Mahmud v The Queen

[2011] HCATrans 106

[2011] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S137 of 2011

B e t w e e n -

JIHAD MAHMUD

Applicant

and

THE QUEEN

Respondent

Summons for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 18 APRIL 2011, AT 9.29 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR G.D. WENDLER, for the applicant.  (instructed by John Hertz & Associates)

MR C.K. MAXWELL, QC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HIS HONOUR:   Yes, Mr Street.  Mr Street, you may assume that I have read the papers and I am generally familiar with the matter.  A possible course of action that might be followed would be to refer the hearing of the application to an enlarged Bench to be fixed for hearing on the same day as the matter of Muldrock, which presently is anticipated to be in the May/June sittings, perhaps in the first week of June, and to have the parties then argue at least the constitutional question as on an appeal.  What do you say as to following a course of that kind?

MR STREET:   Your Honour, we would accept that that would be an appropriate and attractive course to deal with the matter, given the overlap.  Your Honour, there was one matter ‑ ‑ ‑

HIS HONOUR:   Well, you speak, Mr Street, of an overlap.  The only overlap, as I understand it, is that you raise a question about the validity of the legislation which is in issue in Muldrock.  Is that right?

MR STREET:   Yes, your Honour, your Honour is quite right.  Your Honour, the matter I was going to mention is that – and I would have referred to it in written submissions if I had identified it – but there is a similar provision in the South Australian legislation to section 54A, and that is in section 32A.  They have a similar provision that refers to the mandatory minimum non‑parole period for certain offences.  It has been the subject of ‑ ‑ ‑

HIS HONOUR:   What is the South Australian Act that you are referring to?

MR STREET:   It is called the Criminal Law (Sentencing) Act 1988, and the relevant section is section 32A. It has been the subject, your Honour, of a related, but not similar, challenge in the Court of Criminal Appeal in South Australia in a decision called Ironside v Police. It may be reported, your Honour, I only have the citation from which is [1999] SASC 301. Your Honour, it did not involve though the same constitutional issue that we raise here. If your Honour pleases.

HIS HONOUR:   Now, if we were to follow that course, Mr Street, that would leave as an open question whether the Court would proceed beyond

the constitutional question to consider as on appeal the substantive arguments that you raise.  To that end if we were to follow the course proposed it may be that you should put the whole of your argument on the assumption contrary to your chief submission that the legislation is valid.

MR STREET:   If your Honour pleases.

HIS HONOUR:   Yes, thank you.

MR STREET:   Thank you, your Honour.

HIS HONOUR:   Perhaps I will hear from Mr Maxwell.  Mr Maxwell, I understand the force of what you say about the absence of overlap.  The only overlap I presently identify – and no doubt I will be liable to correction either immediately or later – is that the same Act is involved, but given that there is this challenge to validity, should we not deal with the challenge to validity before we dive into the merits of the Muldrock appeal?

MR MAXWELL:   Well, your Honour, I can see the force in what your Honour says, and the respondent does agree that the only thing in common between the two is this section 54B.  The difficulty that the respondent sees, in effect, tacking on this case with Muldrock is that, true it is if the constitutional point was successful then certain things would follow on Muldrock, but Muldrock has been successful on a special leave application.  Your Honour, just in the course of discussion with my learned friend, then made a point that the validity of the legislation is in issue in Muldrock.  With respect, your Honour, I am in Muldrock as well and it appears ‑ ‑ ‑

HIS HONOUR:   No, I had not intended to say that any party in Muldrock was challenging validity.  I do not understand any party there to challenge it.

MR MAXWELL:   No.

HIS HONOUR:   But if, in this application, we were to determine that there was some constitutional infirmity, I do not think I would be anticipating too much to think that the appellant in Muldrock might fasten on to such a point.

MR MAXWELL:   No, it may well do, your Honour, even though it would conflict with the argument that is put in Muldrock.  The respondent does not wish to say anything more about that and can understand where the Court is coming from, but the second point in this and that the respondent submits why the case of Mahmud should not be, in effect, tacked on to a full hearing is that if it followed the usual course and went before for a special leave application, then obviously two or three Judges of this Court would look at the strength of the constitutional point.

I know that time is a bit of an issue now, but, your Honour, if it is not a strong case, if it is not an appropriate vehicle for the Full High Court to look at, then it should not get leave. The respondent submits here that it is not a strong case and just shortly the argument on that is that my learned friend submits that it is an impermissible intrusion to judicial discretion and so infringes the Constitution. The respondent would submit against that and that in its very terms section 54B of the Crimes (Sentencing Procedure) Act allows a good deal of discretion.

My learned friend in his written submissions referred to the second reading speech in 2002 of the then Attorney‑General to support the proposition that it is this anchor point, that it is this rigid fettering of a judge’s discretion.  However, at other parts of that speech, the Attorney‑General tried to make it very clear that whilst they were introducing the standard non‑parole period, that there were still a number of areas of discretion in the Act and there are.

Section 21A, for instance, which is referred to in section 54B, allows the sentencing judge to decrease the sentence below standard non‑parole period and it can go as far, which is recognised by 54C, as giving a non‑custodial sentence.  Section 54C allows a sentencing judge to give a non‑custodial sentence in any – well, not in any – it would not happen in anyone but there are 24 offences in the list that standard non‑parole period applies to.  They range from murder down to far lesser offences.  The highest standard non‑parole period is 25 years for murder, the lowest is three years.

The importance that the respondent submits here, your Honour, is that there is a great deal of discretion within the Act and that, whilst the standard non‑parole period is an attempt by the legislature to introduce a degree of uniformity to sentencing in New South Wales, it does not do so at the expense of excluding judicial discretion.  That would be the essence of the respondent’s argument if it went ‑ ‑ ‑

HIS HONOUR:   I understand that, Mr Maxwell, and you may be right.  You may not be.  There is the question.  But is there any further reason you would advance not to put it in for hearing on the same day as Muldrock?

MR MAXWELL:   No, I have put all the arguments, your Honour.

HIS HONOUR:   Thank you, Mr Maxwell.

MR MAXWELL:   Thank you, your Honour.

HIS HONOUR:   Then counsel, if we were to go down that path, we would need to set a timetable and my present inclination would be that the parties should follow, subject to what they may later say, a timetable that would run this way.  The applicant’s submissions as on appeal to be filed and served by Monday, 9 May; respondent’s submissions in answer by Monday, 16 May; since it is likely there will be interveners, any intervener’s submissions by 23 May and applicant’s reply and all of the parties’ lists of authorities by 27 May.  Now, do counsel want to be heard following that timetable?

MR STREET:   No, your Honour.  We would seek to serve the 78B notice, obviously, forthwith.

HIS HONOUR:   Yes, well, what I have in mind with that, Mr Street, is that the 78Bs should go no later than, I suspect, 2 May, together with a copy of the order that I make so that the Attorneys know where the matter is up to.

MR STREET:   If the Court pleases.

HIS HONOUR:   Then, subject to anything counsel may say as to the form of the proposed orders, I will order:

1.The application for special leave is to be expedited.

2.The application is to be referred to an enlarged Bench and fixed for hearing on the same day as the matter of Muldrock v The Queen, on which day the parties to this application are to be in a position to argue the application as on an appeal.

3.I give directions for submissions and other steps as follows: applicant to give notice under section 78B of the Judiciary Act 1903 (Cth), together with a copy of this order on or before Monday, 2 May; applicant’s submissions to be filed and served on or before Monday, 9 May; respondent’s submissions in answer filed and served on or before Monday, 16 May; any submissions on behalf of any intervener to be filed and served on or before 23 May and applicant’s reply, if any, to be filed and served on or before Friday, 27 May, together with all parties’, and interveners’, lists of authorities.

Is there any other order which counsel considers I should make?

MR STREET:   No, your Honour.

MR MAXWELL:   No, your Honour.

HIS HONOUR:   Yes, thank you.  There will be orders in those terms.

AT 9.43 AM THE MATTER WAS CONCLUDED