Marzilli v The Queen and Ors

[2013] HCATrans 324

[2013] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2013

B e t w e e n -

LUIGI MARZILLI

Applicant

and

THE QUEEN

First Respondent

KOSTA GIANNAKOPOULOS

Second Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Third Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 DECEMBER 2013, AT 12.48 PM

Copyright in the High Court of Australia

____________________

MS R.F. GRAY:  May it please the Court, I appear with my learned friend, MS E.L. SHRINER, for the applicant. (instructed by Iles Selley Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:  May it please the Court, I appear with my learned friend, MS N.M. SCHWARZ, for the first and third respondents. (instructed by Director of Public Prosecutions (SA) and Crown Solicitor (SA))

CRENNAN J:   Thank you, Ms Gray.

MS GRAY:   There is an affidavit of service in the appeal book in respect of service upon the second respondent. 

CRENNAN J:   Thank you.

MS GRAY: This matter concerns the scope of section 52 of the Constitution concerning Commonwealth places. A question arising on the application for special leave which has not previously been determined by…..of this Court concern section 52, is the extent to which section 52 of the Constitution extends Commonwealth legislative power to acts occurring, not just in the Commonwealth place, but in the State not being a Commonwealth place.

The applicant has been charged pursuant to section 244 of the Criminal Law Consolidation Act as applied State law in the Commonwealth place pursuant to section 4(1) of the CommonwealthPlaces (Application of Laws) Act.  The applicant’s central contention on this application for special leave is that the applicant has been charged with an offence not known to the law of the Commonwealth.

There are five propositions that the applicant advances in support of this contention and I propose to outline them before addressing the central contentions in more detail. The first contention that the applicant advances is that the applicant could have been charged in relation to the relevant conduct pursuant to the State law. The implication of this, and the consequence the applicant submits, is that the State law is not picked up and applied as applied State law in the Commonwealth place pursuant to section 4(3) of the Commonwealth Places (Application of Laws) Act.     

The applicant’s contention is that section 4(3) of the Commonwealth Places(Application of Laws) Act only operates to pick up and apply that State law which is not otherwise applicable. The second proposition that the applicant advances is that when consideration is had to the nature of the applied State law, there is no relevant Commonwealth head of power relied upon. The Commonwealth head of power that is relied upon is section 52 of the Constitution concerning Commonwealth places and the applicant’s contention is that that head of power does not extend to conduct which occurs, not only in the Commonwealth place, but also in the State, that is, this offence could not be characterised as a law with respect to the Commonwealth place pursuant to the characterisation test.

The argument, and third proposition, that the applicant advances in the alternative is that if the State law was picked up and applied, it would only be picked up and applied and have application within the Commonwealth place. The fourth proposition that the applicant advances is that there is a relevant limitation that operates upon these laws in any event. That is, a limitation which is drawn from the federal structure of the Constitution and, in particular, Chapter III and section 118 and, in the alternative, pursuant to the Melbourne Corporation’s principles.  That is, there is a limitation upon the extent to which the law of one polity can legislate to make something an offence with respect to the judicial proceedings of another polity.  In this case, the applied Commonwealth law, the applicant submits, cannot operate to make something an offence in relation to the State judicial proceedings.

The fifth proposition that the applicant advances is that, in any event, there is an inconsistency when the State law – as it was construed by the Full Court ‑ with the relevant Commonwealth provisions of the Crimes Act.  The State law as it was construed by the Full Court was held to have application to all judicial proceedings.  That is, judicial proceedings of the State and also judicial proceedings of the Commonwealth.  The applicant submits that, having come to that construction, what the Full Court then did is consider the question of inconsistency and we say, erroneously, by considering the relevant Crimes Act offence of offering a benefit to a witness which had application in federal judicial proceedings and then holding that the law was only picked up and applied in part.  That is, the State law was only picked up in its application to State judicial proceedings and would not be picked up and applied in its entirety.

This raises the important question of when the CommonwealthPlaces (Application of Laws) Act operates does it operate to pick up the Act in its entirety?  Does it operate to merely pick up the offence provision or does it operate to pick up only part of the offence provision that has application in specific circumstances which would give it quite a different operation to the operation that that law would have otherwise in the State?  This, the applicant submits, is to rewrite the law rather than to simply pick it up and apply it according to its tenure as the CommonwealthPlaces (Application of Laws) Act provides. 

The applicant submits that acceptance of any one of these five propositions supports the contention that the applicant advances that this is the offence with which the applicant has been charged, namely, the offence of offering a benefit to a witness in judicial proceedings as applied Commonwealth law, is not an offence known to the law of the Commonwealth.

Further, the applicant submits that the Full Court erred in the application and consideration of the manner in which the Listening and Surveillance Devices Act and also the Surveillance Devices Act being the Commonwealth law applied in the Commonwealth place.

CRENNAN J:   Are you going to direct our attention to any aspects of the judgment of the Chief Justice, particularly in regard to your arguments about the findings in relation to there being no inconsistency?

MS GRAY:   Yes, your Honour.

CRENNAN J:   Yes.  Very well, I will let you do that.

MS GRAY:   In answer to your Honour Justice Crennan’s question, if I could take your Honour to the judgment of the learned Chief Justice and, in particular, in relation to the question of inconsistency, this was considered at paragraph 25 of the judgment which is at appeal book page 122.  Your Honours will see that in paragraph 25 the question of inconsistency with the Crimes Act is considered in relation to the exercising and the construction is given to section 244 as having application to State courts when exercising federal jurisdiction. The Court then goes on to decide on the question of inconsistency that ‑ ‑ ‑

CRENNAN J: Well, you need to consider the operation, do you not, of section 4C(2) of the Crimes Act which is ‑ ‑ ‑

MS GRAY: Section 4C(2) of the Crimes Act which is considered in paragraph 27 of the judgment, and in so providing, the learned Chief Justice indicated in the reasoning process that section 4C(2) of the Crimes Act operated to remove the consistency that otherwise existed between the two laws.  It is submitted that this is directly contrary to the approach that the High Court took in the decision of R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at page 347 which is contained in the book of documents and, in particular, his Honour Justice Mason considered an equivalent provision which was then section 11. Does your Honour have the book of documents there? It is at page 220 at tab 11.

CRENNAN J:   Yes.

MS GRAY:   In the second paragraph down the applicant submits that the reasoning of Chief Justice Mason makes clear that the operation of an equivalent provision, namely, section 11 of the Crimes Act did not operate to remove inconsistencies.  Rather, all that provision did was to, in effect, provide that a person such as the applicant could not be charged twice and convicted twice and punished twice for the same conduct.  It did not remove inconsistency that would otherwise exist between the State and Commonwealth law.  The applicant’s submission is that if the State offence provision has the construction that the Full Court gave it, namely, to apply to both State and Commonwealth judicial proceedings, there is a direct inconsistency between this provision and section 37 of the Crimes Act.

KEANE J:   Ms Gray, can I ask you what is the utility in terms of the administration of justice of this Court, taking up the arguments you are putting to us, given that count 2 raises the possibility of criminal responsibility under the State law?  Why is not the convenient course, in terms of the administration of justice, simply to allow the trial to proceed on both counts?

MS GRAY:   Your Honour, the difficulty that the applicant faces is that the applicant – the particulars of count 2 are quite different to those of count 1, including as to the times in relation to which the conduct is alleged to have occurred.  The difficulty the applicant faces is that the applicant would face the prospect of the charge pursuant to count 1 which is the federal offence and would be, by virtue of the argument and the decision of the Full Court, in effect, precluded from running the argument and the submission that the applicant now advances, namely, it was not considered by the Full Court, namely, the extent to which that is not an offence known to the law of the Commonwealth by virtue of the fact that those acts occurred outside of the Commonwealth place.

Part of the conduct in count 1 is alleged to have occurred within the Commonwealth place, that is, at the Adelaide Airport, but part of the conduct is also said to have occurred in the State not being the Commonwealth place.  The difficulty for the applicant is that by virtue of the answer given to the Full Court and, it is submitted that the Full Court appears to have proceeded on a misapprehension that the entirety of the acts were those that occurred within the Commonwealth place – being the Adelaide Airport – and that is apparent from paragraph 44 of the decision of the learned Chief Justice.  If I could take your Honours to that paragraph, it is at page 127 of the appeal book and, in particular, halfway through the paragraph the learned Chief Justice states:

Moreover, Marzilli may have committed an offence against both s 244(1) of the CLCA, assuming he was not also somewhere else in the Adelaide Airport at the time of the telephone calls, by reason of his presence in a “State place” when he took Giannakopoulos’ calls, and may also have committed an offence against s 244(1) of the CLCA as it applied in the Adelaide Airport, because of the communication of his voice to Giannakopoulos who was in the Adelaide Airport.

It is submitted that the implication to be drawn and the inference from that paragraph is that the learned Chief Justice was, in effect, contemplating with respect to this one lot of offending, postulating that two offences could have been committed. It is clear from that paragraph that what was not considered, and was not considered in the reasons of the Full Court ‑ and the applicant accepts that this argument was not advanced – but what is the implication of the scope of section 52 of the Constitution in relation to its coverage both of acts occurring in the Commonwealth place and in the State?

This is a question that was considered in argument in the decision in Worthing v Rowell (1970) 123 CLR 89, and the applicant submits that from that decision no single test emerges. The decision of his Honour Justice Windeyer at page 131 of the judgment indicates that section 52(1) may extend to acts outside the Commonwealth place, and yet his Honour Justice Walsh, particularly at page 139, indicates that the question that is required is a characterisation question. That is, can this offence be characterised and the test put forward by his Honour Justice Walsh was of a direct and substantial connection.

If I could just take your Honours briefly to the decision in Allders in which this question was also raised in argument but it was expressly left open and that this question was expressly left open can be found in the decision of his Honour Justice Brennan at page 640.  Allders makes a number of things clear. The first is that this was a question expressly left open. It is a question that is a matter of general public importance. The applicant submits that the question of the operation of section 52, and whether or not it has coverage to acts outside of a Commonwealth place, is a matter of general public importance. It is a matter which is directly raised on the agreed facts and could be decided on the questions reserved for the Full Court. Allders makes clear that, again, a characterisation test is required and that the connection of the law with the Commonwealth place must be direct, practical and real, not tenuous or distant.

The applicant submits that when regard is had to section 244 of the Criminal Law Consolidation Act, it is clear that the practical operation – the pith and substance of that law – is to, in effect, look at conduct concerning judicial proceedings, and the applicants would say judicial proceedings of the State.  If regard is then had to the relevant territorial connection required, the territorial connection required for the offence to be committed is that not only that all the elements of the offence are made out but the acts occurred in the State.  That can be made out if the acts occur, in part, in the State.  The applicant submits that a consequence of that is that if only part of the acts occurred in the State, that would be sufficient for the State law to apply and the relevant territorial connection could be established without need to go to the acts occurring in the Commonwealth place.

This is a matter that was considered by the High Court in Lipoharv The Queen (1999) 200 CLR 485 and I will just leave your Honours with the comments of his Honour Chief Justice Gleeson in that case which emphasise the importance of the consideration of the operation of territorial nexus in the current times when there are acts occurring across jurisdictional boundaries. May it please the Court, those are the submissions in support of the application for special leave.

CRENNAN J:   Thank you, Ms Gray.  We will not trouble the respondents.

The present case is not a suitable vehicle for the grant of special leave to appeal, given the interlocutory nature of the proceedings and the circumstance that the factual foundation for the arguments, which the applicant seeks to agitate, has yet to be established. In addition, to strike out the count which relies on s 4 of the Commonwealth Places(Application of Laws) Act 1970 (Cth) would not dispose of the case against the applicant, given that the count based on s 244 of the Criminal LawConsolidation Act 1935 (SA) simpliciter would remain to be resolved.

The interests of justice do not require that issues which the applicant wishes to agitate should be considered by this Court in advance of trial in the ordinary way.  Special leave is refused.

Adjourn the Court until 2.00 pm.

AT 1.08 PM THE MATTER WAS CONCLUDED