Li v Chief of Army

[2013] HCATrans 260

[2013] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S162 of 2013

B e t w e e n -

TING LI

Appellant

and

CHIEF OF ARMY

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 OCTOBER 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, in that matter I appear with my learned friend, MR A.K. FLECKNOE-BROWN, for the appellant.  (instructed by Wyatt Attorneys)

MR S.B. LLOYD, SC:   May it please the Court, I appear for the Chief of Army with my learned friend, MS S.G. CALLAN.  (instructed by Clayton Utz)

FRENCH CJ:   Yes, Mr Street.

MR STREET:   Your Honours, if I may, I intend to make some brief opening remarks in relation to the nature of the appeal, and then to turn to the list of propositions and develop our argument first by taking your Honours to the legislation and then to the relevant passages we attack in the appeal books.

Could I start by indicating that this appeal involves consideration of two critical misdirections by the Judge Advocate to a restricted court martial in the trial and alleged determination of guilt of the appellant. The two critical misdirections concern the physical element and the concomitant fault element of an alleged offence under section 33(b) of the Defence Force Discipline Act 1982 (Cth). The Criminal Code (Cth) and the Defence Force Discipline Act required proper identification of both those elements for the determination of the alleged guilt of the appellant.  The correct identification of the physical element and the fault element involve the proper construction of the Commonwealth Criminal Code (Cth) and the Defence Force Discipline Act.

The matter of correct construction, we respectfully submit, involves consideration of three very important propositions; first, the right of all members of the Australian Defence Force to the same rights and freedoms enjoyed under the rule of law by all Australian citizens.  Secondly, the application of the freedom of speech as a fundamental right or freedom in resolving the competing potential construction issues that arise in this case, and the third proposition is that the maintenance of discipline in the Australian Defence Force necessarily requires recognition and application of their fundamental rights and freedoms in the same way as all Australian citizens.  The appellant respectfully submits that there would be nothing more detrimental to or more likely to undermine discipline of members of the Defence Force than to deny application of fundamental freedoms. 

FRENCH CJ:   Well, what is this?  Is this a foreshadowing of an application of principle of legality to the construction of the relevant provisions?

MR STREET:   Yes, your Honour.  As your Honour identified in Evans.

FRENCH CJ:   So, we are talking about construction.

MR STREET:   Yes, your Honour.

FRENCH CJ:   All right.

MR STREET:   In that regard, the application of principle in Evans. But, your Honour, can I just then turn in relation to what we say were the features in this case, and we say it essentially involves a verbal protest and confrontation that gave rise to the alleged offence and it was not of a kind at the serious end of the spectrum covered by section 33(b) in relation to creating a disturbance, and we respectfully submit that the events that gave rise to the alleged offence in the present case stem from a serious alleged departure from the ordinary standards of decency by an unacceptable and, we would say, in fact, unlawful racial slur.

CRENNAN J:   Mr Street, we are not a jury.

MR STREET:   No, your Honours.

CRENNAN J:   It would be helpful, to me anyway, I must say, if the notice of appeal could be understood in the context of the decision of the Full Court.  For example, it would be helpful to know whether grounds 1 and 2 of the notice of appeal to be found at 873 are intended to highlight the distinction between the majority’s decision at paragraph 57 and that of Justice Dowsett at paragraphs 122 and 135.  One looks at 122 on page 820, his Honour identified an error made by the Tribunal and his Honour said:

The fault element was the intention to create a disturbance.

His Honour went on at paragraph 135 to indicate that:

That question should have been determined by the panel.

That was the reason why his Honour proposed allowing the appeal and setting aside the decision.  Now, is your main point today that that process of reasoning is one which we should adopt?

MR STREET:   Yes, your Honour.

CRENNAN J:   Is that what is encapsulated in grounds 1 and 2 of the notice of appeal to be found on page eight hundred ‑ ‑ ‑ 

MR STREET:   Yes, your Honour.  Then the remaining grounds are the argument that was advanced and accepted by Justice Logan.

CRENNAN J:   So they are alternative to your main point which is that you would advance the reasoning of Justice Dowsett.

MR STREET: I do, your Honour, and that was the reasoning with which Justice Logan also agreed in relation to the fault element. Yes, your Honour. And in relation to that background all I was seeking to identify was the circumstances in which it arose but, your Honours, we respectfully submit that when one looks at what occurred in the present case this oral dispute which I think the appellant described as an argument between two blokes – it was part of his evidence – was not something that arose to the level of violence or breach of the peace involving damage to property or person of a kind to fall within the offence under section 33(b) as the second part of the way in which we put our case.

But, your Honours, having identified that could I, if I may, turn to first the charges identified before I take your Honours to the Criminal Code at page 41 in the appeal book.  That is the amended charge sheet that advances the allegations in relation to the alleged offence.  In that regard we contend that what is identified as those particulars is something that really does not rise much higher than the garden variety type of argument between two blokes and in circumstances where in the exercise of a freedom of speech someone might become heated, raised their voice and some may lose control and cry and some may lose control and shout but, in our respectful submission, this is not something that fell into the criminal end of the proper construction of 33(b).

Your Honours, can I turn if I may first to the Criminal Code to address the actual elements? Your Honours are well familiar with section 3.2 under the Criminal Code which identifies what is necessary for the determination of guilt and this chapter of the Criminal Code, Chapter 2, was applied by section 10 of the Defence Force Discipline Act, so that to determine that guilt what must be proved is the physical element or the fault element of the relevant offence.

In relation to section 4.1, your Honours would readily recognise that subsection (1) gives rise to reducing level of fault element from paragraph (a) into the category of (b) and (c).  Paragraph 4.1(1)(a) requires that there be proved a fault element under 5.6(1) of intention.  Paragraphs (b) and (c) cascade down and require a lower level of criminality in terms of proof in relation to 5.6(2).

GAGELER J:   Your primary position here is that you have two elements, one conduct and the other a result of conduct.  Is that right?

MR STREET:   Yes, your Honour, and the first way we put it is it is conduct, it is an act, or possibly a state of affairs, although the state of affairs probably applies to what I will call status offences.  So the first way that we would have said it primarily is advanced is as an act, being conduct, and therefore an intention is required under 5.6(1) and if that is not correct because your Honours find it does not consist only of conduct within the language of 5.6(1), then it is 5.6(2) that we would have said applied because it is a result of conduct.

GAGELER J:   I am looking at paragraph 115 of Justice Dowsett’s judgment and by reference to this first sentence ‑ ‑ ‑

MR STREET:   Yes, your Honour.

GAGELER J:   Is the way you put the case now that there is one physical element creating a disturbance?

MR STREET:   Yes, your Honour.

GAGELER J:   I think below it was put, on behalf of your client, that there were two physical elements, conduct and creating and the resulting disturbance.

MR STREET:   Your Honour, I think it was suggested that one might break up the “creates” and “a disturbance” into two elements, but that is the way we put it, your Honour.  It is one physical element, adopting what it is that Justice Dowsett has said.  In that regard, in our submission, that accords with, as your Honours will recall, I think it has taking part in “creating a disturbance” or taking part in “continuing a disturbance”, within the language of 33(b).  So there are three different types of elements that might be raised under the section.  Sorry, your Honour -

CRENNAN J:   Following Justice Gageler’s point to you, Mr Street, at paragraph 123 of Justice Dowsett’s judgment to be found on page 820 of the appeal book, his Honour refers to the way in which the matter was primarily argued and refers to the prime argument being:

that s 33(b) prescribes two physical elements, conduct and result, and two fault elements –

His Honour was doing this immediately after paragraph 122, to which I directed your attention just before, which is why I was anxious to ascertain whether grounds 1 and 2 of your notice of appeal are directed to seeking to persuade this Court to following the reasoning encapsulated in paragraph 122.  Now, are you going back into this idea that there are two physical elements and two fault elements?

MR STREET:   No, your Honour, I am sorry.

CRENNAN J:   Because I understood from what you said at the outset that this was really to do with an alternative argument which would raise the issue of recklessness.

MR STREET: Yes, your Honour. It was not intended to depart from what your Honour identified at section 122. In fact, as your Honours would appreciate, the offence under section 33(b) involves a number of physical elements, a physical element that he is a member of the Defence Force, a physical element as to public place or the location and concomitant fault elements with those physical elements and I was not seeking to depart from the way in which we put our case, and I think I have identified, is that in this, for the purpose of this charge creates a disturbance which is in essence what has been alleged in the charge where the charge says “created a disturbance”. “Creates a disturbance” in section 33(b) we say is the physical element which is, in our submission, conduct, and the first way we put it is it is an act, and the second way we put it is it is a result of conduct within section 4.1(1)(b).

FRENCH CJ:   So it is an act which has a certain character?

MR STREET:   Yes, your Honour.

FRENCH CJ:   “Disruptive of”, et cetera.

MR STREET:   Yes, but adopting the approach of this Court in balance, not giving a narrow meaning to “act” and in that regard we respectfully submit that is the act and that is the act in respect of which the requisite fault element, if that be so, it must follow, is that identified under section 5.6(1).

Your Honours, can I just touch a little bit further though upon what occurred when one looks at the judgments below and what occurred before the Judge Advocate because, still dealing with the Code, as your Honours would recognise, there is under subsection (2) of 4.1 the reference to:

conduct means an act, an omission to perform an act or a state of affairs –

but there is then in this Code another expression, which it is fair to say Justice Dowsett identified distracted the Judge Advocate, the Tribunal and also, we submit, the Full Court in its analysis of identifying the fault element and the conduct and the physical element.  That is the expression “engage in conduct”.  That expression “engage in conduct” is an expression that refers to a meaning when used in this Code.  That expression is actually used in another subparagraph in section 33.

If one goes to the Defence Force Discipline Act, one would see that in section 33(c) which is concerned with “obscene” conduct it actually does use the concept “engages in conduct”.  But those words are not what are used under paragraph (b) and it is apparent, in our respectful submission, that the analysis that was engaged in by the Judge Advocate used the expression several times that “the appellant engaged in conduct” in coming to the proposition, which we say was the misdirection on the fault element, that intention to create a disturbance was not necessary.  All that was necessary in essence was whether the appellant intended to engage in the relevant underlying particulars, if I can put it that way.

Your Honours, can I just complete the references in relation to the Criminal Code (Cth). Your Honours, the expression that one finds in relation to the fault elements, obviously under Division 5 they are set out and materially “recklessness” under 5.4 necessarily subsumes intention, knowledge as well as recklessness under 5.4(4).

Your Honours, can I then just turn to 5.6 for a moment because there are some other provisions that use a similar expression and I should just draw your Honours’ attention to it.  Section 5.6(1) obviously refers to:

a fault element for a physical element that consists only of conduct –

Those words “only of conduct” appear elsewhere in the Code, and I do not think it assists your Honours determining that issue, but they do appear in section 8.2(2) dealing with intoxication, and they also appear in section 8.4(5).  For completion, your Honours, in relation to the Criminal Code, I should identify that there are in fact provisions in the Code like section 104.22 that uses the language “engages in conduct”.

Your Honours, can I then go back to the Defence Force Discipline Act just to identify first of all, if I may, your Honours, the structure of the Act in relation to the offences. Your Honours will have seen that under Part III there are effectively – I think it is – there are 11 Divisions under Part III relating to offences. The relevant division with which we are concerned, your Honour, is Division 3, “Insubordination and violence” and there are 10 sections in that Division.

Your Honours, before I turn to that Division can I just identify for your Honours in section 3 there is in fact a definition of “engage in conduct”, so that where it is used in section 33(c) there is a definition consistent with, in essence, the Criminal Code.  Can I identify for your Honours – there is obviously the work done by section 3(15) in terms of the characterisation of the offences under this Act, but importantly, your Honour, under section 3(18):

The provisions of this Act in so far as they protect the individual are in addition to, and not in derogation of, any rights and freedoms of the individual –

Now, your Honours, we say that is an important provision but ‑ ‑ ‑

FRENCH CJ:   How does it feed into our task?  You really did not appreciate that when you opened and I am still not sure how you are using it.

MR STREET:   Your Honour, the freedom I was talking about was the freedom of speech and the freedom of speech in terms of common law freedom and then when one comes to two potential competing instructions, unless the words are clear or by lesser implication ‑ ‑ ‑

FRENCH CJ:   What is the construction that is informed by this provision?

MR STREET:   Well, your Honour, we would respectfully submit that this provision is consistent with those important freedoms, the freedom of speech being taken –i

FRENCH CJ:   What is the construction that is informed by this provision?

MR STREET: The construction of section 33(b) and the meaning of ‑ ‑ ‑

FRENCH CJ:   In what way?

MR STREET:   In relation to the content of the meaning of disturbance and whether disturbance means something that is a breach of the peace or violence or is something of a broader meaning that could ‑ ‑ ‑

CRENNAN J:   This gets back to the alternative argument based on Justice Logan’s reasoning.

MR STREET:   Yes.  That is its relevance, your Honour.

FRENCH CJ:   All right.  So, you are saying it is a high threshold construction because of this kind of consideration?

MR STREET:   Which the Act itself picks up, yes, your Honour.  And, in our respectful submission, marries into what your Honour and the Full Court said in Evans v State of New South Wales. Just turning to Division 3 and the nature of the offences, I do not intend to step your Honours through the 10 provisions but I do intend to identify for your Honours that - your Honours will see that attention was given to the Criminal Code in terms of creating some elements or some offences within this Division as being ones of strict liability or the like under the Criminal Code.

When one comes to section 33, in our respectful submission, the scope of conduct that is caught by an assault is obviously one which is at the end consistent with the description in this Division one of violence – not all assaults involving violence will be something that could constitute a breach of the peace within paragraph (b), or violence within paragraph (b).

When we come to paragraph (b) what we respectfully submit is that when one looks at the other provisions, the obscenity – and obscenity is obviously something more serious than indecency - it is again at the more serious end of the spectrum and the insulting or provocative words in terms of likely to incite some potential breach of peace or reaction, in our respectful submission, they identify a level of criminality that was not intended, in our respectful submission, to impair what I called before the fundamental freedom of speech in a material way.  So it does not manifest by its express terms or by necessarily implication a reading down of that common law freedom.

Your Honours, can I just then identify some other provisions in the Defence Force Discipline Act in relation to the trial?  Section 103 identifies the procedure which gives rise to the charge that I took your Honours to, albeit the amended charge, in identifying how the charge is laid.  Then if I could turn to section 114, it identifies the types of court martial, and we have here a restricted court martial under section 114(3).  A court martial subject to section 63 under section 115 has jurisdiction to try the charge against the person.  The next provision I would seek to take your Honours to is section 132 and it identifies that:

A court martial –

and this applies to a restricted court martial –

shall try a charge in accordance with the following provisions –

Materially, what is required, as your Honours will see under paragraph (d) -

if the judge advocate, after hearing the evidence on the charge adduced by the prosecution, rules that the evidence is sufficient to support the charge, the court martial shall proceed with the trial;

 . . . 

(f)if the court martial finds the accused person guilty, the court martial shall convict the accused person –

Materially under section 133(1):

Subject to section 134 –

which is dealing with rulings of law –

in any proceeding before a court martial:

 . . . 

(b)every question shall be determined by the members of the court martial.

Necessarily involved in the trial of the appellant in this case was the question of whether the prosecution had proved beyond reasonable doubt the fault element in respect of 33(b) and we say also whether or not they properly determined that physical element and the misdirections in this case went to the heart of that determination.

Your Honours, can I then just briefly identify in terms of legislation there is obviously the Defence Force Discipline Act, which I would seek to identify, gave rise to the deliberation by that Tribunal then of the appeal that was brought to it.  That Tribunal, unlike the court martial body, is not the subject of some command review so, having identified it is not the subject of some command review, can I identify it is section 20 that identifies first that one can pursue a question of law without leave under section 20 to the Tribunal, and section 23 identifies the power of the Tribunal relevantly under subsection (1)(b) to deal with the question of law in determining whether to quash the ‑ ‑ ‑

CRENNAN J:   Where are you reading from now, Mr Street?

MR STREET:   Section 23(1)(b).  Sorry, your Honours, I was just identifying in the Defence Force Discipline Act the source of the powers that gave rise to the determination by the Tribunal and it is relevant in this sense:  a part of what my learned friend is seeking to do in terms of relief is suggesting that there should be some new course taken in terms of an issue not raised before the Tribunal, not raised before the Full Court, and we say this is a tribunal in relation to which that type of new issue should not be permitted.

FRENCH CJ:   Anyway, now you are taking us to the Defence Force Discipline Appeals Act?

MR STREET:   Yes, your Honours, and I have identified section 20 and now section 23(1)(b) in relation to the capacity of the Tribunal to determine a question of law in determining an appeal and there are powers given under section 24 in terms of a discretionary power to order a new trial and under section 26 a power, a discretionary power, in circumstances where the requirements of subsection (1)(b) are made out to engage in some other course.  That course was not taken, that course was not advanced under section 26. 

Can I then refer your Honours to section 41 and where there is a quashing of a conviction the consequence is there is a deemed acquittal in relation to the offence under section 41, which we say is what the Tribunal should have done.  Then one has under section 52(1) the capacity to:

appeal to the Federal Court of Australia on a question of law involved in a decision of the Tribunal –

which is what gives rise to then the capacity to exercise and invoke this Court’s jurisdiction under section 73.  In relation to that reference to:

on a question of law involved in a decision of the Tribunal –

obviously we respectfully submit is in part informed by the question of law provisions that are already referred to in sections 20 and 23, and subsection (3) provides:

The Federal Court of Australia has jurisdiction to hear and determine matters arising under this section –

So, it is a subject matter jurisdiction.

KIEFEL J:   The respondent’s notice of contention points, does it not, to the phrase “involved in a decision of the Tribunal” in section 52(1)?

MR STREET:   Yes, your Honour, and we respectfully submit that the misdirections were squarely involved in the decision of the Tribunal.

KIEFEL J:   I think the point though is whether or not it was a point raised squarely before the Tribunal and therefore could give rise to a question of law on appeal.

MR STREET:   Well, your Honours, we respectfully submit it was one that did do that, but perhaps if I can, your Honours, just in relation to that can I take your Honours to the amended notice of appeal at 463 before the Tribunal?  So the amended notice of appeal identifies, if I can gently put it, four different categories consistent with, in essence, section 23.  In other words, one has the different types of jurisdiction that might be invoked under section 23 raised by these grounds and the first ground is wrong in law - in other words, section 23(1)(b).  That is ground 1 and under ground 1, wrong in law, what was identified in (e) was:

the charge upon which the appellant was convicted was the subject of a fault element under s 5.6(2) of the Criminal Code as to intention or recklessness in creating the result.

Now, your Honours, in relation to the description, “recklessness in creating the result”, your Honours, that in our respectful submission, is clearly a reference to what I will call our alternative submission that we put that there is – it was a result of conduct.  The words “as to intention” have no work to do if they were not, in our respectful submission, raising the issue of intention.

KIEFEL J:   Does not the notice of contention focus on the notice of appeal to the Full Court in relation to the Tribunal’s decision?

MR STREET:   I was going to come to that, your Honours, but what I was going to identify was, first of all, because I said section 52 is informed by sections 20 and 23.  When you go to 23 ‑ we raise 23 and what I was seeking to identify was that we also raised in paragraph (f):

the charge upon which the applicant was convicted was the subject of an erroneous direction as to a fault element concerning –

acts or conduct.

FRENCH CJ:   Your contention is, is it not, that the particular question does not have to be the subject of explicit consideration by the Tribunal as long as it is involved in the decision in some way, is that right?  That is your position?

MR STREET:   Yes, your Honours, yes.  Your Honours, can I then – those same paragraphs in substance appear in the amended notice of appeal and could I take your Honours to it on page 645 in answer to your Honour Justice Kiefel?  Your Honours, could I invite your Honours at 645, the words starting “because” down to the second “because” actually were all deleted by oral application at page 735 in the appeal book in the transcript before the Full Court.  So those were words intended to assist in terms of identifying the nature of the ground but, relevantly, your Honours, it is one which was deleted with leave without an amended notice of appeal being required to be filed.

Having identified the questions of law and having identified its source in essence below as being one under 23(1)(b) can I take your Honours then to paragraph (e) of the question and, again, the words are virtually identical, “as to intention or recklessness in creating a result”.  The word “intention” would be superfluous if it was not, in fact, raising the intention issue and they would have no work to do.  Can I turn to paragraph (g)?  We squarely raise there:

the charge upon which the applicant was convicted was the subject of an erroneous direction [as to the] intention to create a result of conduct was irrelevant.

Now, your Honours, whether it is result or whether it is intention, in our respectful submission, it is involved within the meaning of section 52.

KIEFEL J:   Did Justice Dowsett make reference to the question whether or not this was raised before the Full Court?

CRENNAN J:   Paragraph 123, I think.

MR STREET:   He did, your Honours, and he squarely identified a position that – and I can take ‑ ‑ ‑

CRENNAN J:   Paragraph 123.

GAGELER J:   Perhaps at paragraph 130.

MR STREET:   Yes, your Honours.  There is also another reference by his Honour, if I can take your Honours to it, on page 820, at about line 44 on the page:

Although little attempt was made to explain the case based on the fault element of intention, the issue is squarely raised.

CRENNAN J:   Paragraphs 123 and 130 deals with it.

MR STREET: Paragraph 123, yes. Your Honours, having identified those statutory provisions, can I come please to what we respectfully submit – in our list of propositions which we have handed up to your Honours, we have sought to identify the fault element in relation to that physical element in the offence under section 33(b) and the way in which we have sought to put it in that regard is that it is an act, and your Honours will see that in paragraph (c). If it is not an act, it may have been a state of affairs, but that raises the question of what I will call the state of its offences such as imposition of marijuana, or drunk in a public place, which is perhaps more likely to be the content of a state of affairs.

Your Honours will see we have identified what might have been in contrast a circumstance in which the conduct or a result of the conduct occurs, such as being a Defence member or being on public land or on a warship.  In our respectful submission, the first way we put our case is that the fault element for this particular physical element must be the intention of recklessness, and in relation to that physical element, we say in the first place that it consists only of conduct being the act that creates a disturbance.

Your Honours, we identify in our list of propositions how that was dealt with below, and we have sought to identify the concept picked up erroneously of “engage in conduct” by the learned Judge Advocate when the Judge Advocate tried to give the directions on this fault element.  It is squarely repeated something like five times, the error in relation to the misdirection, that there was no requirement that the appellant intended to create a disturbance.  Can I take your Honours to what was said by the Judge Advocate in the appeal books?

FRENCH CJ:   The content of this direction is not in issue, is it?

MR STREET:   No, your Honour.  The summing up, your Honours, commenced at page 417 in volume 1 of the appeal book, and there is passing reference – I do not think your Honours need to be taken to it – to the importance of the elements in the determination of a task to be performed by the court martial panel, which appears at 418, line 48.  It is touched on again at 419 at, if I can use the transcript line, about line 19.  It is again touched on at page 421 in terms of the elements of the offence at, again using the transcript reference, about point 15. 

Point 30, using the transcript reference on page 421, is where the first charge is the subject of submissions, and it is the third physical element that starts at the second last line that is of moment, and it picks up that erroneous expression in the last line, “engaged in conduct”, your Honours will see on page 421:

The third physical element is conduct – that is, the defendant engaged in conduct –

Your Honours, that is the error creeping in, in terms of the focus of:

engaged in conduct which created a disturbance – and the accompanying physical element is an intention –

and here is the first error in relation to our first primary ground –

that is, he meant to engage in that conduct –

again, the erroneous expression picked up –

not that he intended to create a disturbance, that he intended to engage in the conduct.

again repeated.  Your Honours, that erroneous direction in relation to intention one finds repeated when one comes down to line 25, where again there is a reference to the “fault element” in respect of this third physical element, where there is a reference to:

the fault element, which is intention.  That does not mean the prosecution has to prove the defendant intended to create a disturbance.

We respectfully submit, wrong:

The prosecution has to prove that the accused intended to engage in the acts that amounted to a disturbance –

Again, we say, that is picking up that “engage in conduct” error that appears to have crept in.  Then, your Honours, the error is again repeated at line 30, again using the same concept:

To summarise, has the prosecution proved that the accused engaged in conduct that amounted to a disturbance?

That erroneous expression, and then it says:

If yes, did he intend to –

again using the erroneous expression –

engage in that conduct?  As I said, the prosecution does not have to prove that the accused set out to create a disturbance –

and we respectfully submit, wrong in relation to the third element, and –

the prosecution has to prove that the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct.

We respectfully submit that was wrong and when one goes down to the third last line, we have again a statement that:

What you are required to find is, having regard to the particulars, has the prosecution proved beyond reasonable doubt that the accused created a disturbance by conduct that he intended to engage in at that time.

Not the relevant physical element.  Your Honours, it is that decision of the Judge Advocate that was obviously the subject then of consideration by the Defence Force Discipline Appeal Tribunal, and can I take your Honours to the Tribunal decision?  At 601, is the commencement of the deliberation of the question of law issues raised in respect of that misdirection.  What their Honours proceeded to do is at 604.  They deflected themselves by focus on the conduct from X referring to “engage in conduct”, the same deflection, in our respectful submission, that I have earlier identified by the Judge Advocate at line 10.  Then in paragraph 61, they have said in the second sentence:

Section 33(b) does not require that an offender “intends” to create a disturbance.

Well, your Honours, we respectfully submit that is wrong.  That is the issue that we oppose in the appeal and we respectfully submit that is an error that is fundamental in relation to the trial in determination of guilt of the appellant.  Then what is advanced is:

What the prosecution had to prove, consistently with s 5.2(1), beyond reasonable doubt was that the appellant intended to conduct himself as he did.

Now, that is lowering the threshold.  It is changing the correct question in regard of the fault element that had to be considered and, your Honours, it continues:

The directions to the panel were orthodox and involved no error.

In our respectful submission, that, of itself, is wrong and there is obviously no analysis in relation to the content of the miscarriage in the last sentence.

FRENCH CJ:   Incidentally, do you accept the proposition that:

A range of different acts performed either simultaneously or closely proximate in time, may create a disturbance.

MR STREET:   If in fact, your Honour, the conduct is of a kind that satisfies the nature of the physical element, yes, your Honour, it may be ‑ ‑ ‑

FRENCH CJ:   I mean, the point simply is this that disturbances may be created in a variety of ways, some of them may involve speech, some of the may involve conduct of another kind.  Is that not right?

MR STREET:   Your Honour, in terms of a disturbance involving speech ‑ ‑ ‑

FRENCH CJ:   I am just asking about the range of conduct that can underpin that can constitute creating a disturbance.

MR STREET:   No, your Honour, speech, no, in our respectful submission.  That is at the end of the spectrum that this offence was not intended to catch.  What this offence was intended to catch was something that involves breach of the peace such as damage to personal property or violence or at the serious end of the spectrum, and if I can pick up what your Honour the Chief Justice said, if one says that “disturbance” has a range of meaning, and I accept it may have a range of meaning that might embrace – the view taken by the Full Federal Court, a broader view of, in essence, a disorderly disputation.  That is too broad a meaning and that is not the content, and so an argument in terms of an oral argument, no.

FRENCH CJ:   When you are construing this provision you are not just talking about speech, you are talking about a range of conduct, and when you are deciding at what threshold it amounts to creating a disturbance you are looking at a threshold which may be generated by a variety of different kinds of conduct, are you not?

MR STREET:   I accept that, your Honour.  Obviously our submission is that it has to be at the serious end of the spectrum, which is what we have sought to identify and, for that reason, a narrow interpretation would be adopted in respect of the physical element.  So, your Honours, the Full Court of the Federal Court dealt with this issue.  Page 789 is where they first commenced to address the fault element, but could I just draw your Honours’ attention to the last line of paragraph 48 where your Honours will see again there is focus on:

to establish the appellant’s intention to engage in conduct –

So, the same erroneous concept picked up.  Then, your Honours, the critical part of the judgment appears in paragraph 57, and that is on page 793.

CRENNAN J:   Now, in relation to paragraph 57 on page 793, concentrating for the moment just on what you have described as your main point, which is encapsulated in grounds 1 and 2 of the notice of appeal, that is that Justice Dowsett’s processing of reasoning was correct, looking at paragraph 57 the majority state that:

the physical element of the offence is the creation of a disturbance.

So no difference there between the majority and Justice Dowsett?

MR STREET:   Yes, your Honour.

CRENNAN J:  

The physical element is conduct . . . The relevant physical element of the offence is conduct which “creates a disturbance”.  For conduct, the fault element is intention.

So, so far no difference between the path of reasoning.  Now, it is the next sentence, is it:

As the Tribunal explained, the relevant intention is the intention to engage in the conduct alleged in the particulars –

Is that what you say is the error in the majority’s path of reasoning?

MR STREET:   Yes, and their last sentence picks up that error but can I take your Honour back to the sentence, “The relevant physical element of the offence is conduct”.  Your Honour, the word “which” involves the same error because, in essence, what they are there suggesting is the same error they pick up in the sentence that your Honour just read out.  In other words, they are focusing in that sentence, “The relevant physical element of the offence is conduct”.  The word “which” is what leads to the extension.

CRENNAN J:   Yes, I see your point.

KIEFEL J:   You say that the Full Court is adding a causal element so that the conduct is separated from the resultant disturbance?

MR STREET: Yes, your Honour, and that appears to reflect the error that we respectfully submit they engaged in. Your Honours, having identified that I think it is not necessary to labour what it is that Justice Dowsett said and what Justice Logan said. Can I turn, if the Court pleases, to what is the second way in which we put our case relating to the fault element and it appears on our list of propositions and it is to this effect that if, in paragraph 3(d), if the Court were of the view that it was not conduct that consists only – at least that the physical element is not one in section 33(b) that consists only of conduct then we respectfully submit that it is one that falls within a result and one in respect of which the fault element is recklessness then the same consequence, in our respectful submission follows.

GAGELER J:   Mr Street, can “conduct” within the meaning of the Code encompass bringing about a state of affairs?

MR STREET:   Yes, your Honour, and that is why I think we said an act – I mean an act, adopting what it was I think Justice Hayne had said in Murray, not over‑refining the analysis and picking up the balance line of broad meaning of “act” or “state of affairs”.

FRENCH CJ:   The distinction is this, that your fall‑back position is the creation of a disturbance is a result and that recklessness applies.  Your primary position is that creating a disturbance is conduct of a certain character and it is intended that it have that character.

MR STREET:   Yes, your Honour.

BELL J:   If you look at your alternative submission, it would have this consequence, that the physical elements of the offence would be elements of circumstance, namely, that the person is a defence member and that the offence relevantly occurred on service land and that it involves a result of conduct and there would be no requirement for any voluntary act on the part of the defendant.

MR STREET:   Intentional act.

BELL J:   Voluntary act.  Voluntariness under 4.2 is confined to conduct.

MR STREET:   Yes.

BELL J:   That may be one reason for perhaps favouring a construction of the offence‑creating provision that sees the physical element as an element of conduct albeit, as I understand it on your submission, a complex act.

MR STREET:   Yes.  Your Honours, can I then turn to what I will call the remaining issue which is the physical element and there, your Honours, in substance what we seek to do is adopt the construction that was adopted by his Honour Justice Logan, having identified the potential for a narrow or a broad construction, identifying in essence the reason why one would adopt in this provision the narrower construction, and we adopt what his Honour had said, but can I just identify very briefly where the error occurs in the reasons of the Judge Advocate and then I will turn to the Tribunal and the Full Court.  If I could take your Honours to page 422, using the transcript reference if I may on page 422, at line 8 there is the sentence starting:

I can say that creating a disturbance includes brawling and violent –

and then –

or disorderly disputation.

Could I just pause?  If the description was one of violent disputation or violent disorder one would have, in our respectful submission, little criticism.  But the concept of disorderly disputation is a lowering of the threshold and then one comes to the second way in which this error creeps in:

Here, the prosecution case is that it involved violent or disorderly disputation.

Then what is said is:

The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident –

Your Honours, in our respectful submission, that same concept of response as the content of meaning of disturbance is picked up again when one drops to line 20 where there is again the statement:

There needs to be violent –

and again –

or disorderly disputation –

The lowering of the standard –

as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.

Now, your Honours, in our respectful submission, that same concept of response, as the content of meaning of disturbance, is picked up again when one drops to line 20, where there is again the statement:

There needs to be violent [and again] or disorderly disputation –

the lowering of the standard –

as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.

Now, your Honours, many arguments between blokes will be disorderly.  They may be disruptive.  They may be likely to cause a response but they are not, in our respectful submission, a criminal disturbance within 33(b).

BELL J:   A lot of blokes are not serving members of the military, and that is a relevant consideration in this context, surely?

MR STREET:   Quite, your Honour, and indeed as Justice Logan identified, this type of what I will call argument is not something confined to the world of military service any more than the civilian world, so they are relevant features.

Can I take your Honours to the Full Court’s decision in relation to what was – actually, can I take your Honours first to what the Tribunal said?  The Tribunal dealt with it, your Honours, at page – it starts effectively, your Honours, so far as we are concerned, 604 is where the issue is raised.  There is a reference to the authorities, and at 606, there is paragraph 68 that concludes:

The charge gives rise to only one issue, namely that there was a “disturbance” created by the appellant.  This is solely a question of fact, and the evidence outlined above established that the appellant engaged in conduct which was sufficient to constitute a disturbance.

Just pausing there, there is obviously inherent in that an assumption as to what it is that constitutes the meaning of “disturbance”, and it does not assist in identifying its content.  The court at paragraph 75 over on page 607 referred to the meaning given by Anning, and that meaning given in Anning, in our respectful submission, is one in respect of which, properly read, it was identifying something where it refers to actual disturbances – the passage appears in paragraph 73 on page 607 – that involves some level of force or violence, and where it refers to:

assaults, actual disturbances, behaviour within the view or hearing of another person –

it was not diminishing the content of violence or force that was required, and in our respectful submission, that accords with the way in which that passage concludes in Anning referring to the use of force/violence in the creation of a disturbance.  What was then said at 75 was that:

The context of s 33(b) and its overall purpose of regulating discipline in the ADF support the directions given by the Judge Advocate about the meaning of disturbance which he derived from R v Anning.

In our respectful submission, that is wrong and, in our respectful submission, that expands the content in the way in which the Judge Advocate dealt with it to what are called a disorderly disputation which distracts others.  Your Honours will see that that informs what the court then said in paragraph 76 where they characterise the conduct as “a disturbance”.  Can I take your Honours to the Full Court at page 797?  This is paragraph 69, and here the majority said in paragraph 69, about line 40:

On that footing, one may say that s 33(b) of the Act is transgressed, and free speech has passed its limits, when loud argument disrupts the orderly performance by others of their duties.

In our respectful submission, that is picking up this potential issue of broad or narrow construction and, in our respectful submission, it is wrong, when one comes to paragraph 71 ‑ ‑ ‑

KIEFEL J:   I am sorry, which aspect of that do you disagree with?  It is not that conduct has an effect on others, but the notion of a disturbance carries with it an effect upon others, so it is not that aspect.

MR STREET:   No.

KIEFEL J:   Which part do you cavil with?

MR STREET:   It is the aspect which allowed argument that disrupts. 

KIEFEL J:   Allowed argument.

MR STREET:   And many exercises of free speech will be loud arguments and, in our respectful submission, that was not intended to be the content.

KIEFEL J:   So your focus is both the conduct must have a higher degree of violence and that would require on the other hand that the effect on others would be more than a loud argument would have.  It would have to have elevated to a level where more than one person was alarmed or something of that order?

MR STREET:   Well, your Honours, we would have said it is one where there should be something in the nature of a breach of a peace or violence, or approaching that end of the spectrum, or likely to result in that, and so if one goes back to the discussion that was in Coleman v Power and the like, and whether it is likely to incite a breach of peace and whatever might be ‑ ‑ ‑

KIEFEL J:   I have diverted you.  You were working us through the Full Court, perhaps we should come back to that when you have finished your background to your submissions.

MR STREET:   Yes, but in answer to what your Honour says, we respectfully submit that the proposition that it be transgressed by a loud argument that disrupts orderly performance is just too broad a meaning to the ‑ ‑ ‑

KIEFEL J:   So, people might be distracted but they are not going to be disturbed.

MR STREET:   And mere disturbance of someone is not disturbance within the meaning of 33(b).  What is required is something that involves force or violence at that end of the spectrum, and we respectfully submit that is the lowest standard.  When one comes to paragraph 71, having picked up what the Tribunal said about whether or not there was evidence to identify it raised voices, what is said in 71:

In our respectful opinion, this passage does not reveal any error of law.  The direction identified that the conduct must disrupt the work of the person to whom it is directed or persons who may have observed it.

If that is the content, that is inadequate and, in our respectful submission, that direction to that extent is what was given by the Judge Advocate and was deficient.  When one comes then, your Honours, to what the Full Court says at 75 and there it is said:

It will be apparent from what we have written thus far that we consider that, as a matter of ordinary language and having regard to the context in which the phrase “creates a disturbance” appears, s 33(b) of the Discipline Act is breached by conduct which falls short of an assault upon a person or damage to property.  It is arguable that the legislative history of “disturbance” in the context of military law is limited to such conduct.

Now, they have obviously opted for the broader meaning, a wider meaning, and although we do not accept, your Honour, that we eschewed reliance on the argument in terms of history, but to the extent relevant, your Honour, the proposition that history of the usage warrants the conclusion that the phrase “creates a disturbance and breach of the peace” means breach of the peace and some form of violent conduct which actually harms the person or the person’s property, in our respectful submission, that is consistent with a construction that takes into account that the freedom that is identified, common law freedom in Evans in terms of freedom of speech and, in our respectful submission, it is consistent with an historical approach to what had been described in some of the cases as disturbances and in that regard, your Honours, they are identified ‑ ‑ ‑

FRENCH CJ:   So because of the impact of a low threshold construction on freedom of speech one adopts a high threshold construction applicable to all manner of conduct which could constitute a disturbance, be it speech or not.

MR STREET:   Yes, your Honour.  Your Honour, in our respectful submission, what is then said at 77, in our respectful submission, is wrong as a matter of principle:

It is quite unlikely, given the existence of s 33(a), that the expression “creates a disturbance” encompasses only conduct which, insofar as it is directed against a person, also amounts to an assault upon a person.

Your Honour, that assumes an overlap, and as I sought to put earlier, one can have an assault which is not a disturbance involving violence or causing a disturbance.  Then one has, in our respectful submission, paragraph 78 which articulates squarely the error where it said:

on any view of the evidence, the appellant’s conduct, in forcing his unwelcome attentions upon Mr Snashall to the point of physical contact between the appellant and the door to Mr Snashall’s office as the appellant persisted in his obviously unwelcome pursuit, is not fairly described as a loud argument or a commotion.  It is fairly described as creating a disturbance.

In our respectful submission, that physical contact is not physical contact in circumstances where I think it is clearly identified Mr Snashall was closing the door, the appellant was caught between the door as the door was being closed.

There is one error that I should just identify for your Honours for in the Tribunal below.  It was suggested that the appellant put his foot in the door by the Tribunal in its summary of facts.  The witness that gave evidence in that regard admitted that he did not see any such event in relation to that aspect.  Relevantly, your Honour, it appears – if your Honours were just looking at what occurred – it appears at appeal book 225 at line 3 and at line 10 contradicting what had earlier been said at page 208, he suggesting there was some foot in the door.  It is also one where in relation to – just touching upon that aspect in terms of the background – it was not correct, as the Tribunal suggested that the appellant made no remark in response to – if I can put it this way – the slur.

KIEFEL J:   Could I interrupt you and just take you back to paragraph 78 in the Full Court.  Is the Full Court there referring to the conduct between the appellant and Mr Snashall as itself the disturbance?  I say that because at paragraph 71 the Full Court appears to agree that where:

The direction identified that the conduct must disrupt the work of the person to whom it was directed –

as an alternative to others.  Is the Full Court confining the notion of a disturbance to something that occurs between two people, disturbing one person’s work?

MR STREET:   Your Honour, a disturbance could involve two.  It could involve more.

KIEFEL J:   But what is the Full Court saying?

MR STREET:   Your Honours, in our respectful submission, the Full Court appears to have focussed on disrupting the work of someone else, we would have thought in what they have said in 71, rather than the work of the appellant.  But in either case, whether it is in that regard treated as disturbing Mr Snashall or whether it is treated as disturbing someone else it does not elevate, in our respectful submission, into the content of a disturbance, and if I can just go back in that ‑ ‑ ‑

KIEFEL J:   But if in paragraph 71 the Full Court is saying that the disturbance might be either to the person to whom it was directed or others who have observed it it tends to suggest that the conduct that they are concerned with is not necessarily conduct which will have an effect, generally, upon other people.  It has narrowed its effects.

MR STREET:   It does suggest that they have focussed more narrowly, yes, your Honour.

CRENNAN J:   One aspect of the charge to be found on page 2 – this is the first charge – was that:

[the appellant] created a disturbance by causing a confrontation with Mr Snashall –

MR STREET:   Your Honours, in our respectful submission, a confrontation is involved in every argument between persons and that cannot of itself, in our respectful submission, reflect the content.  Your Honours will have seen that we made a criticism about that in the courts below as to what particular work that did.

CRENNAN J:   In terms of the onus on the prosecution?

MR STREET:   Yes, and never addressed by the Judge Advocate in the summing up or anything in relation to the content of what that meant.  Nothing was said.  But leave that aside, what we would say, if one looked at causing confrontation, that is not a disturbance.  If one goes to page 41 of the appeal book and looks at the particulars, refusing “to leave . . . when requested to do so”, “speaking . . . with a raised voice”, that does not get there; “followed” into “the conversation when” he “left his office”, that is, if I can put it gently, pursuing one’s freedom with some vigour and tenacity and some cause as to why he did so:

forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door –

Well, if someone is trying to close the door on you, you would resist the door being pushed on you.  That is not of itself something that, in our respectful submission, gives rise to a trespassing into a criminal disturbance, and:

re‑entered Mr Snashall’s office and again refused to leave when requested to do so –

He is seeking to be heard and, in our respectful submission, it is an argument that is continued, and:

stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

Well, your Honours, there is no violence, there is no force, there is no disturbance of a kind that involved damage to personal property and, in our respectful submission, what there was was, yes, a loss of control, not tears but raised voice, but that is not a disturbance.

FRENCH CJ:   Just going back to 71 for a moment, the Full Court there seems to be characterising the direction.  Is it right to say it is not laying down a general proposition that creating a disturbance must disrupt the work of a particular person or persons who may have observed it?  This is in a characterisation of its operation in this factual setting.

MR STREET:   Well, your Honours, it appears - in our respectful submission, one would read it with what was said back in paragraph 69:

when loud argument disrupts the orderly performance by others of their duties.

That is why we sought to read it together in identifying the error.

FRENCH CJ:   That is a particular example of the application relevant to this case.

MR STREET:   Yes, but in our respectful submission, it does not address the content of the physical element in a correct way.

FRENCH CJ:   I am just trying to find out what the Full Court is saying about the section here.

MR STREET:   I understand that, your Honour.

FRENCH CJ:   It seems to me it is factually bound to some extent or it is contextualised.

MR STREET:   Well, your Honour, we would have said it is really trying to address whether or not there was an error.  That is the first sentence in paragraph 71.  So it goes higher than contextualising.

GAGELER J:   Was Justice Dowsett saying anything different at paragraph 108?

MR STREET:   Justice Dowsett agreed with the majority in relation to this issue.  It is Justice Logan that took a different view.

BELL J:   Looking at the majority reasoning, which was to consider the ordinary meaning of the word “disturbance”, then look at the use of that word in the context of the provision, noting that a separate offence involves an assault and the disturbance presumably was taking up something apart from a simple assault, and its context within a code of Defence Force discipline, what is the error in the analysis?

MR STREET:   A failure to adopt a narrower construction consistent with the right to freedom of speech that one would ordinarily be entitled to exercise, and that supports a construction which is at the narrow end of the spectrum.  Where one has two competing potential constructions – and I accept one has potentially two different approaches, that of the Full Court in the majority and Justice Dowsett and that adopted by Justice Logan – what we respectfully submit is when one takes into account, looking at the work of section 33(a) in terms of assault, it is not the case that an assault will necessarily have involved damage to person or property. 

The assault may have been simply to put that person in a serious state of fear, having pointed a gun at them, and so the area of conduct embraced within “assault” is not one that supports that reasoning of a broader meaning.  Indeed, what we respectfully submit, as I have sought to put, is that when one takes into account the context and language that is used in the text, it supports that it was dealing with forms of violence and insubordination of a serious kind, and that is consistent with the obscenity.

BELL J:   Where does one get that from, this idea of violence?

MR STREET:   Your Honour, one has, I think, in the heading of the division violence and insubordination for the 10 sections that appear here.

KIEFEL J:   People can be disturbed or alarmed without there being an act of violence.  It is often words that create disturbances.  Speaking of that, just above paragraph 71 in the Full Court’s judgment, they referred to evidence of the effect of the conduct on others, taking it from paragraph 77 of the Tribunal.

MR STREET:   Yes, your Honour.

KIEFEL J:   Why is not that evidence evidence of a disturbance, the effects it had on other people?

MR STREET:   Your Honour, it is evidence of a disruption, but we say as a disruption, it is too low.

KIEFEL J:  

“felt quite uncomfortable and scared . . . think I need to do something about it” . . . concerned that it may turn physical ‑ ‑ ‑

MR STREET:   Your Honour, I accept if one has the broader definition, I cannot contend the Full Court is wrong.  We say it is the ‑ ‑ ‑

KIEFEL J:   It depends entirely upon your narrower version.

MR STREET:   Yes, your Honour.  What we say is that that narrower definition is more consistent with the work that was intended to be done by the Act.  I referred to the provisions in the Act, including section 3(18) and the recognition of fundamental rights and in that regard, whether one has a particularly timid person that hears an argument and is uncomfortable by the argument, one only has to contemplate what happens every day on the street when someone is perhaps intoxicated walking past them.  Many people feel uncomfortable about loud people, and they may feel apprehensive, but it does not mean that one has in fact got conduct that is falling within this criminal spectrum at the serious end of 33(b).

Your Honours, we otherwise seek to maintain the submissions we have put as to why this would give rise to a substantial miscarriage of justice.  We respectfully submit that it is the approach that was adopted by Justice Gummow and Justice Callinan in Hembury that is the appropriate test that we have identified because of this Tribunal and its peculiar nature standing outside Chapter III and standing outside command, and that what their Honours said was the appropriate test, but even if it is a broader test there was, in our respectful submission, on either ground a miscarriage of justice and, your Honours, we respectfully submit that the appropriate order in this case where the issues were not raised below is that the conviction be quashed.

So then if I come to relief it is our submission that the appeal should be dismissed with costs.  If the appellant establishes that the Tribunal made an error in addressing one of the questions of law upon which the appeal is based the matter should be remitted to the Tribunal to determine whether there was a substantial miscarriage of justice.  If, contrary to our submissions, the Court can determine that issue for itself and, assuming that it determines that it was a miscarriage of justice, then the matter should still be remitted to the Tribunal because the Tribunal would then have powers under sections 24 and 26.

In section 24 the power is to have a retrial and in section 26 the power is to substitute an alternative offence.  I note that in this case, as your Honours I am sure will have noticed, but your Honours were taken to the charge, the first charge on page 41.  On page 42 there was a second charge, the prejudicial conduct charge under section 60.  It was the subject of the trial as well.  We would say that it will be open to the Tribunal on any remittal, if it is remitted in those circumstances, which means that we have substantively lost this appeal, to either to a new trial or to substitute the conviction under the other charge.

CRENNAN J:   So you are urging that if we favour Mr Street’s main argument the orders made should be similar to those made in Hembury?

MR LLOYD:   That is so, your Honour.  Well, yes, if your Honour accepts that that – not the recklessness argument but the other argument, yes.

CRENNAN J:   The other.  No, I meant the main argument.  All those other matters are subject for argument on a remitter, are they not?

MR LLOYD:   Perhaps I should take back my answer because in Hembury – of course that was a case in which this Court – I mean, the question of law that was in issue in Hembury is whether or not something was a substantial miscarriage of justice.  This Court in that case determined (a) that it was a substantial miscarriage of – well, I am sorry, (a) that the Tribunal had erred in its approach to whether or not something was a substantial miscarriage of justice and (b), that on a proper understanding it had to be a substantial miscarriage of justice.

So, in those circumstances, it was being remitted but only for the purposes of sections 24 or 26 or to otherwise end the proceeding, whereas we would say that if my friend just won on his principal argument it should go back to the Tribunal with the view that the Tribunal would be able to decide whether there was a substantial miscarriage of justice.  In that sense it is a bit different to Hembury, although the form of the order might be the same.

CRENNAN J:   But it would be remitted but the making of such orders are appropriate conformably with the decision made here?

MR LLOYD:   That is so.  I accept the form of the order but I just wanted to clarify ‑ ‑ ‑

CRENNAN J:   Yes.

MR LLOYD:   Unless the Court has any further questions, they are our submissions.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Street.

MR STREET:   Your Honours, could I just briefly respond to what my learned friend put in relation to what orders might be appropriate?  I think I said to your Honour the Chief Justice that the basis was one founded upon what was raised below.  There is a further ground we identify in paragraph 94 of our submissions and it is also in footnote 1 of our reply and that is effectively there was no evidence of intention and that would be a reason why one would not remit in those circumstances.             

Can I indicate also, your Honours, in relation to what my learned friend said about Hembury, what his Honour Justice McHugh said in Hembury at paragraph 20 was that:

Where the facts as found undoubtedly fall within the provisions of a statutory expression, properly construed, a court is bound to find as a matter of law that they fall within that expression.

We say that is this case in terms of miscarriage of justice.  Your Honours, we otherwise maintain our submissions, if the Court pleases.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 12.33 PM THE MATTER WAS ADJOURNED