Li v Chief of Army

[2013] HCATrans 188

[2013] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2013

B e t w e e n -

TING LI

Applicant

and

CHIEF OF ARMY

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2013, AT 11.04 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   If it please the Court, I appear in this matter with my learned friends, MR P.W. KERR and MR A.K. FLECKNOE‑BROWN for the applicant.  (instructed by Wyatt Attorneys)

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

HAYNE J:   Yes, Mr Street.

MR STREET: Your Honours, in this application the important questions of principle that arise concern the fault element and the physical element under Chapter 2 of the Criminal Code in respect of section 33(b) of the Defence Force Discipline Act 1982 - if I can go first to identify the errors and then the question of importance, your Honours.

If your Honours would turn to the application book at page 73 in the judgment of the Full Court, paragraph 57, dealing first with the erroneous approach in respect of the fault element, what the majority, in essence, determined was in relation to the offence that an intention to engage in the conduct, not the creating of a disturbance, was sufficient.  Your Honours, that appears in paragraph 57 where one goes to the reasoning of the Court in the third‑last line where the Court says:

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

We say that is clearly excising the creating of the disturbance and then to make it clear, the majority continue:

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

Your Honours, in our respectful submission, it could not be clearer that the Full Court is embracing what was said by the Tribunal, excising a fault element from the requirements of section 33(b).

HAYNE J:   Well, can I understand better, what do you say are the physical elements and fault elements of the relevant offence?

MR STREET:   Your Honours, we put it in two ways in our submissions.  We put it first on the proposition that when one goes to section 5.6 - can I take your Honours to it on page 71 - it identifies:

a physical element that consists only of conduct, intention is the fault element for that physical element.

Effectively, if the physical element is correctly characterised as only conduct, it is the creating of a disturbance in respect of which intention was necessary, or if one looks at subsection (2), and we put both, your Honours, if it is a circumstance or result, recklessness was required. 

HAYNE J:   What I am not understanding, Mr Street, is what do you say - and you may have alternative submissions, I understand that - but what do you say is the physical element of the relevant offence?

MR STREET:   Creating a disturbance and, your Honour, in that regard, what the Full Court and the majority excised ‑ ‑ ‑

HAYNE J:   Is that a physical element that consists only of conduct, or is it a physical element that consists of a circumstance or result?

MR STREET:   Your Honours, we respectfully submit, it actually falls within section 5.6(2).

CRENNAN J:   You argued the latter below, did you not?

MR STREET:   We argued both and we said that the court was wrong in relation to treating it as if it was only conduct and we also put that the direction which excised a requirement of intention was wrong.  So they were the two grounds concerning the fault element.  We said first the fault element should be one in respect of which it should be recklessness by reason of section 5.6(2) and by reason of the fact that it is not only conduct, it is a circumstance or result within section 5.6.

CRENNAN J:   In relation to paragraph 28 of your written submissions application book 158, you do explain some of the background.  What is your primary position for present purposes?  Do you adopt the reasoning of Justice Dowsett?

MR STREET:   Yes, your Honours, that is our primary position.  We say Justice Dowsett’s reasoning clearly identifies that intention was a necessary element not addressed.  Can I take your Honours back to the decision in the Tribunal that makes crystal clear the error that has been picked up by the majority.  If your Honours go to application book page 23 ‑ ‑ ‑

CRENNAN J:   Paragraph 61?

MR STREET:   Paragraph 61, your Honours will see in the second sentence:

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

Clearly, that is what the majority have picked up and we say that is wrong.  When your Honours go to what was said by the Judge Advocate, could I take your Honours across to page 22.  Page 22 sets out what was said by the Judge Advocate in directions to the panel and if your Honours would go to approximately line 15 starting “The third physical element is conduct” – it is the second paragraph.  If your Honours drop down to the second last line or at least the second line your Honours see:

and the accompanying physical element is an intention, that is, he meant to engage in that conduct, not that he intended to create a disturbance, that he intended to engage in the conduct.

This proposition is repeated three times.  If one drops down to the second‑last paragraph, your Honours will see again in the direction starting:

You must also be satisfied of the fault element, which is intention.

Here is the repetition of the error:

That does not mean the prosecution has to prove the defendant intended to create a disturbance.

Second time, and then the third time if your Honours drop down to the next paragraph, the sentence starting, at least second sentence:

As I said, the prosecution does not have to prove that the accused set out to create a disturbance -

So, your Honours, could not be clearer that the error, in our respectful submission, arises in relation to the fault element.  We respectfully submit that the reasoning of Justice Dowsett that identifies the error which appears effectively on paragraph 121 on page 100 is persuasive in relation to the nature of the physical element – or at least, the fault element, and in that regard, in our respectful submission, the same position of identifying the error in relation to the fault element appears in the reasoning of Justice Logan on page 128 in the second‑last paragraph where his Honour says in the third‑last sentence:

It is that intention which is the fault element for that physical element.  It was not sufficient, because s 5.2(3) was not applicable, that the prosecution proved either that he meant to bring about the disturbance or was aware that it would occur in the ordinary course of events.

It was not by reason of a failure ‑ ‑ ‑

HAYNE J:   What page are you on?

MR STREET:   Page 128 paragraph 200:

It was not by reason of a failure on the part of the judge advocate, derived from disturbance being a “result” in terms of 5.2(3) of the Criminal Code, to direct on recklessness that any error lay in the tribunal’s decision. Instead, the relevant conduct, creating a disturbance, occasioned a requirement to give a direction as to intention.

HAYNE J:   I just do not understand this point at the moment, Mr Street, I am sorry.  Take me slowly through it.  The physical element, you say, is creating a disturbance.  Is that right?

MR STREET:   Yes, your Honour. 

HAYNE J:   That is what, a species of conduct?

CRENNAN J:   For the purposes of section 4.1?

MR STREET: Yes, your Honour, for the purpose of section 4.1 in relation to intention and if it is not, that is the primary case that Justice Dowsett and Justice Logan embraced, saying that in those circumstances under section 33(b) there needed to be a direction in relation to intention. This is a case where that intention was right at the heart of the nature of the conduct because here you had an officer that had been subjected to what he believed was an unlawful racial slur and he was seeking to engage in a protest. So, as identified by Justice Dowsett, if I can take your Honours to it in his judgment at page AB 104 at paragraph 135:

On my view of the case, a question for determination was whether the appellant intended to create a disturbance.  That question should have been determined by the panel.  The result of the error in the Judge Advocate’s direction was that the appellant was deprived of the opportunity to have the question of intention decided by the designated tribunal of fact.

Your Honours, that is our first question.  We say, in our respectful submission, it is a certainly important question to warrant a grant of special leave.  Intertwined with it is obviously the question of the physical element

and the content of the physical element in relation to “creates a disturbance” and here what ‑ ‑ ‑

CRENNAN J:   Justice Dowsett in paragraph 121 took the view that:

disturbance involves the disruption of existing conditions.

Are you challenging that aspect of his Honour’s decision?

MR STREET: Your Honours, Justice Logan went further. We respectfully embrace what Justice Logan said in relation to the second intertwined aspect in relation to the meaning of “disturbance”. What his Honour did was identify in Part III Division 3 of this Act insubordination and violence, that violence was a necessary feature of the meaning of “disturbance” in section 33(b). That is what we put. We embrace it. We say what his Honour said in relation to a need for violence or brawling is correct. To read in simply disputation is, in our respectful submission, to lower the bar in favour of the prosecution.

CRENNAN J:   But your first point in relation to the fault element is capable of being a stand‑alone point, I would have thought?

MR STREET:   It is, your Honours, yes, we accept that but we do put that given the content of the provision and the meaning of “disturbance” thrown out by Justice Logan, it is one where it is convenient to deal with the entwined question as to the meaning of “disturbance”.  Your Honours, in terms of importance, in our respectful submission, it is one where clearly one has an important question in relation to the application of the Criminal Code in Chapter 2 in relation to the meaning of “intention” and in relation to this provision, section 33, it has significance in relation to the whole of the Australian Defence Force in its application.

That this type of problem can arise is elegantly identified in the Papua New Guinea example cited by Justice Logan but it is also one, in our respectful submission, where apart from seeking to advance it as raising questions of principle, we do seek to invoke section 35(a) paragraph (b) in this case as being one which requires in the interests of the administration of justice a grant of special leave to deal with what, in our respectful submission, was patently an erroneous decision in the Full Court below.  If the Court pleases.

HAYNE J:   Yes, Mr Lloyd.

MR LLOYD:   In respect of the two questions, we say that they both, for slightly different reasons, provide an inappropriate vehicle or not a suitable vehicle and in both there are not sufficient prospects of success to warrant a grant.  If I turn first to the question of the meaning of “disturbance”, the applicant now embraces what Justice Logan has said on the issue.  The first point to note is that Justice Logan’s reasons are not reasons which follow any argument.  They were matters which his Honour reserved upon and dealt with after reserving.  Your Honours will see that on page 79 in paragraph 76.  So that is entirely a new proposition.  It was not the argument put, even to the court below.

HAYNE J:   If the point is good, is it a point that would have made the charge demurrable?

MR LLOYD:   The difficulty with it – I mean, I accept, I think what your Honour is saying is if it is a good point any denial of procedural fairness we have had could be remedied by an appeal to this Court but what we say is ‑ ‑ ‑

HAYNE J:   No, if the point is a good point it is a point that lay to the validity of the charge and whether the charge, as particularised, revealed an offence known to the law and that is not a point that has ever been taken at any stage of these proceedings, I do not think, has it?

MR LLOYD:   It has not, not in that form and that is perhaps what our second objection to this being a vehicle is that in the Tribunal the argument – there was an argument about the meaning of the word “disturbance”.  If the Court looks at page 24 of the Court book at paragraph 66 it will be seen there that - this is how it was put on behalf of the applicant there that reliance was placed on these two cases and what those cases said about disturbance.  They were considered as well as a third case which I was not involved but seems also to have been relied upon - Anning at 73 - reaching ultimately the conclusion at 76 that whichever is the right view, the evidence was sufficient in this case. 

So in terms of the questions of law that were posed to the Tribunal, the answer, perhaps more by reference to the facts was that it was adequate.  So we say the meaning of “disturbance” which is now being relied upon was not a matter which was even before the Tribunal so, therefore, it does not arise on a question of law involved in the Tribunal’s decision and for that reason, we say, it is not a suitable vehicle. 

Can I then say, in any event, the approach of the majority in the court below was orthodox in the question of construction.  I ask your Honours to go to page 75 of the book where the issue starts to be considered.  Their Honours appropriately start at paragraph 63 with the ordinary meaning of the language, then in paragraphs 64 through 69 their Honours look at the context of that provision in the Act more broadly. 

Then, at paragraph 77, after having suggested that perhaps there was a denial of procedural fairness to my client, they say it does not really matter, they do not have to resolve that if they could because they did not see it as affecting their view even obviously having read Justice Logan’s reasons.  We say that that is, with respect, correct.  If I could just take your Honour to where we say Justice Logan erred. 

We accept that there is nothing in principle wrong with looking at legislative history, even over a period of 300 years but at page 109, his Honour starts the analysis in about paragraph 149 looking at what “disturbance” means and this goes for some pages.  His Honour gets to the conclusion at 169 that “disturbance” really picks up a notion of creating “a breach of the peace”.  Then, of course, he has just got a different, relatively amorphous expression so he has to work out what that means and he does that starting at about 175 through to about 187 and his Honour concludes – and I note that the analysis along the way, in order to work out what “disturbance” means, his Honour goes to “breach of peace” ‑ ‑ ‑

HAYNE J:   I think you may take it, Mr Lloyd, that we have read his Honour’s reasons.

MR LLOYD:   Sorry, your Honour.  I just wanted to say this, that in paragraph 179 his Honour identifies what a breach of peace is by reference to discussion that a breach of peace is, as it were, a “violent disturbance”.  So the net result of his Honour’s reasoning is – what is a disturbance?  A disturbance is a breach of peace.  What is a breach of peace?  A breach of peace is a violent disturbance.  Therefore, what the act means is a violent disturbance.  We say that that is a very long way of adding a gloss.  The legislature did not add the word “violent”.  We say that there is not sufficient prospect in relation to that matter.

In relation to the elements issue, we say that in the court below – well, we say both before the Tribunal and in the court below the issue was only what my friend put as his alternate position, that is, whether recklessness was a required element.  My client had filed a notice of objection - this can be seen at paragraph 38 on page 66 - in relation to all of the purported questions of law.  We said the whole matter should be struck out because there are no questions of law in the way they are posed. 

During the course of the morning it was put to me that while maybe that was true, there could have been questions and then counsel were prevailed upon to come up with questions of law that were questions of law and that is what arose.  The majority justices were of the view - and certainly if there is an issue of fact about it which could conceivably arise, my client would be of the view that the appellant did abandon, as the majority said, other grounds, so that they were the questions, subject perhaps to the two additional matters in paragraph 39 which are not really currently being agitated as grounds.

HAYNE J:   Where do I find this reflected in your summary of argument?

MR LLOYD:   It is in paragraphs 8 to 10 on page 166.  We say what the question was, which is the foundation of the jurisdiction of the Federal Court and, therefore, of this Court on appeal, is the question B:

Is recklessness one of the fault elements –

That was the question.  That was also the question, we say, that was before the Tribunal being the question that was answered, addressed on page 23 in paragraph 61 by the Tribunal where the Tribunal considered it was not an element but went on to say at the end of paragraph 61:

Even if it were correct –

that is, even if it was an element:

as contended by the appellant, that the physical element of the offence consists of a circumstance or a result, failure to direct on “recklessness” did not give rise to any miscarriage of justice.

That is a matter that was open to the Tribunal to conclude on the evidence that was available to it.  We say even if “recklessness” is an element, which is one of the points, that matter will not sound in relief.  For that reason, we say – well, for the reason that the approach that Justice Dowsett took was not one of the questions that the court was asked to address and it was not the foundation of the court’s jurisdiction it makes it an unsuitable vehicle for the primary question that would be before the court on elements to be not a question that founds the jurisdiction of the court below.

HAYNE J:   That is not a vehicle point.  That is a question whether it is open – either open or not, what do you say?

MR LLOYD:   We would say it is not open as things currently stand.  The only issue would be whether or not my friends could seek to make an application for the Court to amend the notice of appeal at this late stage, which we would obviously oppose.  But as things currently stand, we say it is not open.

If I can just finish by dealing with what we say paragraph 57 of the majority judgment means.  We say, with respect, that their Honours were correct in what they say at paragraph 57 and it really picks up on – perhaps could I say that the majority justice reasoning goes from paragraphs 48 through to 58.

CRENNAN J:   It is the penultimate sentence in 57 about which the applicant complains.

MR LLOYD:   Yes, if I just return to that in a moment, your Honour.  If I just finish by saying that – sorry, make the other point that I was going to make that in paragraph 61 their Honours also picked up on the notion that the Tribunal had found that in relation to recklessness there would not be a miscarriage of justice.  In relation to, as it were, Justice Dowsett’s approach, we would accept that there is only one – or that the physical element is creating a disturbance and that requires intention.

The approach, we say, of the Judge Advocate is conveniently found in paragraph 22.  Could it conceivably have been clearer?  I suppose it could.  What the Judge Advocate was no doubt concerned about which – and it arises in a number of matters - is where the offence has a concept which is either a legal concept or a kind of a complex concept, such as here, a disturbance, the notion is that – or the approach taken by the Judge Advocate which we say is not flawed is to be seen in the last paragraph in that quote just above paragraph 59:

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

So there is a concept of what amounts to a disturbance.  Has what the applicant done – or really the accused done, amounted to a disturbance?  If it does not, that is the end of it.  If those events amount to the legal conception of a disturbance, then did he intend to do that conduct that amounts to a legal conception of a disturbance.  If the answer to that is yes, that meets the requirements and you do not have to have intended to do something and have in mind that it amounts to the legal conception of a disturbance.  You just have to have intended to do the things that amounts to a legal – I accept that it is a subtle distinction but ‑ ‑ ‑

HAYNE J:   Can you relate it to the terms of the Code?

MR LLOYD:   I think so, your Honour.  So in relation to section 4.1 of the Code, the physical element of the offence may be conduct.  We accept that it is conduct.  If we are wrong about that and it is conduct leading to a result, then that would lead to the recklessness line and on that view, we say, there was still no error because that was looked at by the Tribunal but on our primary position it is conduct.  One then goes to 5.6(1):

If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

So that is what is required.  Then one goes to 5.2(1):

A person has intention with respect to conduct if he or she means to engage in that conduct.

That is almost exactly the words – so, going back to what the Judge Advocate said:

If yes, did he intend to engage in that conduct? 

So it is almost word for word from the legislation.  We say it does not reveal error.  It is a correct approach and it is left ‑ ‑ ‑

HAYNE J:   “Conduct” is defined in 4.1(2) of the Code as:

an act, an omission to perform an act or a state of affairs.

Which, if any, of those expressions is engaged by the charge in this case?

MR LLOYD:   Here would be an act or combination of acts.  So the yelling, the pursuing ‑ Mr Snashall, the agitated state at the end of the incident that led to people being disturbed and coming over and finding out what was happening.

HAYNE J:   State of affairs, by the sound of it.  At some point in this case somebody has to come to grips with the particular provisions of the Code and apply them and not simply talk in terms of physical act, et cetera.

MR LLOYD:   I accept that, your Honour.  At least as things currently stand the parties are ad idem that the element is conduct, save for my friend’s alternative that it is a result from conduct in which case we say if they are right about that they will not get relief which makes it an inappropriate vehicle to test the matter.

HAYNE J:   Yes, thank you, Mr Lloyd.  Yes, Mr Street.

MR STREET:   Your Honours, in relation to the proposition whether it was open, can I just take your Honours to the notice of appeal to the Full Court and your Honours will find that at page 49.  That is the amended notice of appeal to the Full Court.  Can I take your Honours to page 50 and in relation to page 50, paragraph 1(e)?  This is the question:

Whether the Defence Force Appeal Tribunal erred in law –

Could I just pause?  The words “because” to “because” were expressly deleted at the time of the debate about the court - about whether my learned friend’s questions summarised the issues.  That appears at page 49 of the transcript.  I will take your Honour to them at the moment.  If your Honours go to paragraph 1(e):

the charge upon which the applicant was convicted was the subject of a fault element under s5.6.2 of the Criminal Code as to intention or recklessness –

So it is either/or -

in creating a result of conduct and upon which no direction was given to the Restricted Court Martial –

That is the first way but then can I take your Honours to (h) and here is the second question and this squarely throws up on any view the intention of the kind identified by your Honour Justice Hayne in respect of state of affairs and intention:

the charge upon which the applicant was convicted was the subject of an erroneous direction as to the –

I am sorry, your Honours, it is paragraph (g) sorry, at the bottom of the page:

the charge upon which the applicant was convicted was the subject of an erroneous direction that an intention to create a result of conduct was irrelevant –

Now, your Honours, it could not be clearer that the erroneous direction was squarely raised, in our respectful submission, in terms of whether the ground is open.

CRENNAN J:   Justice Dowsett has made the observation “never abandoned”.

MR STREET:   Your Honours, in relation to “never abandoned”, can I just hand up to your Honours to make it crystal clear it was never abandoned just an extract from the transcript – apologise that it was not dealt with in the application book but if I could just hand it up to your Honours to identify it.  In relation to the “never abandoned” if your Honours just turn please to page 49 your Honours will see that there I start at the top of the page making an application to amend the words “because”, which were

really just explanatory in the form of the question, and we make clear that we are maintaining the grounds and questions we have put because we have excised particular words in those questions. 

We then go on to say we accept that what my learned friend has done summarises but we do not abandon.  In our respectful submission, one could not take it further.  To the extent that my learned friend suggested that the issue of violence was not raised in terms of the meaning of “disturbance”, could I just take your Honours to the bottom of page 16.  It is squarely put.  To the top of page 25 line 10 it is squarely put.  It is put again in relation to page 30 and in reply your Honours will see it on page 76, line 15 in terms of the meaning of “disturbance”.  We say the issues were raised.  It is an appropriate vehicle and, in our respectful submission, an appropriate case for the grant of special leave.

HAYNE J:   To the extent to which your complaint concerns the directions given at trial this would be a matter in which there would have to be a fresh trial, would it not?

MR STREET:   Your Honour, it may or may not be.  I think because of all of this the accused is about to – his career in the service is effectively over at the end of this year.  Your Honour, we would not accept that it is one, necessarily, that would give rise to a fresh trial and I think Justice Dowsett adopted the approach that it may not but, your Honour, if it does, so be it.  Your Honours, I think there is a six month time bar limit in relation to the provision if it was to be the subject of a further charge.  So, your Honour, I am not sure ‑ ‑ ‑

HAYNE J:   I am not talking about fresh charge.  I am talking about retrial of the extant charge.

MR STREET:   Your Honours, it would be one where, if the Court were of the view that that was the appropriate course, we would accept that but, your Honours, we would respectfully submit that in this case the nature of the evidence that was given in relation to the unlawful racial slur and the intention to go and protest at means that this is not a case where it would be necessary to do so because it is clear that the evidence that the accused gave at trial was he never expected that he would not be heard when he attended upon Mr Snashall.  His intention was the subject of direct evidence as to intending to protest and it was that protest that he was advancing but, your Honours ‑ ‑ ‑

CRENNAN J:   That slur was a subject of an admission, I think?

MR STREET:   Yes, your Honour, it was.  If the Court please.

HAYNE J:   The Court will adjourn to consider the course it will take in this matter.

AT 11.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.43 AM:

HAYNE J:   There will be a grant of special leave in this matter.  How long do counsel estimate should be allowed for it?  It seems to me to be a day or less.

MR STREET:   I agree with that, your Honour.

MR LLOYD:   Yes, your Honour.

HAYNE J:   Counsel will be given the directions about time of submissions.  Those directions are to be complied with.

MR STREET:   If the Court pleases.

HAYNE J:   The Court will adjourn to reconstitute.

AT 11.43 PM THE MATTER WAS CONCLUDED