Leeth v The Queen; Kirk v The Queen; Kirk v The Queen; Donovan v The Queen

[1991] HCATrans 269

~

~ -~;4"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B29 of 1989

B e t w e e n -

RICHARD SHIERK LEETH

Applicant

and

TH_E __ _QUEEN

Respondent

Office of the Registry

Brisbane No B31 of 1989

B e t w e e n -

WILLIAM BRUCE KIRK

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B37 of 1989

B e t w e e n -

DALE STEWART KIRK

Applicant

arnd

THE QUEEN

Respondent

Leeth(2) 5 25/9/91

Office of the Registry

Brisbane No B38 of 1989

B e t w e e n -

PAUL JOSEPH DONOVAN

Applicant

and

THE QUEEN

Respondent

Applications for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 25 SEPTEMBER 1991, AT 9.47 A11

(Continued from 24/9/91)

Copyright in the High Court of Australia

Leeth(2) 6 25/9/91

MASON CJ: Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I, before proceeding to the

special leave application, seek to inter, as it

were, the special case question. The document

which appears at pages 21 to 26 is a retyped and

accurate version of the document initialled by

Your Honour the Chief Justice on 22 April this

year, and it is the document which, if I could just

add to that, the parties agree is the case stated.

MASON CJ: It should have been resubmitted for actual

signature. However, that step was not taken.

MR JACKSON:  Yes. I do not want, unless the Court wants me

to, to go through the communications that occurred.

MASON CJ:  No, there is no occasion for that.

MR JACKSON:  Your Honours, that is what I wanted to say in

relation to that matter.	May I then proceed to
deal with the application	for special leave in
respect of Leeth.

Your Honours, could I say one thing in

relation to that. Conscious of what was put to me

by Your Honour Justice Deane yesterday in relation

to the relationship between the sentence and the

non-parole period, and having a greater familiarity with a decision of the Court earlier this year than

I had at the time, may I say that we would seek to

amend the draft notice of appeal in one respect.

That would be - Your Honours, I am afraid I am not in a position to put it in a typed form, but we

would undertake to do so and to put in any

supplementary affidavit as soon as possible -

simply by adding another ground to the effect that

the Court of Criminal Appeal proceeded on the basis
that it did have power to fix a period during which
the appellant was not eligible for parole when it

had no such power.	The order sought would include
an order that the sentence be set aside.

Your Honours, may I proceed to deal with the

substance of the matter now. In addition to the

constitutional issue which is raised by the special

leave application - - - - -

MASON J:  Mr Jackson, I suppose we should offer the

respondent the opportunity of objecting to your

proposed amendment.

MR JACKSON:	Of course, Your Honour.
MR FLEMING:	I am still trying to think through the

consequences of the amendment, Your Honours.	I
suspect that it is a review, in fact, of what

Leeth(2) 25/9/91

Mr Justice Connolly did in respect of the original

sentence by Mr Justice de Jersey. Justice de

Jersey in fact recommended a non-parole period and then the Court of Criminal Appeal said, "Well, that is, in effect, equivalent to fixing a non-parole period", and then, under section 4(1), actually fixed a non-parole period. If it is a review of that, then we will not object to the amendment.

MASON J: Thank you, Mr Fleming. It is all a rather

hypothetical exercise at this stage, anyhow, Mr

Jackson, because we are talking about a proposed

notice of appeal, not an actual notice of appeal,

although if the matter proceeded to the end stage

that you wanted, technically speaking you ought to

have a notice of appeal.

MR JACKSON: Yes, Your Honour. Could I say that in order

that there may be no question about the point I am

seeking to make in relation to the matter

immediately under discussion, what we would be

by reference to considerations which were

seeking to do is to say that if what the Court of period

not germane, and by that I mean - I am sorry, I am

putting it badly, Your Honours - if it had no power

to fix a non-parole period, then the result should

be that the sentence would go and the applicant

should then be remitted to the Court of Criminal

Appeal for re-sentencing.

Your Honours, apart from the constitutional

issue that is raised, the point which it is

submitted merits the grant of special leave
concerns the manner of taking into account what I

could describe shortly as being comparable

sentences, and I will come to the parts of the

record in just a moment. But the Court will see

that in this case what was taken into account was

the fact that sentences in New South Wales dated

from the time of going into custody rather than

from the date of sentencing but what was not taken

into account was that a non-parole period in New

South Wales meant, in reality, a much shorter

period than an equivalent non-parole period in

Queensland or might mean, in reality, a much

shorter period.

Your Honours, may I seek to go, and I can do

so quite briefly, to the reasons of the Court of

Criminal Appeal, to seek to make out those

propositions. The commencing point, Your Honours,

is at page 270 of the large application book, and

commencing at line 11, Mr Justice Connolly, whose

judgment was the judgment of the Court of Criminal

Appeal, said that it was:

Leeth(2) 8 25/9/91

proper to have regard to comparable sentences

imposed by Courts exercising Federal

jurisdiction elsewhere in the Commonwealth. And then, Your Honours, at about line 40 on the same page, referred to what had been done by the

primary judge. He:

first dealt with Leeth.

then, Your Honours, at about line 50 he referred to

the "importation", which is the subject of the

sentence in question and, Your Honours, if one

moves then to page 274, at the top of the page,

quoting from the primary judge on matters on which

His Honour agreed with the primary judge,

His Honour said, at about line 4, in the passage

going from line 4 to line 12 or line 13, he

referred to the seriousness of the offences, and

then, Your Honours, again at line 29 on the same

page, in the sentence commencing:

In the 1986 import -

going through to about line 39, and he said, at

about lines 36 to 37:

On the view I take, your -

meaning, Leeth's -

overall criminal activity has substantially

exceeded that of your co-prisoners.

Your Honours, at the next page, page 275, in the passage between lines 21 and 49, His Honour sets

out the four features which have been treated as

being significant by the primary judge.

Now, Your Honours, that is, in a sense, by way

of introduction.

important features. In the passage, Your Honours, Then at page 276 one sees the

commencing at line 18 and going through to line 31,

His Honour notes the fact that in sentencing in New

South Wales:

a non-parole period was fixed -

but sentences ran:

from the date the offender was taken into

custody, whereas in Queensland they run, of
course, from the date the sentence is

pronounced.

Leeth(2) 9 25/9/91

Then, Your Honours, His Honour says in the passage which commences at line 31 and goes to the bottom

of the page that:

It follows that the most direct way of

comparing a sentence imposed in New South

Wales with one imposed in Queensland is to

look at the minimum time the offender must

spend in custody pursuant to. the sentence of

the Court, coupled, in the case of Queensland,

to the time spent in custody awaiting trial.

If one compares the head sentences one has to

adjust the period spent in custody -

and so on.

Your Honours, at the top of the next page he

sets out the sentences said to be comparable to

which reference was made and there are two of them

potentially germane. One is that of Cornwell and

the other is that of Bull, the two appearing about

one-third of the way down the page, and

particularly Cornwell. Your Honours, in respect of

Cornwell the head sentence was 23 years, the

minimum term 14 years.

Your Honours, at page 277 at about line 39, His Honour said:

The case which seems most comparable with the present is that involving Cornwell and Bull.

And at page 278 he proceeded to discuss relativity.

It commences at line 19, Your Honours, and said:

When one compares the sentence imposed on

Leeth with the sentence imposed on Cornwell it is apparent that Leeth must serve 15 and one

half years in custody from the date of his

apprehension until he can be released on

parole.

What His Honour meant by that was that the sentence

imposed by the primary judge was a sentence of
25 years, a 14 year non-parole period, and he had
at the time of sentencing already been in custody
for a period of a year and a half. That is where
the 15 and a half years comes from.

Now, Your Honours, he then discusses the other convicted persons, and if I could pass over that

and go to line 49 on the same page, he said:

The Crown contended that the 15 and one half

years minimum which will result for Leeth was

justified compared with the 14 years minimum

Leeth(2) 10 25/9/91

imposed on Cornwell because Leeth was a party

to three distinct major offences.

He then discounted that proposition.

Your Honours, he then at page 281, if I could

go to that, at about line 10, said:

It follows ..... the sentence imposed upon Leeth

should be varied by deleting the

recommendation and by fixing a period during

which he is not to be eligible to be released

on parole.

If one were to apply Cornwell directly,

Leeth's non-parole period would be twelve and

one half years -

and he explained the reason for that. Then,

Your Honours, in a passage which seems, in the end,

not to apply to Leeth - and, Your Honours, I

express a degree of hesitation in the way I express

it because what is said in terms by His Honour in

the remainder of the page is not consistent with

the result that was arrived at by the Court of

Criminal Appeal; and it seems probable that two

things occurred: one is that the passage to which

I am about to refer applies to the applicants other

than Leeth; the second is that the reference to

"sentences" is probably or, perhaps, may be a

reference to the non-parole period.

Your Honours, having made that prefatory

statement, if I may, can I go then to page 281,

commencing at about line 33. His Honour said:

The discrepancy which is apparent when one

considers these figures leads me to the view

that either insufficient regard has been had
to the period each prisoner was in custody

awaiting trial or that it was insufficiently

understood that the New South Wales sentences
ran from the date of apprehension.	To that

extent, as it seems to me, the sentencing

discretion has miscarried. I would therefore

vary these sentences by reducing them by the

period of 18 months each applicant was in

prison awaiting trial.

What he seems to be referring to, when he speaks of

a discrepancy, is the result of the calculation

earlier referred to in the same paragraph.

Your Honours, I have to confess to having some

difficulty with the passage and not entirely

understanding what it means but it seems to be, in

the light of the earlier part of the page, a

Leeth(2) 11 25/9/91

reference to what happened to the accused, other

than Leeth.

But, Your Honours, if one looks at page 281,

about line 20, what one does see is that the court

was applying or seeking to apply Cornwell's case

directly to Leeth and, in fact, that is the result

that followed.

Your Honours, the result is at page 284 in a

passage commencing at line 22, where His Honour

said he would:

grant leave to appeal in the -

several cases. He -

would allow the appeal in each case to the

extent of deleting the recommendation in the

case of Leeth and would fix a term of twelve

and one half years imprisonment during which

he is not to be eligible to be released on

parole.

Now, Your Honours, there was before the Court of

Criminal Appeal a document which showed that the actual sentence to be served by Cornwell would be likely to be much less. That document is a

document which appears at page 219. Now,

Your Honours, may I say a couple of introductory

things about it because it has, in fact, a more

messy aspect in looks than in fact is the case.

It is described as exhibit 10 in the record.

In fact another document seems to have been

exhibit 10, but this document was certainly before

the primary judge, and in an affidavit which is

made by Mr Bailey he deposes to the fact that the

document was also before the Court of Criminal

Appeal and was relied on by counsel at the time.

What it was was a document that did two

things: the first was that it discussed the

application of the New South Wales system, if I

could put it shortly, to two persons, Lewis and

Anderson, who had also been involved in the same

transactions but who were dealt with in New South

Wales. But it also set out at the pages which are

221 and 222, a short summary of the approach taken

in relation to remissioni and so on in New South

Wales. Now, Your Honours will see the manner in which remissions were calculated, dealt with, in

effect, in the first half of page 221.

BRENNAN J:  Mr Jackson, at page 276 Mr Justice Connolly

spoke of comparable sentences which would be

served:

Leeth(2) 12 25/9/91

pursuant to the sentence of the Court.

MR JACKSON:  Yes, Your Honour.

BRENNAN J: In other words, as I read His Honour, he was

saying one looks at what the judge said, not what

happens under remissions or otherwise?

MR JACKSON:	Your Honour, I do not dispute that.
BRENNAN J:	Your proposition is that that is not a proper

basis of doing it?

MR JACKSON:  Your Honour, what I am submitting is this:

that would be a proper basis of doing it if one

were comparing like with like, but if what one is

comparing is not like with like, it is not proper.

Now, Your Honour, having said that, may I explain

what I mean by that?

If one had a system where the non-parole

period where a sentence of, say, 25 years with a 14

year non-parole period meant, in the States that

were being compared, that the person who was

convicted would serve a minimum of 14 years, and

that there might be remissions on the head sentence

but not on the non-parole period, then the

comparison is one which might entirely fairly be

made.

If, on the other hand, what one is looking at is a circumstance where, in the State that is being

compared, the 14 years non-parole period is not one

that is fixed, what one would be entitled to look at, and should look at, in our submission, is not

merely the number of years that the non-parole

period is fixed for but also the possibility that

that period would be, in fact, reduced.

Now, Your Honour, one cannot, of course, say

that it would be reduced in a particular case, but

if one is comparing 14 years minimum fixed with 14

years that might reduce to, say, eight and a half,

one should bear in the mind the factor that the

latter one is capable of reduction, in making the

comparison.

TOOHEY J: It just seems curious that the sentence imposed

on a particular offender, one offender in New South

Wales, should have become such a dominating

consideration in the fixing of the sentence imposed

on your client.

MR JACKSON: Well, Your Honour, if I can put it this way,

that happens, one of the reasons being similarity

of cases and, Your Honour, the fact that persons

are involved in the same or similar transactions or

Leeth(2) 13 25/9/91

like transactions, and the general desirability,

one would think - particularly, without going over sentencing, uniformity of applications of sentencing throughout Australia in relation to offences that are similar.

the ground of yesterday, in relation to

TOOHEY J:  I can understand it if is is being used for some

sort of guide, but here it seems to have been

almost applied as a mathematical formula.

MR JACKSON:  Your Honour, that may just have been the way in

which the case was conducted, in effect, before the

Court of Criminal appeal and the primary judge, in

a sense, if one bears in mind that one is dealing

with an offence for which the maximum term of

imprisonment was life. So, somewhere along the

line there has to be an endeavour to find what is

an appropriate sentence in the particular case.

One looks to see the range of sentences that have been imposed and Your Honours see a table, in

effect, set out. Now, in relation to that, what is

then said is, "Well, this is a case which is most

like so-and-so", and if there is perhaps no great

argument about that, the court is entitled to take

a view that the two cases really are comparable.

Once they are comparable, Your Honour, there is no

really great reason for adopting a different view
in respect of the second one just because a view is

taken that it might have been a year longer or a

year shorter or something like that.

Your Honour, sometimes these things are

expressed in a shorthand way, of course, and

reflect the way in which the case is conducted

before the court.

BRENNAN J:  Mr Jackson, if your argument is correct, at the

end of the day, if this Court thought, looking at

these sentences, 12 and a half years for this as a

minimum, it should not be any less. It does not

matter which way the Court got at it surely.

MR JACKSON: Well, Your Honour, that would be a matter for

the Court, if the Court were to take that view,

yes.

BRENNAN J: It seems a curious proposition to say that 12

and a half years is open to challenge because, for

example, gaols in some States are overburdened and

therefore the executive has introduced regulations

for letting people out early.

MR JACKSON:  Your Honour, what one is looking at in the

first place, I suppose, in determining whether to

grant special leave is whether the case gives rise

Leeth(2) 14 25/9/91

to some error of principle or whether it was

sufficiently unjust. Now, in relation to the

second of those, Your Honour, I would not really

debate the proposition that Your Honour is putting

to me, I think.

In relation to the first, no doubt, that is a

matter which might militate against the grant in

the end of special leave but, Your Honour, if the

case is one that does seem to raise an issue of

principle and if it is a question of the propriety

of sentencing, and if what one does see is that in

cases regarded by the court from which the appeal

is sought to be brought as being comparable, there
is a significant discrepancy, then the appropriate

course, in our submission, would be for the Court

to entertain the appeal but not itself to determine

the question of sentence and remit it to the Court
of Criminal Appeal in order that that court might
take into consideration the matters mentioned by

the Court.

DAWSON J: But the incomparability which you are suggesting

is based entirely on the fact that there are

remissions which may reduce the non-parole period

in New South Wales, is that right?

MR JACKSON: That there is a provision for remissions in New

South Wales?

DAWSON J:	Yes.
MR JACKSON:	Your Honour, that is what gives rise to the point and it arises directly because of the
approach taken by the court in the court below.
DAWSON J:	May I take up the point that Justice Brennan made. It used to be the accepted view, and there
is some logic about it, that remissions have
nothing to do with punishment.  A judge imposes a
sentence, imposes punishment, but remissions are an
administrative matter and they are not directed to
punishment. 1hey are directed to a reward for good
behaviour and they are viewed as an incentive for
the man to behave himself while in gaol and it
would be wrong on that basis to take them into
account when comparing them.

MR JACKSON: Well, Your Honour, they can be given for the

Queen's Birthday too, of course.

DAWSON J: Yes.

MR JACKSON:  They can be given for any reason.

Leeth(2) 15 25/9/91

DAWSON J: 

They have got nothing to do with punishment and

what the court was concerned with is punishment,
appropriate punishment.

MR JACKSON: 

Your Honour, it depends on what one means by

punishment, but may I come back to that?

DAWSON J:	One does not mean rewards for good behaviour.
MR JACKSON:	Your Honour, things do not always just have one

face. Of course, rewards for good behaviour may

also be regarded as something that would not occur

if one did not behave well.

DAWSON J: That is why I was seeking to find out what the

situation was in New South Wales. When remissions

became as of right, of course, that puts a

different complexion on the matter but you were

putting it on the basis that they were a matter of

discretion - - -

MR JACKSON:  I am sorry, Your Honour, I do not think I was,

with respect.

DAWSON J: Are they a matter of right in New South Wales?

MR JACKSON:	Yes, Your Honour.
GAUDRON J:	They can, however, be lost.
MR JACKSON:	Yes.
GAUDRON J:	They are automatic and then subject to being

lost, but is that still the position? Are

non-parole periods still fixed on the basis that

they are subject to remissions in New South Wales

or has that altered?

MR JACKSON:  Your Honour, may I have that checked before I

answer that because the situation has changed a

number of times?

GAUDRON J: Yes.

MR JACKSON:  Your Honour, may I say two things. The

ultimate question is, Your Honour, in terms of
sentencing, of imposing a sentence, it is entirely

appropriate, we would submit, Your Honour, not to

take into account that the person who is being

sentenced may be entitled to remissions on the

sentence that is imposed, be that the head sentence or the non-parole period, and a court, for example,

should not endeavour to impose a higher sentence so

that there will be a longer non-parole period or

take into account the fact that there will be

remissions which will probably bring it back to

Leeth(2) 16 25/9/91

what the judge thought in the first place. But,

Your Honour, having said all that - - -

DAWSON J: Well, could I ask that? Did they, at the

relevant time, take remissions into account in

fixing sentence in New South Wales?

MR JACKSON:  Your Honour, not in fixing the sentence,

Your Honour. Not in fixing the sentence; not in

fixing the non-parole period, but that is not quite

the point that I am seeking to make. What I am

seeking to make, Your Honour, is this: that if one

is looking to see what is the appropriate

non-parole period to be applied in a particular

case and the approach that is taken is to say,

"Well, let us compare the non-parole period that

has been applied to a person in a similar situation

for a similar offence in another part of the

Commonwealth", that is a perfectly appropriate

thing to do.

However, in making that comparison one has to

bear in mind that what is being compared on the one

hand is a non-parole period which is incapable of

being reduced with a non-parole period which is

capable of being reduced. And, Your Honour, the

point I am seeking to make is simply that one has

to take into account the fact that the comparison

being made is a fixed thing with a maximum.

DAWSON J:  I have difficulty with that. What you are

comparing is what the judge did in each case.

MR JACKSON:  Your Honour, I accept that too, but that it is

a question of what that carries with it.

DAWSON J: It does not carry anything else with it.

MR JACKSON: Well, Your Honour, a judge sentencing a person

to a non-parole period of 14 years in New South

Wales is sentencing a person to a non-parole period

which will be a maximum of 14 years. A judge

sentencing a person to a non-parole period of

14 years in Queensland was sentencing a person to a

period which could not be reduced.

DAWSON J: Yes, but what the judge in New South Wales was

doing was fixing a period which was the minimum

period which that man should remain in gaol.	Now,
if there is some administrative decision which
affects that, that is for the administration.	But

so far as the judge's determination is concerned,

that is the minimum period before which the

community would not stand that person being let

out.

Leeth(2) 17 25/9/91

MR JACKSON:	Your Honour, be the capacity to reduce the period of the non-parole period administrative or
legislative, does not really matter for present
purposes.  The point that I am seeking to make is,
and I accept its narrowness, that if one is looking
to see what penalty was imposed on that person, it is not an accurate rendition of it to say the
penalty that was imposed was a 14 year non-parole period unless one examines what is meant by the concept of non-parole period.

DAWSON J: Well, that is what I find difficulty with.

MR JACKSON: Well, Your Honour, and I do not mean to sound

the slightest degree offensive, but the approach
taken by Your Honour treats a label as defining the

content of it, with respect.

DEANE J: Well, not really. The approach taken by

His Honour accords very closely with what this

Court said in Hoare, 167 CLR.

MR JACKSON:  Your Honour, I accept entirely that one has to

treat non-parole periods as things that are fixed

by the sentencing judge and that have a content

defined by State law. But the point I am seeking

to make is, as I said before, if one is to look at,

by way of imposing a non-parole period on a person

in a particular jurisdiction, to look at what is

done in another place, then it is not sufficient

just to say it is the non-parole period.

Your Honours, could I just say one or two more

things: if one looks at the position in the

various States - it is contained in the

supplementary appeal book; a sufficient summary of

it appears perhaps in our outline of submissions.

GAUDRON J:  Mr Jackson, can I ask you, did it at some stage

happen that the courts in New South Wales were
required to take remissions into account in fixing

a non-parole period?

MR JACKSON:  Your Honour, I thought the answer to that was

no, they were not required to take then into

account. May I perhaps have that checked? If

there is any change in that, perhaps I can let the

Court know.

TOOHEY J: But, in a practical sense they would, would they

not? I mean, it is not much point in fixing a

non-parole period that so far outstrips the periods

that might be served if remissions provided that it

serves no useful purpose. In that sense -

MR JACKSON:  In that sense, Your Honour, of course.

Leeth(2) 18 25/9/91

TOOHEY J:  - - -judges had, at least unconsciously, some

relationship between the two.

MR JACKSON:  Your Honour, I accept that there is no - it is

possible, of course, also, to have - Your Honour

may be putting to me that, in a sense, maybe the

observe and that is that it would be possible

theoretically to fix a non-parole period that was

so long that remissions - the period of the head

sentence was remitted below that.

BRENNAN J:  Was a judge in New South Wales at this time

entitled to take into account the remissions in

fixing a non-parole period?

MR JACKSON:  Your Honour, I think that was what I was

endeavouring to answer Justice Gaudron by. The

answer, I think, is that the judge was entitled,

really, for the limited purpose that I was
answering Your Honour Mr Justice Toohey in relation

to take it into account.

BRENNAN J:	Any cases which deal with it?
MR JACKSON:	Your Honour, not that I am aware of.
GAUDRON J:	I think there was a case in the Court of

Criminal Appeal immediately following the

application of remissions to non-parole periods.

My recollection is that there was a case decided

immediately following the application of remissions

to non-parole periods which said sentences should

not, on that account, or non-parole periods should

not, on that account, be increased.

MR JACKSON:	Your Honour, perhaps I could check that.
DEANE J:	Mr Jackson, in Hoare, at page 357 and the

following pages the Court explained the

circumstances in which regard could be had to

possible remissions in fixing a non-parole period,

but it was for very limited purposes.

MR JACKSON:  Your Honour, that case, in our submission, does

not touch the ultimate point involved in this case, that if a court does have regard to a sentence that is imposed the court should look to see what the

sentence means and through Your Honours, states no

more than that.

MASON CJ:  I think that message has finally got through.

Whether it has fallen on fertile ground is another

matter.

MR JACKSON: Your Honour, the - - - - -

Leeth(2) 19 25/9/91

DEANE J:  One problem, of course, is whether when the

theory of remissions, as distinct from the practice

in New South Wales, was that they were for good

conduct or excellence or something else, should the judge in Queensland assume that the person is going

to be of good conduct?

MR JACKSON:  Your Honour, all that can be said really is

that it cannot be assumed the person will be of

good conduct or of bad. One should take into

account the fact that the non-parole period is of a

different quality from that imposed under the

legislation of Queensland.

Your Honour, I do not think I can say anything

further in support of the application.

MASON CJ: Yes, thank you, Mr Jackson. Now Mr McMillan, I

think you are next in line.

MR McMILLAN:  My submissions outline is before the Court, I

understand.

MASON CJ:  We have read the outline?

MR McMILLAN:  Thank you, Your Honour. The ground has

certainly been tilled by my learned friend, Mr

Jackson, and the essential point which I seek to

put before the Court has certainly been underlined

by him. Unless there is anything further the Court

wishes to hear from me, because essentially it is

the same point that we wish to put before the

Court.

DEANE J:  What happens to your application if Mr Jackson

succeeds on yesterday's case?

MR McMILLAN:  If the Act is found to be invalid, in so far

as section 4 is concerned, then the sentences are

nugatory. The matter will have to go back to the

Court of Criminal Appeal in Queensland.

DEANE J:  I had not appreciated. You also rely on

invalidity of section 4(1), do you?

MR McMILLAN:  Yes.

DEANE J:  Where does that appear? I have not seen it.

MR McMILLAN: That is in the notice - that is in the

proposed grounds of appeal, sir, in the amended

notice of appeal. It is not in the book. It was

filed in, I understand, June 1990.

DEANE J: That explains why I was not conscious of it.

Leeth(2)	20	25/9/91
MR McMILLAN:	A separate document, yes.	But, in any event,

it does not really matter because if the ground of

appeal which I seek to raise is as contained in the

appeal book, but Mr Jackson's application is

successful, the same result flows, because if the

Act is invalid - - -

DEANE J:  Where is the ground of appeal that you are talking

about?

MR McMILLAN:  The ground of appeal will be found at

page 319, draft notice of appeal, paragraph 2 of

that document.

DEANE J:  What page was that?

MR McMILLAN:  Page 319, Your Honour. I have a copy of an

amended notice of appeal which was filed, as I

understand it, in June last year, June 1990.

DEANE J:  The one on page 319 to 320 seems to have nothing

to do with what I was asking you about.

MR McMILLAN:  Does not raise the validity. That is so.

DEANE J:	Which is why I asked you.
MR McMILLAN:	Yes, but there is an amended notice of appeal.
MASON CJ:	And you said it was filed in June 1990.
MR McMILLAN:	So I understand it, Your Honour.

MASON CJ: Well, why is it not in the book?

MR McMILLAN:  I am afraid I cannot answer, Your Honour. The

inquiries I made were that the document had been

filed, it should have been with the papers.

MASON CJ:  But did those instructing you look at the book to

see whether all the relevant documents were in it?

MR McMILLAN: Well, inquiries which I instituted indicated

that it would be with the papers, Your Honour.

MASON CJ:	But it should be in the book.
BRENNAN J:	Well there is a certificate at the end of the

book saying that they have checked the transcript and found to be correct. I would think that that would relate to the documents in the book.

MR McMILLAN:  I accept that, Your Honour. It is certainly

an oversight on those who prepared the book on

behalf of the applicant.

Leeth(2) 21 25/9/91

BRENNAN J: Well, did they provide you with copies of the

amended ground of appeal?

MR McMILLAN:  I will certainly make copies available to the

Court.

MASON CJ:  Have you seen the amended ground of appeal?

MR McMILLAN:  Yes. I do. I have got a copy before me,

Your Honour, but I have only got the one copy.

MASON CJ:  You had better provide us with a copy of it.

MR McMILLAN:  I can hand up my copy. I do apologize for

this.

MASON CJ: Well, it seems astonishing to me, Mr McMillan,

that is all I can say, quite astonishing.

MR McMILLAN:  I am informed, Your Honours, that the amended

notice of appeal went in, was filed after the books

were prepared and it was intended that it would be

with the papers that would be placed before and, once again, I apologize for the oversight, but all we have done there is to pick up the invalidity

ground which was argued yesterday - - -

DEANE J: You have answered my query. Just for the order of

proceedings, am I correct that the submissions in

relation to the things in your written submissions

only arise for consideration if Mr Jackson fails on

his attack on the validity of section 4(1)?

MR McMILLAN: That is so, Your Honour.

MASON CJ:  Now, Mr McMillan, I am told that this amended

notice of appeal was filed on 17 September this

year.

MR McMILLAN:  I am sorry, Your Honour, I was not aware of

that.	I was informed otherwise and I would
apologize.	I was certainly informed it was quite

some time ago. It was certainly - - -

MASON CJ: If my information be right, it seems

extraordinary that there should be such a lapse of

time between June 1990 and September this year.

MR McMILLAN: Certainly, Your Honour, there is nothing more

I can say. I am instructed that the notes on my

instructing solicitor's file show a date in 1990,

Your Honour.

MASON CJ:	We will look into it.
MR McMILLAN:	Yes, Your Honour.

Leeth(2) 22 25/9/91

MASON CJ: That is all you have to say -

MR McMILLAN: That is all I have to say, yes, Your Honour.

MASON CJ: Very well. Yes, Mr Rafter.

MR RAFTER:  May it please the Court. I have provided the

Court with a written outline of submissions as well and, in respect of my client, William Bruce Kirk, I

am content to rely upon the submissions that my

learned friends have made, together with the

written outline. I do not think that there is

anything that I can usefully add to what is in the

written outline and my learned friends'

submissions.

MASON CJ:	Thank you.
DEANE J:	What about your notice of appeal?

MR RAFTER: There has been an amended notice of appeal gone

in in respect of this applicant as well, but - - -

DEANE J: Well, have we seen it?

MR RAFTER:  - - - the only ground relied upon by me is in

fact ground 2A in the amended notice, but is in

identical terms to the one in the application book.

DEANE J:  What page is that, Mr Rafter?

MR RAFTER:  It is on page 319, Your Honour. The ground is

ground 2(i) on page 319. As I say, although an

amended notice went in, the ground relied upon by

this applicant is that in ground 2A of the amended

notice.

DEANE J: But what if Mr Jackson succeeds in his attack on

section 4(1)?

MR RAFTER:  Then, in my respectful submission, this

application should be allowed and the matter of

sentence remitted to the Court of Criminal Appeal.

DEANE J:  But what tells us that you make such an

application?

MR RAFTER: Well, the amended notice which, I apologize, in

my case is not in the book as well, has identical

grounds to Mr McMillan's, but which I had not

proposed to rely on, but if the Court does find the

legislation invalid then, in my respectful

submission, the interests of justice require the

sentence be reconsidered by the Court of Criminal

Appeal.

Leeth(2) 23 25/9/91

DEANE J: But you would need to tell us what your client

relies on and, I suppose, in answer to my questions

you have told us, but otherwise we would not have

known what your client wanted.

MR RAFTER:  No, quite.

DEANE J: But there is an amended notice of appeal which

does ask that in the event that Mr Jackson succeeds

in the constitutional challenge, your client's

sentence be quashed on the basis that the court has

sentenced on a wrong understanding of the law, is

that so?

MR RAFTER:  Grounds 2A and 2B in the amended notice are

identical to the ones Mr McMillan handed to the

Court just a few moments ago.

DEANE J:  And they attack the sentence as well as the

non-parole period?

MR RAFTER:  They do, yes, Your Honour.

DEANE J: That answers my query.

MR RAFTER:  I should indicate that I had indicated to my

learned friends who appear for the Director of Public Prosecutions that I had not intended to

raise any argument before the Court myself in
respect of the invalidity. In other words, we were not joining in Mr Jackson's argument yesterday, but in the circumstances of the case, in my submission,

if Mr Jackson does succeed, then the matter of

sentence here in this applicant's case should be

remitted to the Court of Criminal Appeal.

TOOHEY J:  I am not clear, Mr Rafter. Are you saying that

there is an amended notice of appeal in the case of

your client that has been filed, or one that you

anticipate will be filed?

MR RAFTER:  I am sorry, Your Honour. I am in the same

position as Mr McMillan in that respect, and I

understood that my notice went in at the same time

as his.

MASON CJ:  Mr Rafter, I do not know about your notice of

appeal but I have now been informed that

Mr McMillan is more correct than the information

that I had before. The notice of appeal in his

case was filed not in June of 1990, but it was

filed in September of 1990. But I am not in a

position to say whether your notice of appeal has

been filed or not.

MR RAFTER:  Mr McMillan and I are instructed by the same

office, so I would expect that the notices went in

Leeth(2) 24 25/9/91

at the same time, and that accords with my

understanding of what occurred.

MASON CJ:  Thank you, Mr Rafter. Yes, Mr Alcorn.

MR ALCORN:	May it please the Court, I appear for the applicant, Donovan, and the Court has a written
outline of my submissions. I, too, am in exactly
the same position as my learned f,riends,
Mr McMillan and Mr Rafter, so far·as the applicant,
Donovan, is concerned, and that applies to the
amended notice of appeal.

MASON CJ: But does it follow exactly the same terms as

Mr McMillan's amended notice of appeal?

MR ALCORN: It does, Your Honour.

MASON CJ: In terms of 2A and what follows?

MR ALCORN:  It does, Your Honour, yes. On that basis I

really cannot advance anything further than the

matters advanced by my learned friends.

MASON CJ: Yes, thank you. The Court will take a short

adjournment to consider the course it will take in

this matter.

AT 10.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.47 AM:

MASON CJ:  Mr Fleming, in the event that Mr Jackson's

constitutional challenge succeeds, we would want to

hear you; but in the event that it fails, we need

not trouble you.

MR FLEMING:  Yes, thank you, Your Honour. I am not sure

where that leaves me just at this moment.

MASON CJ:	Now, is there anything you want to say?
MR FLEMING:	I certainly want to say something in respect of the issues other than the constitutional issues,
yes. Only in one respect and that is in respect of the sentence. My learned friend has suggested that the whole sentence, in fact, ought to disappear and
it be sent back to the CCA. His challenge has been
against section 4 of the Commonwealth Prisoners Act
which deals only with the non-parole period. The
head sentence has been fixed in accordance with the

Leeth(2) 25 25/9/91

Customs Act, section 235. That would remain in

place and the only thing that would be reviewable,

in fact, would be the non-parole period which is

the subject of section 4(1). And that would be the

only point we would wish to make in relation to

that.

DEANE J: If the trial judge or the Court of Criminal Appeal

imposed a sentence in the context of a mistaken

belief that he was also fixing a non-parole period,

would not the whole sentencing process have

miscarried? I mean, the head sentence was not a

mandatory sentence, was it?

MR FLEMING:  No, it was not a mandatory sentence. But we

would say not, Your Honour, because the sentencing

process - and I do not want to make an artificial

distinction here but there are in fact two steps

that have to be taken in the first process and that

is, firstly, fixing the head sentence and then

applying section 4 to the sentence, and it is only

that second limb which, we would submit, has

miscarried.

DEANE J: But surely availability of parole is a relevant

factor when you come to considerations relating to

the mitigation of what would otherwise be the

appropriate head sentence?

MR FLEMING: Yes, Your Honour. I really cannot say more

than that than what I have said.	Thank you,
Your Honours.

MASON CJ:  Thank you, Mr Fleming. Now, there is one other

aspect of this matter that I suppose should perhaps

be of some concern to the Court. The Court notes

that in these four applications for special leave

four counsel have appeared, in three of them, at

least, instructed by the Public Defender. Now, in

the last three applications counsel did no more than adopt the arguments that were presented by

Mr Jackson in the first application and, what is

more, a reading of the outline of submissions

indicated that there was that similarity before the

case was heard. Moreover, it does not seem that

the cases are such where there was a potential

conflict of interest. In those circumstances it

seems odd that separate counsel were instructed by

the Public Defender to appear in the last three

applications for special leave. I mention that in

case counsel wish to address any response to the

Court in the light of the comment I have made.	Do
you wish to say anything, Mr McMillan?

MR McMILLAN:  No, Your Honour, except this, that we did not

know, of course, the attitude which Mr Jackson

would take, the tone of his argument, and certainly

Leeth 26 25/9/91

we did not seek to take the time of the Court up on

the constitutional point because his outline was

well known to us beforehand. But I certainly take

Your Honour's point when the issues are the same

and the argument will be the same, but it became

apparent, during the course of Mr Jackson's

argument, that there was no need for us to trouble

the Court any further with further submissions.

DEANE J:  The real query that was being addressed was why,

in a case where the Public Defender is instructing,

should it have been necessary to have three lots of

counsel instead of one counsel appearing for all

three?

MR McMILLAN:	It is my understanding that that has always been a principle which the Public Defender's office
has taken, that where there are a number of
co-defendants or co-appellants, that they should be
separately represented.

MASON CJ: But why, unless there is a potential conflict of

interest?

MR McMILLAN: Well, I am not, of course, responsible for the

way the policy guidelines are laid down but I

understand it is a firm guideline and obviously the

briefing procedure was adopted in accordance with

those guidelines.

DEANE J: Well perhaps consideration could be given to the

guidelines so that the limited funds might be

available to help somebody else if they were - - -

MR McMILLAN: Certainly the comments which have been made by

the Court will be taken back and placed with the

appropriate authorities. Thank you.

MASON CJ:  Thank you, Mr McMillan. Do other counsel wish to

deal with that question?

Very well. The order that the Court will make

in each of these special leave applications is that
the application will stand over to a date which

will coincide with the date on which the Court

delivers judgment in the action, judgment being

reserved in the action yesterday.

AT 10.55 AM THE MATTER WAS ADJOURNED SINE DIE

Leeth(2) 27 25/9/91