Macalister v The Queen

[1990] HCATrans 51

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M96 of 1988

B e t w e e n -

MAX MILTON MACALISTER

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J

TOOHEY J
GAUDRON J

Macalister

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 15 MARCH 1990, AT 12.30 PM

Copyright in the High Court of Australia

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MR D. GRACE:  If the Court pleases, I appear on behalf of

the applicant. (instructed by Grace & MacGregor)

MR L.W. FLANAGAN:  If the Court pleases, I appear with my

learned friend, MR G.J.C. SILBERT, on behalf of
the respondent. (instructed by the Solicitor

to the Director of Public Prosecutions)

MR GRACE:	I hand to the Court an outline of submissions on behalf of the applicant.
MASON CJ: Thank you.	Yes.

MR GRACE: If the Court pleases. This application raises

for consideration the jurisdiction of the Full Court

of the Supreme Court of Victoria in relation to

applications for leave to appeal against sentence.

The issue to be determined is whether sections 566

and 567(d) of the CRIMES ACT 1958, Victoria, read

in conjunction with section 77 of the PENALTIES AND

SENTENCES ACT 1985, Victoria, operate to confer

jurisdiction on the Full Court to entertain an

application for leave to appeal against sentence

in the circumstances of the applicant.

Section 77 of the PENALTIES AND SENTENCES

ACT reads as follows:

If under section 70(b) a court

orders that a person in default be

imprisoned, an appeal lies from that

order in the same manner as if that
order were a sentence imposed by that
court on convicting that person of an
offence and a court hearing such an

appeal may take and receive evidence (whether oral or written and whether

on oath or otherwise) of the financial

circumstances of the person in default,

whether or not that evidence could have

been but was not given to the court

against the order of which the appeal

is being brought.

Now, what happened to the applicant in this

matterwa.s th.atup-onconviction on indictment he

was sentenced to pay a fine of $7500. He was

ordered to pay that fine by way of instalments of

$5000, $1000, $1000 and $500.

He appealed to the Full Court of the Supreme

Court against conviction. It took somewhere in the

vicinity of eight or nine months before that appeal came on for hearing. In that time he did not make any attempt or, indeed, did not pay any part of the

instalment of the fine.

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The appeal against conviction was heard and determined by the supreme court in approximately

June 1988. In August or September 1988 - and the exact date appears on the summons which is included

in the application book - the registrar of the

county court was disposed to issue a summons - in

fact, on 23 August 1988; it appears at page 6

of the application book - to compel the attendance
of the applicant before the county court to
give reasons as to why he had not complied with

the order of the court to pay the fine.

At that hearing,which ultimately occurred

before the original sentencing judge, the court

had for consideration as alternatives the matters

set out in section 70 of the PENALTIES AND SENTENCES

ACT in relation to what they would do with the applicant because of his default. Section 70 sets out the various alternatives that a court may

adopt in the event of default and one of those

alternatives is imprisonment. Ultimately, His Honour

Judge Harris determined that imprisonment was the

only appropriate penalty and once determining that
that was the case, he then had to look at section 71

to determine what were the parameters of the sentences

that he could impose.

Under the PENALTIES AND SENTENCES ACT a fine

is expressed in terms of penalty units. A penalty

unit is $100. The fine of $7500 falls within

section 7l(l)(c) of the Act in terms of penalty

and that covers the range of fines between $2000

and $12,000. Judge Harris sentenced the applicant

to the maximum term of imprisonment notwithstanding

that the fine was in the mid-range and sentenced

him to six months.

TOOHEY J:	Mr Grace, has the applicant served any of that
sentence?
MR GRACE:	No, as a result of the decision of the Court of
Criminal Appeal of Victoria and as a result of some
forb~~rance on the part of the registrar of the
county court, the warrant has not been executed
pending a determination by this Court.of this question.

The applicant, after being sentenced to

six months imprisonment sought the advice of the

registrar of the county court as to what he could

now. The registrar pointed him to section 77 of

the PENALTIES AND SENTENCES ACT and one will see

from a perusal of the'Notice of Application for

Leave to Appeal Against Sentence'at page 23 of

the application book - and this application, it is

to be noted, was ccmpleted by the applicant himself

on advice by the registrar - he listed the grounds

and the grounds were:

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1.    Pursuant to section 77 of the PENALTIES

AND SENTENCES ACT 1985.

2.       I ask the court to vary the time structure

of repayments as it presently stands,

to allow me more - - -

MASON CJ:	We are not concerned with that, are we?
MR GRACE:	Not specifically but it is a matter that is
of relevant, in my submission, because of the terms of section 77 which allows the Court of Criminal Appeal to take into account and to receive and hear evidence
as to those matters.

TOOHEY J: But could the court, which imposed the sentence of

six m::mths imprisonment have varied the structure of

repayments? I appreciate there was an application by

your client for variation, but within the framework of

the registrar's summons could the court have done

anything but impose a sentence of imprisonment?

MR GRACE:	Yes. The options are set out in section 70 of the
Act and the options are these: the learned trial
judge could have ordered:

that the monetary penalty ..... be levied

by distress; or

order that -

he -

be imprisoned ..... ; or

require -

him -

to perform unpaid work pursuant to a

conmrunity service order -

and the sort of cormnunity based order that was

contemplated is set out in section 71(2) in terms

of hours that he would have to work.	In
subsection (d) he can:

order that the instalment order be

varied ..... ; or

adjourn the hearing -

under any terms he sees fit.

TOOHEY J: So, are you saying, Mr Grace, that the grounds of

appeal set out in the notice of application are, in

fact, truly grounds of appeal against the sentence

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imposed as distinct from grounds which your client

might have wished to raise under this own

application?

MR GRACE:	Yes. So, that is the framework of the legislation.
Now, when one turns to the CRIMES ACT 1958, one
will see that in section 566 there is a definition
of "sentence" and that definition reads as follows:

In the construction of this Part unless

inconsistent with the context or

subject-matter .....

"Sentence" includes any order of the
court or of the judge thereof made on
or in connexion with a conviction with
reference to the person convicted or

any property or with reference to any

moneys to be paid by him.

Section 567, in so far as it is applicable to an

application for leave to appeal against sentence,

reads as follows:

A person convicted on indictment .....

may appeal under this Part to the Full Court - and one goes to subsection (d) -

with the leave of the Full Court against

the sentence passed on his conviction,

unless the sentence is one fixed by law.

The Court of Criminal Appeal held that it

had no jurisdiction to entertain the application for leave to appeal against sentence because the order of the county court pursuant to section 70 of the Act was not a sentence passed on conviction

on indictment. It was not a conviction on indictment,

it was an order made well after conviction on

indictment, not contemporaneous with it and

therefore it held that it had no jurisdiction.

DAWSON J: Can the county court convict a person of an offence

except on indictment other than for relevant

summary offences?

MR GRACE:  No.

MASON CJ: Is there any work for section 77 to do, particularly

the first limb of it, if the Court of Criminal

Appeal is right?

MR GRACE:  Not as far as I am aware Your Honour.

DAWSON J: Well, it would apply to magistrates courts would it not?

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MR GRACE: Yes, well, there is a problem with the appeal

provision in the MAGISTRATEg COURTS ACT which does

not contemplate an appeal against such an order, also.

I was, perhaps, misleading Your Honour Mr Justice Dawson

before, certainly the county court has jurisdiction

when they are hearing appeals from magistrates courts.

DAWSON J: That is on appeal, that is different.

MR GRACE:	Yes, that is on appeal.
DAWSON~ J:	They either restore the conviction or they uphold the
appeai but that is not convicting.
MR GRACE:	Yes, the only other matters may be contempt matters which fall within the original jurisdiction of the county court under the COUNTY COURT ACT, but that would the only other matter that I would think of that could fall within the jurisdiction.
Now, section 568 of the CRIMES ACT is headed "Determination of appeals in ordinary cases". When
one goes to section 568(4) one will see sorre different
phraseology used, it reads as follows:

On an appeal against sentence the Full Court shall, if it thinks that a different sentence should have been passed or a different order

made, quash the sentence passed at the trial -

Now the words "at the trial" are not mentioned anywhere

else in this part of the Act~ or this division of the

Act. "At the trial" may mean the same as "on his

conviction" if those words are to be interpreted as

contemporaneous with conviction, but the subsection

goes further, it says -

and pass such other sentence or make such

other order warranted in law (whether more or

less severe in substitution therefor as it

thinks ought to have been passed or made,

and in any other case shall dismiss the appeal.

Now the use of the words, "or make such other

order warranted in law" contemplates that there are

situations which arise where orders are made which

are not sentences passed on conviction and falls

within the definition of sentence, clearly, in

section 566. So, on the one hand the Full Court has

got the power to make a different order and pass such

other sentence, or make such other order, as it sees

fit to do and on interpretation of the Court of

Criminal Appeal in this case, section 567(d) does not

allow it to do so.

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McHUGH J: But why are you taking us to this?

You do not seem to be placing much emphasis

on the words "as if that order" in 77, "as if

that order were a sentence imposed by that court

on convicting that person of an offence", it

just notionally converts the order intoasentence,

does it not?

MR GRACE:	Yes, that certainly - - -
McHUGH J:	I do not follow the Full Court judgment at the
moment, I must say.
MASON CJ:	Nor do I.
MR GRACE:	In paragraph 3 of the outline of my submissions -
MASON CJ:	I do not think we will trouble you futher at the moment,Mr Grace, we will hear what Mr Flanagan
has to say.  He may be able to elucidate the judgment
of the Full Court.
MR FLANAGAN:	You will regard it as a mercy, Your Honour, when I say this that we do not propose to put any argument
other than the reasons that were advanced by the
Full Court in support of their - - -

MASON CJ: Well, perhaps you will explain those reasons to us.

MR FLANAGAN: Well, the Full Court of Victoria has taken the view,

Your Honour, that their power to act as a court of

appeal in relation to matters where they have got a

jurisdiction to entertaina:ii:-appea.l: against sentence,

which is only upon leave, in any event, is derived

from Part VI of the CRIMES ACT. and that has been

decided in other earlier cases, Your Honour, such as

TAIT and earlier cases.

MASON CJ:	But they have held tr-:.ay cannot even entertain an application
for leave in a case such as this?
MR FLANAGAN: That is what they have decided, Your Honour, and

they have also done it in another case called SERGI

which deals with a similar situation. What they are

saying to the community at large is, I suppose and

I am not using their language, they are saying that

clearly the A intended to give the people in the

situation of the applicant here a right of appeal,

but the verbiage or language used just does not

do it within the jurisdictional basis and framework

under which the Full Court of Victoria operates and

it just has not been effectiveto do that. As an

example, if I might give it to the Court, in the

CRIMES (AMENDMENT) ACT of 1986 in section 18A -

this was the section which created a new procedure for
fixing minimum terms with respect to life sentences.

'Ihis is the sort of thing that we are going to be

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talking about in BUGMY later today and

cognizant of the fact that they wanted to give

the Full Court jurisdiction to entertain an

appeal from the fixation of a minimum, this

sentence was put in the Act and it was done in

these terms, if you look at subsection (2):

For the purposes of Part VI. of the

CRIMES ACT 1958 "sentence" includes an

order made under sub-section (1) fixing

a minimum term and the provisions of that

Part apply, with such modifications as are necessary, to an appeal against a

minimum term fixed by the Supreme Court

under sub-section (1) as they apply to an

appeal against the sentence passed on a
conviction.

Now, all the legislature had to do in the current situation, the one that the applicant here is

concerned about, is to put into the Act an amendment

to that effect. It has not done so, which stops

short of setting up a procedure for appeal.	The
court, never previously under the Full Court's

attitude to it, had jurisdiction to entertain an

appeal in these circumstances, it says this section

is not effective to achieve it, the simple way to

do it was for the legislature to put it right.

Now, they followed the same reasoning identically,
in the matter of SERGI which is the one that was put
on the list of authorities to the court which purports
to have been an appeal against an order made under

the CRIMES CONFISCATION OF PROFITS ACT of 198q,so

that the same situation is prevailing in Victoria

on the Full Court rulings at the moment that appellants

have got no right of appeal under that A~t for the

very same reasons that the Full Court have said that

they have not got a right of appeal under the

provisions of this Jct and the Full Court in SERGI-

DAWSON J:  Why cannot you read section 77 where it says:

on convicting that person of an offence -

as meaning "on convicting that person of an offence

in that court" which would mean by indictment or

upon indictment.

MR FLANAGAN:	I am sorry, I just missed the last part of what Your Honour said.
DAWSON J:	Why cannot you read section 77 where it speaks of
"by that court on convicting that person of an offence" as meaning "convicting that person of an offence upon indictment" and then you bring yourself

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within the provisions of the CRIMES ACT? I mean

it is the only way that the cotmty court can convict

a person - - -

MR FLANAGAN: Yes, Your Honour, this is why we said that we did

not want to advance any further argument other than

what the Full Court has already said.

MASON CJ: Could I ask you, did you advance any argument in the

Court of Criminal Appeal?

MR FLANAGAN:  No, Your Honour, the court took time. The objection

was taken by the cotmsel appearing for the Crown at the time and the appellant, of course, was not in a position to argue it,, so they took time to consider it

and they came back and gave this judgment saying

that the Crown contention was right in that respect

and they have followed it since, as I say, in respect

of the other Act.

If they are right about it the simple answer

lays in the hands of the legislature and moves are

already afoot, which is not the concern of this

Court, but if this Court were to read the verbiage

of the section or the words in a manner that is
contrary to what the Full Court has decided at the

moment, it is not something that the Crown or the

DPP are very concemed about, Your Honour, because it clearly was

intended .by the section. · I krJ.ow_ it, is ridiculous, Your Honour.

DAWSON J: Well, did anyone refer to the ACTS INTERPRETATION ACT,

or whatever it is called now? .

MR FLANAGAN: Well, if they did, Your Honour, it was in camera

it was not in the court as such. and, of course,

we know what the provision is in that section.

MASON CJ: Well, if that is the attitude of the Crown and the

DPP I do not quite understand why an objection was

taken to jurisdiction in the Court of Criminal Appeal.

MR FLANAGAN:  I think it was, with respect Your Honour, on the

instructions that I have, that at the time it was

meant to assist the court by asking them to have

a look and see did they really have power or not,

had the legislature messed it up, in effect.	I think
that was the point.	I do not think it was meant to

be any more than by way of assistance to the court

and that it has come a long way since then.

MASON CJ: Well, that is the sum total of your argument is it?

MR FLANAGAN: Well, Your Honour with respect, it is not in

our interests to deprive people of appeal; we did

not want to;	the Full Court did not want to but they
just take the	view on what they have stated there that

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is and we cannot see any other argument, with

respect, that would support their view other than

what they have said.

TOOHEY J:	Was the applicant, before this Court, told in
advance that there would be no argument addressed
by the Crown?
MR FLANAGAN:	I would not have thought so,Your Honour. Would Your Honour pardon me for a minute? No.

TOOHEY J: It just seems a long way to come for this exercise.

MR FLANAGAN: Well, that may be so,Your Honour, but once the

Full Court of Victoria had decided in two decisions,

where they were unanimous decisions, the Crown does

not have much opportunity to do anything about it other
than to come here, when called, or do something about

trying to get the legislation amended which steps have

already been put into train. They have not gone very

far yet because there have been other problems.

TOOHEY J: It may not be necessary.

DAWSON J:  Mr Fl~, .. can I ask you the same question I asked

Mr Grace? There is no wav in which you can be

convicted in the county court other than on indictment,

except possibly for contempt?

MR FLANAGAN: Well, that is one way but the other way, of course, is

if you came up from a magistrates court on appeal.

DAWSON J: Well, that is an appeal that is a different thing.

MR FLANAGAN: De novo, Your Honour, the evidence is all heard

afresh and the powers of the court are to convict if

they want to, to set aside, or remit

1)ut there are no others that I can readily call to mind,

Jour Honour. There can be no doubt, Your Honour, that

the Parliament intended to give a right of appeal and

~hat makes it very difficult for me.

McRUGH J: Lord Diplock said once, when the courts can see what

the target was that parliament meant to

it was the court's duty to make sure that target is

hit and not to make sure that it is not hit.

MR FLANAGAN: Well, and I think it is fair to say, Your Honour,

that the INTERPRETATION .OF LEGISLATION ACT in Victoria, in

its term· says the same thing. I fimd this very

difficult, Your Honour, but the whole of this case

is in a kernel - is where it says that- the. Full Court's

view is this- this is what they say in SERGI:

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I wish to make it clear that, however

willing the Court might be to entertain an

appeal or an application for leave to appeal

in these cases, the Court cannot simply assume

jurisdiction where none has been conferred.

To construe the sections as conferring

jurisdiction would require, I think -

and this has been agreed to by the others -

substantial man-handling of the language

of the section, and that is a task which

the Court cannot undertake. It is beyond

its power. Until, therefore, the matter

has been corrected by Parliamentary intervention,

it follows that in cases of this kind there

is no appeal'to this Court.

And, therefore, they dismissed them, but that is the kernel of it Your Honours.

MASON J:	It only required reading of the section rather than
manhandling of it.

MR FLANAGAN: Well, it _was the expression used by His Honour

the Chief Justice of Victoria, Your Honour, that

was their view that they thought that they would have

to cut it about and it was not able to be adapted

in terms of its language. But, of course, a different

interpretation on the language may be a different

matter altogether. I really do not think I have

been much assistance to the Court nor can I take

it any further,Your Honour.

DAWSON J: Well, thank you for such assistance as you have provided

Mr Flanagan.	Mr Grace I take it you do not want
to reply?

MR GRACE: Well, the only matters that I seek to draw the

Court's attention to are the matters raising in the outline

of submissions and, in fact, in paragraph 3

I, perhaps, pre-empt the matters that Your Honours

: drew . to'• the· attention of my learned friend.

It is the applicant's contention that the effect of section 77 is to deem an order or sentence under section 70 to be a sentence passed on conviction

on indictment and that is really the gravamen

of the applicant's case.

TOOHEY J:	But youputyourself within paragraph (d) of
section 567 of the CRIMES ACT?
MR GRACE:	Yes.

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TOOHEY J:	So if leave is granted and the appeal is allowed then the matter goes back to the Full Court on an
application for leave to appeal against sentence?
MR GRACE:	Yes.

MASON CJ: Yes, anything else Mr Grace?

MR GRACE:	The only other matter was whether on. a question of
costs the Court would entertain an application, in
the circumstances of this case?

MASON CJ: Well, you can make a submission.

MR GRACE: Well, it is obvious from what has fallen from

Your Honours that this is not a matter that, in

any way, should have been proposed by the respondent

and, in those circumstances, the applicant has

incurred costs to instruct me to present the argument

on his behalf and it would be Tilf submission that it is appropriate

in these circumstances, that costs be awarded to tne

applicant.

MASON CJ: What do you say about tha4 Mr Flanagan?

MR FLANAGAN:  I do not suppose we have agreed that the Full Court

is wrong, Your Honour-. We have endeavoured to briefly

support the Court of Criminal Appeal decision, but

as to costs we would not be heard to express a view

other than that, Your Honour.

MASON CJ:  Very well •.. ~ . The Court will consider its decision,

but I think we can expect to deliver judgment fairly

promptly.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

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