New South Wales and in the Northern Territory?

MR FRECKELTON:   It is partly so, your Honour.  Certainly in the New South Wales Court of Criminal Appeal in Merritt the court agrees that the general sentencing considerations continue to apply.  They say so explicitly at page 319, paragraph 36 of the decision with his Honour Chief Justice Wood saying:

It has been resolved in favour of recognising the continued existence of the discretion, notwithstanding the fact that the s 61(1) criteria are met, where the offender’s subjective circumstances justify a lesser sentence than one of life imprisonment.

HAYNE J:   Now, can I take you back to what this Court would do on your submission, in particular, presumably it is set it aside, send it back for re‑sentence.

MR FRECKELTON:   Yes.

HAYNE J:   On re-sentencing what account does the primary judge take of the fact the man stands convicted of rape and was sentenced for that offence?  How can you sentence this man in respect of the murder counts without taking account of the rape counts?  What ground would the Court of Appeal act under if it granted leave to appeal out of time to upset the sentence imposed on this man for the rapes?  Have you not got to grapple with all of those issues before we get to the question which you seek to agitate in this Court?

MR FRECKELTON:   Your Honour, it is a very difficult situation.  It is a real chicken‑and‑egg scenario as to which ought to be dealt with first because the two are so connected.

HAYNE J:   Well, let us look at the rape for the moment.   Let it be assumed leave is granted to appeal out of time.  What is the ground of appeal?

MR FRECKELTON:   That in all of the circumstances ‑ ‑ ‑

GUMMOW J:   Including the present circumstances, namely, the intervention of the Act to deal with the murder sentence?

KIRBY J:   You have to show error at the time the sentence is imposed and I would have thought the way to solve the chicken‑an‑egg problem – it is not all that difficult – would be to co‑ordinate an application for leave to appeal out of time, to seek that and to have that listed at the same time as the proceeding and, essentially, to suggest to the Court that the life imprisonment that was imposed was at the time it was imposed a sentence imposed because the prisoner was facing the imprisonment for life for the murder charge and that in the light of all of the circumstances they were a very bad case of rape – it is not the worst case imaginable – and therefore that that should be reformulated.

MR FRECKELTON:   Yes, your Honour.  There is an extra consideration too.  There is now provision for a non‑parole period to be fixed for a life sentence for rape and there was not at the time.

HAYNE J:   Do you say that could be engaged in respect of this sentence?

MR FRECKELTON:   Yes.

HAYNE J:   Why?

MR FRECKELTON:   Even though it was not an issue, obviously, that arose at the time of the sentencing ‑ ‑ ‑

HAYNE J:   Yes.  By what right would it now apply?

MR FRECKELTON:   No, this is secondary to what Justice Kirby just raised, that there has been a fundamental realignment of the sentencing regime in the Northern Territory and this now sits as an absolute anomaly.  It is almost unparalleled for a life sentence to be imposed for rape in the Northern Territory and there is this extraordinary scenario now whereby there is the legislation in respect of murder with the potentials that are before this Court in respect of that, but not explicitly in respect of rape, and the landscape has changed in relation to the existence of non‑parole periods.  We submit that it would be within the general discretion of a contemporary Court of Appeal to visit that in these unusual circumstances.

HAYNE J:   It is an assertion of conclusion.  It is not an assertion about statutory construction, Mr Freckelton.

MR FRECKELTON:   No, it is not.

HAYNE J:   At some point you are going to have to grapple with the words of the Act, but perhaps not immediately.

KIRBY J:   I suppose you are entitled to say to us that you can only deal with one step at a time, that we do not have the rape matter before us, we do have the murder, and though they are interrelated because the possibility would be that the answer to the murder parole is it is futile because of the rape life sentence, but you have signalled that you want to challenge the rape life sentence but you cannot even get to first base unless you can challenge the murder life sentence.

MR FRECKELTON:   That is exactly right, your Honour, and we simply say in respect of the issue originally raised by Justice Gummow, should we be successful in respect of the murder, we shall then deal with the scenario in respect of the rape and we come here identifying ‑ ‑ ‑

HAYNE J:   The point I think you need to grapple with is whether you can succeed in respect of the murder without grappling simultaneously with the rape.  That is you cannot effectively get a non‑parole period set for this man without somehow getting in behind the rape sentence.

MR FRECKELTON:   We certainly have the capacity to make application for the Court of Appeal for the first time to deal with the rape sentence, your Honour.

KIRBY J:   Yes, but you will understand our curiosity as to why that was not done in the first instance because on one view, why would a parole board, for example, ever enter upon the hypothetical question of fixing a parole period – and you have to get eight citizens, as I understand it, unanimous to do so – when the man is under sentence of life imprisonment for another crime?  It just seemed that logically you had to bring both applications at the one time before the Court of Appeal, yet that was not done.

MR FRECKELTON:   The situation is difficult, your Honour, because the initial application in respect of the murder was properly brought before a single judge of the Supreme Court and it is en route from that that we find ourselves here.

KIRBY J:   That is right, but the curiosity is why when you brought the appeal to the Court of Appeal from the orders of the Chief Justice refusing the parole period on the murder you did not co‑ordinate that with an attack on the rape sentence without undermining which it is difficult to conceive how a parole board, or even perhaps a Court of Appeal, could disturb the earlier sentence whilst the other one stood undisturbed.

GUMMOW J:   One possibility is – and I only mention it as a possibility – to stand this application over pending your making such application as you may be advised in respect to the Territory Court of Criminal Appeal in respect of the rape conviction and then the whole thing, if appropriate, could come here.

MR FRECKELTON:   Your Honour, that exists, but then from the perspective of the Northern Territory court they will have made their decision in respect of the murder declining to overturn the decision of the Chief Justice ‑ ‑ ‑

KIRBY J:   They will say, “Well, it is pointless to do this because we have decided that you can’t disturb the murder”.

MR FRECKELTON:   Yes.  So we seek something of a circuit‑breaker by the issues of principle being decided in respect of the murder by this Court.

GUMMOW J:   But is it an appropriate discretionary factor under the new legislation to take into account the subsisting conviction for rape and sentence for rape?

MR FRECKELTON:   In my submission, it is not.

KIRBY J:   I suppose this Court could, for the purpose of the circuit‑breaker, say that it would be a condition of any grant of leave to appeal that you mount a challenge to the rape conviction and an application for leave out of time to appeal to the Court of Appeal against that if that is available to you.

MR FRECKELTON:   Yes, that certainly would be open, your Honour, and it certainly would be the intention of Mr Leach.  What has been contemplated is that the murder component of this be addressed and then the rape one.  Now, strategically that might be impugned, but we can certainly say to this Court that there would be no point whatever in the rape side of matters being left on its own after the murder has been dealt with, because the man remains in prison for the rest of his life otherwise.

GUMMOW J:   Thank you.  We will hear from Mr Wild.

KIRBY J:   Mr Wild is appearing for the Crown, which is always a fair litigant.

MR WILD:   Thank you, your Honour, for those words.

KIRBY J:   He will find a circuit‑breaker for us.

MR WILD:   Well, your Honours, I do not know how kind I will be today.  Could I point out that the matter we are now discussing was raised by Justice Mildren in the court below – and this appears at page 134 – and he said:

Finally, mention should be made of the fact that the appellant is also serving a life sentence imposed by the original trial judge –

and he set out the very issue which is being agitated.

KIRBY J:   But it is fair to say I do not think in any of the years I have sat in courts of criminal appeal or this Court that I have ever seen a life sentence for rape.  They must exist, if the statute provides for it, and this was a particularly horrendous rape because the act of intercourse continued although a knife was stuck in the chest of the victim, but it would be very, very unusual to have a life sentence for rape in contemporary Australia.

MR WILD:   It is true it is unusual.  Your Honour used the expression “it is not the worst case”, but of course that is not the test.  We would say this is one of the worst, which is all we need to establish, I think.  Your Honour will recall – and it appears in the application book at pages 6 and 7 – that his Honour the sentencing judge in 1984, Chief Justice Muirhead, was in fact then disposed to impose that life sentence for the rape irrespective of, as he said, the life sentences that had been imposed for the murder.  So what he says – and this appears at page 6:

I’m required to sentence you for rape endeavouring to do so without allowing the subsequent tragic outcome to intrude upon the sentence.

His Honour took the view that this was a worst case rape in imposing the sentence.

KIRBY J:   Because he was sentencing in the light of the knowledge that he had that he was sentencing for life imprisonment for murder, mandatory life.

MR WILD:   Yes, that is true, your Honour, but he specifically says that he was putting that out of his mind for the purpose of imposing the sentence on what he regarded as a worst type of rape.  Now, you can always look behind that of course – and your Honour may well be right, subconsciously it may have impacted on him, but that is not what he says, and there was no appeal from it at the time.

KIRBY J:   Well, it was pointless in a sense at the time to appeal against the rape because of the mandatory life sentence for murder.

MR WILD:   Yes, your Honour, but even in 1983 and 1984 there would be an expectation that at some time in the future a life sentence for murder or for anything might be ‑ ‑ ‑

KIRBY J:   Well, that expectation has now fallen in ‑ ‑ ‑

MR WILD:   Indeed.

KIRBY J:   ‑ ‑ ‑ and the applicant says he wants to seek leave out of time.

MR WILD:   Yes, that is so, but nevertheless he now is 20 years out of time.  That is the issue that his Honour Justice Mildren dealt with in the Court of Criminal Appeal and he said he is going to have some trouble.  Now, that is only one judge’s view, but he said he will have some trouble in getting leave.

GUMMOW J:   At the bottom of page 134.

MR WILD:   That is at the bottom of 134, your Honour.

KIRBY J:   But if an error has occurred in the way in which the majority approached the new statute for parole in cases of murder and if it affects the term of natural life of the prisoner and if it puts the Northern Territory Court of Appeal out of line, arguably, with the Court of Criminal Appeal of New South Wales on similar legislation, and if there would be a procedural circuit‑breaker, we would not foreclose the correction of the error.  We would then leave it to the Court of Appeal in the Northern Territory to decide whether, out of time, in light of what the primary judge said on the rape conviction, to intervene on that.  Then the applicant who is facing the term of his natural life, a most grave outcome, would at least have had the opportunity of having the error removed from the consideration of a murder conviction and sentence.

MR WILD:   Your Honour is inviting me now to exercise the kindness that you accused me of earlier in agreeing with that proposition.

KIRBY J:   No, you have great experience in the way the Court of Appeal in criminal matters proceeds and I just feel a little disquiet about ‑ ‑ ‑

MR WILD:   I suspect your Honour is right, with the greatest respect, and that, in fact, some means would be found to do so.  Can I deal in the time I have quickly with the primary submissions that are made today because it is our submission that they do not go anywhere in any event.  Despite the fact that his Honour Justice Southwood took a different view as to the way in which the exercise of the discretion occurred, it overlooks, in our submission, with the way in which the primary judge dealt with the sentencing exercise. 

If can just take you to page 15 of the application book – this is a convenient way, I think, of demonstrating this – you will see an index to his Honour the Chief Justice’s sentencing remarks.  If you look at that, the first 30 pages dealt with technical matters and an introduction to the matters.  Then, if you get to page 41 in the index, “Matters Personal”, and the next 50 pages deal with matters personal to the accused and they arise in such a way that his Honour has already dealt with future probabilities and disagreed with a submission made by the Crown that he did not need to look at the whole of the 20 years, that he dealt with the matter at the outset, and he disagreed with that submission and in fact dealt with this man’s 20 years in prison and his progress towards rehabilitation throughout the whole of that period. 

He dealt with, in his course of his reasons – and there is a summary of them and findings at page 93 of the index which actually takes you to a different page, of course, in the application book, but if you go to the bottom numbers, you will find page 93 at page 106 of the application book, a number of findings he makes.  Those findings are as a result of a 20‑year examination of this man’s career and history.  They take into account, with respect, all of the sentencing criteria which Justice Southwood complains of as not having been taken into account.  In other words, the man’s character, the remorse, his age, his progress towards rehabilitation, all of those matters are dealt with in great detail by his Honour the sentencing judge and it is ‑ ‑ ‑

GUMMOW J:   Do you rely on what the sentencing judge says at page 30, paragraph [27]?

MR WILD:   Of the application book, your Honour?

GUMMOW J:   Yes, paragraph [27] of the judgment, page 30 of the application book, the heading “Sentencing Principles”.

MR WILD:   Yes, of course.  With respect, we do rely upon that because his Honour took into account the fact that this was a resentencing and he was resentencing the man – this was contrary to our submission – on the basis of what he had seen in 30 years.  He took a very dim view of the lack of remorse and other matters relevant to him. 

KIRBY J:   As against that the legislature has enacted the new statute ‑ ‑ ‑

MR WILD:   Indeed.

KIRBY J:   ‑ ‑ ‑ and it does not of itself give the person parole; it simply gives the person the opportunity of being considered by a parole board of citizens, and there are eight of them and they all have to be unanimous in the grant of parole.

MR WILD:   I accept that, your Honour.

KIRBY J:   I accept for my part the great care and thoroughness with which the Chief Justice approached the task, but the issue really in the short time we have is really only one, is there a question of disparity with the New South Wales Court of Criminal Appeal, is it a matter of legal importance, is it a matter of potential injustice?  If one takes those three criteria, it just seems to me to attract the consideration by the Court.  It is, after all, the natural life of a human being, a citizen of this country.

MR WILD:   Yes, your Honour.  It takes us back to the threshold question as to how we would give that consideration.  It is our submission that if you sent this matter ‑ ‑ ‑

KIRBY J:   And a dissenting judgment as well.

MR WILD:   Yes, but it is our submission if you sent this matter back today with answers yes and yes to my learned friend’s propositions, so he wins both questions after the Full Court resolve the matter, you get the same result because the facts are all there.  The facts establish that this man will and should not get parole.  That will be the end result of it, in our submission, so it is a wasted exercise in that sense.

Can I just finally deal with the issue of the New South Wales Court of Criminal Appeal.  That issue is separate to what we have been talking about and I should reveal that in case there is any misunderstanding.  The Court of Criminal Appeal said that the ultimate decision by the court should be one that is found beyond reasonable doubt.  All of the judges in the Northern Territory court disagreed with that having considered ‑ ‑ ‑

GUMMOW J:   They have all disagreed with that.

MR WILD:   Yes, the trial judge and the three in the Appeal Court, and they have considered it more carefully, with the greatest respect, that issue.  Olbrich deals with facts, not the ultimate disposition and the ultimate sentencing discretion, so our submission is that is not of any assistance to my learned friend or the Court in the ultimate argument.  If the Court pleases.

KIRBY J:   In prison the prison medical officer, Dr Wake, who has been looking at the prisoner since 1993, in the passage quoted by the Chief Justice expressed the view that he could not be described as a violent man in the time and circumstances that he has known him and he formed a favourable view of the applicant.  It is a question of whether you believe that human beings can redeem themselves and that the statute provides the vehicle of judicial consideration.

MR WILD:   Indeed, your Honour, and that consideration was undertaken by his Honour.  Mr Leach gave evidence in this matter, other witnesses gave evidence, and Mr Leach was not believed.

KIRBY J:   That is true, but we have a dissenting opinion of Justice Southwood ‑ ‑ ‑

MR WILD:   Not in respect of the factual issues, your Honour, with respect.

KIRBY J:   If they are on the legal issues, that is even more reason why we should look at them.

MR WILD:   Yes, I understand the way your Honour puts it.

GUMMOW J:   Yes, Mr Freckelton.

MR FRECKELTON:   Thank you.  Very briefly, it is paragraph [119] of Mr Justice Southwood that encapsulates a second time the concern articulated with the error of the learned Chief Justice and he itemises the matters which he concluded were not ‑ ‑ ‑

GUMMOW J:   Sorry, but what page of the application book?

MR FRECKELTON:   I am sorry, page 118 of the application book, paragraph [119], and he sums up his position there in terms of the fetter which he says was imposed by the learned Chief Justice upon the sentencing exercise and he identifies the matters which he regards as not having effectively been taken into account in the recent ‑ ‑ ‑

KIRBY J:   As I understand it, you say in your submissions that there is a disparity between the approach taken in this Court of Appeal and that of the Court of Criminal Appeal of New South Wales on similar legislation.  How would you describe that difference?

MR FRECKELTON:   We say that the Court of Criminal Appeal unqualifiedly endorses the proposition that general sentencing factors must be taken into account in respect of ‑ ‑ ‑

KIRBY J:   That is what they say in the headnote on merit and that is the Chief Judge at Common Law, Justice Wood, Justice Tobias and Justice Hidden.  Justice Hidden and the Chief Judge were very experienced criminal judges.

MR FRECKELTON:   Yes.

GUMMOW J:   After all, we are only construing a statute.  I do not think there is any magic in it.  Have you covered, in your draft notice of appeal, all that you need to cover?

MR FRECKELTON:   The other matter which we have not traversed in oral argument so far is the issue of the level of satisfaction required before the decision can be made.  In that regard, there is a discrepancy on this important matter between the New South Wales Court of Criminal Appeal and the Northern Territory court.  The New South Wales court says unequivocally that the level of satisfaction must be beyond reasonable doubt in so important a matter and they do so extrapolating from the reasoning in Olbrich.  My learned friend is right, Olbrich itself deals with facts, but the very essence of the Olbrich reasoning, we say, is that where a decision is being taken adverse to an accused person in respect of something so weighty as their liberty for the remainder of their life the level of satisfaction must be at a high level and there are different levels ‑ ‑ ‑

HAYNE J:   That proposition, if it be true, applies to every sentence regardless of its length, regardless of its impact on the accused.  If the proposition is true, a judge must always be satisfied beyond reasonable doubt of the sentence he or she imposes.

MR FRECKELTON:   No, your Honour.  The way we are putting it is in terms of a very specific proposition under this legislation and under the New South Wales equivalent.

GUMMOW J:   This is your 2.2 on page 195 in you draft notice, is it?

MR FRECKELTON:   Yes, it is.

GUMMOW J:   “[I]s not required to be satisfied beyond reasonable doubt”.

MR FRECKELTON:   And there is a complete discrepancy between what the Court of Criminal Appeal in New South Wales said in Merritt and what all three judges said in Leach in the Northern Territory.

GUMMOW J:   What is being applied here, the terms of some statute or the so‑called general principles?

MR FRECKELTON:   What we say, your Honour, is this ‑ ‑ ‑

GUMMOW J:   Where does this notion of beyond reasonable doubt come from?  Does it come out of the construction of some statute or does it come out of general considerations ‑ ‑ ‑

MR FRECKELTON:   It comes out of general principles.

GUMMOW J:   ‑ ‑ ‑ and if it comes out of general considerations, why is not Justice Hayne correct?

MR FRECKELTON:   Because the essence of Olbrich reasoning is that where an adverse decision is being made – and in that case, of course, it is to do with specific facts which are impacting in an aggravating manner upon sentence – the level of satisfaction must be beyond reasonable doubt.  Now, if that is so, where a piece of legislation stipulates that something must be the subject of satisfaction before a heinous result can follow, the most grave of results ‑ ‑ ‑

GUMMOW J:   So you are construing the statute it seems to me.

MR FRECKELTON:   Well, it is an interpretation of the statute.  What we are saying is ‑ ‑ ‑

GUMMOW J:   Well, that is what I am trying to get out of you.

MR FRECKELTON:   ‑ ‑ ‑ satisfaction in this context means satisfaction beyond reasonable doubt.

GUMMOW J:   So you are construing the word “if satisfied” in section 19(5)?

MR FRECKELTON:   Yes, and we say that Olbrich reasoning applied to that means that satisfaction in this circumstance also means satisfaction.

GUMMOW J:   The New South Wales court was construing similar words in its New South Wales legislation, was it not?

MR FRECKELTON:   In Merritt it was, yes, to all intents and purposes, exactly the same under section 61 of that legislation.

GUMMOW J:   All right, thank you.

MR FRECKELTON:   Thank you, your Honour.

GUMMOW J:   We will take a short adjournment.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

GUMMOW J:   There will be a grant of special leave in this matter.  It will be a one‑day appeal and ‑ ‑ ‑

KIRBY J:   You will no doubt reflect upon the matters that were raised during argument, Mr Freckelton.

MR FRECKELTON:   We certainly will, your Honour, thank you.

GUMMOW J:   We should now adjourn to enable the link to be established with Adelaide.

AT 10.41 AM THE MATTER WAS CONCLUDED