Mellifont v The Queen

[1989] HCATrans 226

..

,

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B30 of 1989

B e t w e e n -

TERRENCE JOSEPH MELLIFONT

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

McHUGH J

Mellifont

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 1989, AT 12.20 PM

Copyright in the High Court of Australia

C2T 33/1/JM 1 12/10/89

MR W.J. CUTHBERT:  May it please the Court, I appear

for the applicant. (instructed by P.T. Murphy)

MR G.L. DAVIES, QC:  I appear with my learned friend,

MR G. GIBSON for the respondent, may it please the Court. (instructed by the Crmm Solicitor for the State of Queensland)

MASON CJ:	Mr Cuthbert.
r1R CUTHBERT:	May it please the Court, this apulication arises because of what happened in a criminal
trial of my client on a charge of perjury.
MASON CJ:	Yes, we have read the papers so we are familiar

with the circumstances and what happened.

You can proceed directly to the special leave grounds.

MR CUTHBERT:  Thank you, Your Honour. I have a brief

outline of sub~issions which I hand to the Court

and copies of the relevant Queensland statutes.

MASON CJ: 

Thank you.

MR CUTHBERT: 

They are all photostats oecause unfortunately

the COMMISSIONS OF INQUIRY ACT is now out of
print, evidently due to some heavy use.

MASON CJ: 

Yes.

MR CUTHBERT: 

The three matters that the applicant contends

raise matters justifying special leave to appeal are the question of the administration of oaths, the meaning of the word "testim:Jny" in the perjury

section of the CRIMINAL CODE, and finally the

use by the Full Court of section 29 of the

DISTRICT COURTS ACT in making the order which

is the subject-matter of the application.

(Continued on page 3)

C2T33/2/JM	12/10/89
Mellifont

MR CUTHBERT (continuing): In respect of the administration of the

oath, the Court would be aware from the record that

His Honour Judge Morley ruled that on an interpretation

of the COMMISSION.S OF INQUIRY ACT, particularly

section 6 being the relevant section, that on an

interpretation of the whole Act, there was a

legislative intention disclosed that the oath should

be administered by the commissioner. The oath not

having been so administered, therefore there was no

properly administered oath.

The Full Court adopted what the applicant

contends are the rules of common law which govern

the administration of oaths at common law. The

applicant contends that these have no role at all

to play in the instant case which should be governed

by the particular enabling statute. The

reference in Coke shows, in the second book at

Cap. 47, page 479, he states that:

A new oath cannot be imposed upon any judge, commissioner, or any other subject without authority of parliament, as here it was; but the giving of every oath must be warranted by act of parliament, or by the common law time

out of minde. ·

Again, in his third book, Cap. 74 page 165, he

says:

So as an oath is so sacred, and so deeply

concerneth the consciences of Christian men,

as the same cannot be ministred to any,

unless the same be allowed by the common law,

or by some act of parliament.

(Continued on page 4)

C2T34/1/DR	3	12/10/89
Mellifont

MR CUTHBERT (continuing): 'Ihe ~dministration of oaths in

courts of law were the creatio~ in my submission, of the common law and that appears to be accepted as quite settled law in the case of OMYCHUND V BARKER,

two references of which I have given.	I am
referring to the reference at 26 ER.

MASON CJ:  But, do you need to take us through this,

Mr Cuthbert? There is no challenge, is there,

to what the position is at common law? 'Ihe point

you seek to raise is whether or not the common

law approach can be applied in relation to the

administration of oaths by persons authorized by

statute to administer.

MR CUTHBERT:  That is so, Your Honour. Your Honour, I was

not able to discover any authority directly related

to the point here raised as to the administration

of an oath but I submit, as a matter of principle,

since this particular oath in this case does not

arise from the common law but arises from an Act

of Parliament, then the rules of common law have

no place in determining by whom or how the oath

should be administered. There is, so far as I

am aware, no direct authority-to that effect and

the Full Court in its judgment does not deal with

the matter. I was not counsel in the Full Court

but it appears that the argument there went mainly
upon the question of whether or not section 29 or

some such relief should issue and not upon the

substantive question that is here raised substantially,

in my submission, for the first time.

Now, the attitude or the decision of the

district court judge on the matter appears in the

appeal book at pages 9 to 11 where he makes a close

examination of the provisions of the COMMISST.m~s 01;'

INQUIRY AC~. referring in detail to the careful

spelling out of powers of the commissioner and to

instances where it is intended that the commissioner

has powers to authorize someone or to delegate
someone.	Those are spelt out in great detail.

(Continued on page 5)

C2T35/1/SH	4	11/10/89
Melli font
MR CUTHBERT (continuing):	He reaches a conclusion

which I submit is completely warranted by the

ordinary rules of interpretation of statutes,

that what the legislature intended in section 6

was that the connnissioner himself is the person

authorized to administer the oath. He does draw

some solace,without regarding it as authoritative,

from the fact that at the time he was sitting on

this matter in Brisbane the inquiry into judicial

misconduct was going on under the same section

andSir Harry Gibbs himself was personally swearing

all of the witnesses before that and the earlier Vasta

connnission. He does not rely upon that as

authoritative, but takes solace from that and I submit

that the practice adopted by Sir Harry Gibbs was

perfectly correct and in accordance with the

statute and should have been adopted by

Mr Connnissioner Fitzgerald and should have been

dealt with by the Full Court. Instead the

matter was dealt with in the judgment of

Mr Justice Connolly, which you will find- the

relevant part is at pages 31 to 34 of the appeal book where he
refers to the two cases of SHUTTLEWORTH and COLEMAN,

which once again are cases involving courts of law,

as indeed is the other case- I have included in the

list of authorities, the New Zealand case of HAYES.

Those cases, in my submission, really do not

touch the issue that is raised in the first point_

MASON CJ:  But why is not the passage quoted at the top of

page 33, which is an extract from a judgment in

SHUTTLEWORTH, equally applicable to administration

of oath and administration of an oath by a

connnissioner?

MR CUTHBERT: In SHUTTLEWORTH's case the court was dealing - - -

MASON CJ: And the second passage quoted irmnediately afterwards

specifically includes a tribunal as well as a court.

(Continued on page 6)

C2T36/l/CM	5	12/10/89
Mellifont
MR CUTHBERT:	That is so, if the Court pleases.	They were

referring to the provision of the EVIDENCE ACT

which is to the effect, as quoted at page 435:

''Every court and person now or hereafter

having by law or by consent of parties

authority to hear receive and examine

evidence is hereby empowered to administer

an oath to all such witnesses as are legally

called before them respectively.''

They said:

We think it is the court or other tribunal in every instance which must administer the oath.

It may administer it by any man's voice - by

directing any person to read the oath or to

recite it.

They were referring to a court situation and to a

particular statute where the court was of the view that

the statutory intention in that instance, perhaps

understandably since they were dealing with a court

situation, that the legislature intended the common

law rules to apply. There is.a somewhat similar

provision in our ACTS INTERPRETATION ACT in

Queensland, giving those which are not referred to in

the authorities, but any personal body which has the

power to hear and determine may administer an oath.

It is not suggested here that Mr Fitzgerald had the

power to hear and determine anything, and accordingly

that provision did not apply. The onlv relevant

provision is to be found in the enabling act and whereas in SHUTTLEWORTH's case the comments were, quite properly, made as to legislative intention

dealing with a court situation, I submit that they

have no application, one must look to the enabling

statute in each particular case. The court's comment

upon the enabling statute in SHUTTLEWORTH's case

must, of course, be confined to that particular

enabling statute.	The enabling statute we are
dealing with here is the COMMISSIONS OF INQUIRY
ACT.

(Continued on page 7)

C2T37/l/FK	6	12/10/89
Mellifont

MR CUTHBERT (continuing):  The same indeed nay be said of

the Canadian case of COLEMAN where once again

the court was dealing with a court situation
and the reference was made to the English authority

of TEW, which is in the list of authorities,

showing that that was a case reserved for the

opinion of the Court of Criminal Anneal bv the

chairman of General Quarter Sessions of the Peace. Tew had been tried and convicted of

larceny. The witnesses, prior to their examination

before the grand jury, were sworn in open court by

the crier of the court in the usual manner and
the question was raised whether the administration
of the oaths to the witnesses by the Crier of the

Court of Quarter Sessions in open court previous to

their examination before the grand jury is a

valid administration of the oath.

Justice Campbell, in stating what I submit

to be the rule developed by the corrnnon law -
necessary to develop by the common law because of
the rule that the only testimony that could be
received was testimony given on oath or later on by
those statutory alternatives to oaths, said,

''Since the constitution of this court this is

the most frivolous -

(Continued on page 8)

C2T38/2/JM	7	12/10/89
Mellifont

MASON CJ: That does not help us very much, does it? I mean,

it only establishes what the position is at corrnnon

law.

MR CUTHBERT:  At corrnnon law. May it please Your Honour, the

position at corrnnon law developed outside the
statutory situation altogether. To determine what

is the position of the tribunal such as the one we are dealing with here, one, I submit, must - there

is no point in having recourse to the corrnnon law

because the corrnnon law did not deal with it. One

must have recourse to the statute and see what the

legislative intention was.

MASON CJ: Well, it is a matter of working out what is the

content of the word "administer".in the context of

administering an oath.

MR CUTHBERT: Well, I submit, it would have its ordinary

meaning of the person doing the thing himself.

MASON CJ: Well, that is the question.

MR CUTHBERT:  It requires, in any event, if it please the

Court, I submit, a close examination of the statute.

Now, that was never attempted by the Full Court.

They really said, "The matter is not without

authority" and referred to SHUTTLEWORTH and to

COLEMAN as though that were the end of the matter.

I submit that is not even the start of the

matter. The proper approach to the matter, I

submit, was taken by the judge at trial and, in my

submission, he was perfectly right. The issue, as I say, so far as I am aware, is not - or the

distinction that I have attempted to draw in my
application here, is not one that I find readily

referred to - or referred to explicitly - in any

of the authorities to which I have referred. But,

as a matter of principle, I would submit, it is

quite a valid distinction and one that should

attract the attention of this Court which would lay

down what is the proper principle to be applied to

these many and varied bodies under multifarious enabling statutes all of whom, in some form or other, are given the power to hear evidence and to

administer oaths. That is the first point which,

I submit, would warrant the granting of the

application.

(Continued on page 9)

C2T39/l/DR	8	12/10/89
Mellifont

MR CUTHBERT (continuing):  The second point, Your Honour,

arises from a ruling made by His Honour the trial

judge and that is to be found in the appeal book

at page 21 and further, at pages 25 to 26,when

Mr Glynn asked for an amendment of the indictment

relying upon what was said in the West Australian

case of SOSSI.

Now, section 123 of the CRIMINAL CODE of

Queensland, with which section 124 of the West

Australian one is identical, deals with perjury

in these terms:

Any person who in any judicial proceeding .....

knowingly gives false testimony touching any

matter -

et cetera -

is guilty of a crime.

The essence being "a person who knowingly gives false

testimony." The second paragraph refers to the

immateriality:

It is immaterial whether the testimony is given

on oath or under any other sanction authorised

by law.

The Full Court of Western Australia in SOSSI's case,

the Court of Criminal Appeal of Western Australia,

said that that paragraph read in conjunction with the

whole of the section had the meaning that the testimony

need not be on oath or under any other sanction

authorized by law. It is the applicant's contention

that it must be one or the other or it is just not

testimony known to the law.

(Continued on page 10)

C2T40/l/SH	9	12/10/89
Melli font

MR CUTHBERT (continuing):  The Full Court of Western Australia

said "Well that would make, if that is the meaning

of testimony in the first paragraph of section 123 then the second paragraph adds nothing to it". With

respect, I would suggest the second paragraph makes

it quite clear that any argument advanced that

testimony in the first paragraph refers only to

oral testimony, is not correct, and it is out of an

abundance of caution that the frame:- of the Code has

stated that the testimony may be under oath or may

be under any of the other many sanctions authorized

by law. To suggest that perjury may be cormnitted

in a court where evidence is not given under either

of the sanctions that have essentially been

recognized by the courts, that is the oath or

something in lieu of the oath, supplied by a

statutory intervention is, in my_ subriissinn, indeed

a very grave departure from what has been understooa

for, indeed I would submit, centuries, as the meaning

of perjury.

It is my submission that the Full Court of

Western Australia is wrong; that the true meaning

of section 123 is that the testimony must be

testimony known to law, that.is on oath or under

some ntl:-er sanction. When one looks at paragraph 4

of the same section which says:

It is irmn.aterial whether the false testimony

is given orally or in writing -

I find it hard to suggest that the meaning of that

is that it be neither	given orally or in writing,
but in some other form.	I would submit that all

the drafter of the Code is doing is saying that
testimony may be either oral testimony or written
testimony, but it is still cau3:1t by the section,

and all that the legislature is saying in paragraph 2

is that the testimony may be given on oath or under

some other sanction authorized by law, but it must

be one or the other. (Continued on page 11)

C2T41/l/CM	10	12/10/89
Mellifont

MR CUTHBERT (continuing):  Now, the Full Court in dealing with

that matter - and it was dealt with by

Mr Justice Connolly at page 35 in the second

paragraph:

The Crown sought, no doubt as a matter of

caution, to meet the first point -

that is the point that Mellifont had not been duly

sworn -

namely that the oath was not duly administered,

by deleting from the indictment the words

"having been duly sworn gave evidence on oath

as a witness - - -

MASON CJ: Yes, well, Mr Cuthbert, we are familiar with what

happened in the case and we know what the Full Court

said about it, so that you do not have to tell us
the history of it. This point is only important if,

in fact, you succeed on the first point. It only

becomes relevant if you succeed on the first point.

MR CUTHBERT: Well, perhaps not, Your Honour. The order

ultimately made by the court where the appeal is

made is - it appears at page.48:

IT IS THIS DAY ORDERED that pursuant to

Section 29 ..... the Learned Judge enter up .....

permit the indictment to be amended in terms

of the application made to him and proceed to

try the indictment according to law.

If the trial judge had refused to allow the

amendment to the indictment because he said it

would make no difference in law because it would

still require the person to be sworn or to be

under some other sanction, the Full Court has said

well, apparently, on the basis, or implicitly, at

page 35, that the reasoning in SOSSI is correct

and that the difficulty about the administration of

the oath is overcome by the amendment of the

indictment in the form suggested.

(Continued on page 12)

C2T42/1/DR	11	12/10/89
Mellifont

MR CUTHBERT:  So that if there appears to be

something in the nature of an oath or some other

sanction one does not inquire into whether it was

in fact an oath or some other sanction duly
administered in terms of the section but one

proceeds on the basis that, regardless of whether

it was an oath or a sanction, the perjury section

applies.

MASON CJ: Yes, but your complaint is not really, is it, with

the form of the amendment made to the indictment

because the amendment merely follows the terms of

section 123.

MR CUTHBERT:  That is so, Your Honour.

MASON CJ: Therefore, it cannot be criticized on that score.

What your complaint is with is the reasons of the

Court of Criminal Appeal and, in effect, what was

said in the Western Australi?n case of SOSSI.

MR CUTHBERT: This is so. If I go back to trial, Your Honour,

on the indictment as amended, the trial judge, of

course, is bound to follow these -

MASON CJ:  Yes. You say that what the Full Court has said

and what the Western Australian court said will result

in incorrect directions being given to the jury.

MR CUTHBERT:  That is so, Your Honour.

McHUGH J: rhat might be in your interest, might it not? If

t~ere is no substance in your first point and your

second point is a good point, he might get

convicted on a ground that he should not have been

convicted on.

MR CUTHBERT:  Well, Your Honour, it would mean another trip

to the Court of Criminal Appeal and in the light

of the decision in the Full Court, one can see where

I would get there and it would mean another application -

I would have try my luck again before the High Court.

It is most, in my submission -

MASON CJ: It might have been desirable to defer your trip

to Canberra until some later stage in the proceedings.

MR CUTHBERT:  Well, Your Honour, costs in these matters are

very important to a person in my client's position and the question of if the trial judge were to, as indeed, he would have to, direct the jury in terms of the Full Court's reasons, I could then look

forward to what would be, without any disrespect to

the Court, but a futile appeal to the Court of

Criminal Appeal in the light of the Full Court's - - -

C2T43/l/SH 12 CUTHBERT 12/10/89

Melli font (Continued on page 12A)

MASON CJ: Yes. Well, I think we follow that, Mr Cuthbert.

MR CUTHBERT:  Yes, and so that is why we have chosen to come

before this Court seeking special leave at this stage
so that not so much the order made by the Court but

the reasoning in the judgments of the Full Court

can be corrected.

(Continued on page 13)

C2T43/2/SH	12A	12/10/89
Melli font

DEANE J:  But unless you succeed on the first point, there was

an oath, so this second point will be quite irrelevant

to the trial.

MR CUTHBERT:  Yes, that would be true, Your Honour.

DEANE J: So, why would you be going back to the Court of Criminal

Appeal and coming back up here, if you do not succeed

on the first point?

MR CUTHBERT: Well, if I succeed here on the first point,

Your Honour?

DEANE J:  I said, "Presume you fail on the first point and that

there was an oath administered pursuant to direction,

is the second point relevant any longer in this case?"

MR CUTHBERT:	No, it would not be, Your Honour.
DEANE J:	I think that was all that the Chief Justice was putting

to you, and that is that this point does not really
arise as a point of substance in this case, unless you

succeed on the first point. If you do succeed on the

first point, of course, it obviously does arise as a

point of general importance:

MR CUTHBERT:  The point is here in the wings, as it were, waiting

to be enlivened, depending upon the result on the other

matter. Your Honour, the third point on which special

leave is sought from the Court involves the use of section 29 in circumstances such as occurred here.

(Continued on page 14)

C2T44/l/FK	13	12/10/89
Mellifont

MR CUTHBERT (continuing):  Now, it is not my submission

that the Full Court does not have the power under

section 29 to do what it did in this particular

case but it is my submission that it should not

have been done and that, in criminal matters,

it is generally most undesirable that the ordinary
course of a criminal trial be interrupted such

as was interrupted here, especially since we

have, within the Code, provision of 669A which,

as recently amended, gives the Attorney-General

the section as it - subsection (2), as would appear

in Carter's seventh edition, was amended this

. year to read -the old section which gave the

Attorney-General power to refer a point on acquittal

but now gives him power to refer a point on acquittal
or if the person has been discharged in respect
of the charge after counsel for the Crown, as
a result of a determination of the court of

trial on that point of law has duly informed

the court that the Crown will not proceed further
upon the indictment in relation to that charge,

evidently the position now being that counsel

for the Crown may - the position now being that
counsel for the Crown may at any stage terminate

the criminal trial by entering a nolle prosequi

if an unfavourable ruling of·law has been given
and may take the matter to the Court of Criminal

Appeal for reference and one then assumes, come
back and start a fresh trial having had the point -

if the point is determined in favour of the Crown.

(Continued on page 15)

C2T45 /1 /ND	14	12/10/89
Melli font

MR CUTHBERT (continuing): That power is, indeed, a wide power.

It could, indeed it might be suggested that that

section 669A provides a method of curing such ills

in a criminal trial to the exclusion of section 29.

That is not the submission I would make to the Court.

The submission I would make to the Court, however,

is this: that when consideration is given to the

application of section 29 to a criminal trial,

ordinarily it should be only in the most exceptional

circumstances, particularly so, in my.

submission, in the light of section 669A of the

CRIMINAL CODE as it now stands, and that the use

by the Full Court in this particular instance
of the power under section 29 was a wrong exercise
of their discretio1:,i and so wrong as to call for the

intervention of this Court, bearing in mind the

statements that have been made from time to time by

this Court in relation to the interruption of the

ordinary course of a criminal trial where a
judge, in the course of that trial, has made rulings
on matters quite properly raised and essential in

the determination of the trial before him.

He has made rulings on them. There are avenues

open to the Crown by which appeals and corrections

of points of law may be had-without the interruption

of the criminal trial. It is for those three

reasons in the submission of the applicant that this

Court should grant special leave in the instant case.

DEANE J: What would be the order you would ask for on your

section 29 point?

MR CUTHBERT:  That the decision of the Full Court be reversed.

DEANE J: And what

MR CUTHBERT:  . But of course, a mere reversal of the

decision is of no real assistance to the applicant
unless the rulings on the other points are also

contained.

(Continued on page 16)

C2T46/l/DR	15	12/10/89
Mellifont

MR CUTHBERT (continuing): Once again this is the

difficulty, I submit, that arises when you have the

use of section 29 at this stage of a criminal trial. If all of these matters are dealt with at the end of

a criminal trial, after we have got a verdict and we
have come before the court and argued them, these

difficulties do not arise, but I can - - -

DEANE J:  I see the force in what you say about the use of

section 29, but I really do not see that it leads to

anywhere at this stage. I mean, your argument was

relevant to whether the Court of Criminal Appeal should

intervene, or the Full Court but - - -

MR CUTHBERT:  Yes.

DEANE J: - - - it is hard to see that it leads anywhere if you get up

on it here.

MR CUTHBERT: Well, it leads nowhere, Your Honour, unless - if

this Court were to decide that that did raise a special

leave point, and decide they should not intervene, I

concede that gets me nowhere, unless the other matters

are dealt with, Your Honour. I concede that, Your Honour.

It is for those reasons, Your.Honour, that I submit that

special leave should be granted in this particular case.

MASON CJ: Yes, thank you, Mr Cuthbert. The Court will take a short

adjournment in order to determine the course it will

take in this matter.

AT 1.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.09 PM:

MASON CJ:	The Court need not trouble you, Mr Davies.
We have had considerable difficulty with the question of the effect of the second paragraph of section 123 of the Queensland CRIMINAL CODE, and the correctness of the Full Court's decision on this point is of
importance in the present case only if the applicants
submission on section 6 of the COMMISSIONS OF INQUIRY ACT
1950 to 1989 is correct.  On that question, however, we
consider that the decision of the Full Court was plainly correct. Accordingly the case is not an appropriate case for the grant of special leave, and the application is refused.
MR DAVIES:	We ask for costs, may it please the Court.

MASON CJ: Yes, Mr Cuthbert?

C2T47/l/FK	16	12/10/89
Mellifont

MR CUTHBERT:  If it please the Court, might I be heard on the

question of costs?

MASON CJ:	Yes.
MR CUTHBERT:	Although this is in the nature of a matter in the

civil jurisdiction, it has arisen in the circumstances

that I have outlined in the course of a criminal trial.

Ordinarily this - if the ordinary course had been

followed, we would be applying to this Court in a

criminal matter, and the usual provision as to

non-awarding of costs, I submit, would apply, and it

should apply, with respect, in this instance, so I ask

that no order be made as to costs.

(Continued on page 18)

17

C2T47/2/FK	12/10/89
Mellifont

MASON CJ: Yes, Mr Davies.

MR DAVIES:  May I say something about that, Your Honour. When

the special public prosecutor indicated to the
district court judge that he intended to apply for

an order in lieu of mandamus to the Full Court, with

a view to obtaining an adjournment, he gave an

undertaking to the district court judge to pay the

costs of the respondent in the Full Court but in the

Full Court ?nly - that being because it was the Crown's application -

but in our respectful submission, nothing our learned

friend said really affects that and indeed that

does not affect our application for costs here, in
view of the fact that the decision of the Full

Court was clearly right, there should be no reason why the successful respondent should not

be ordered to receive the costs.

MASON CJ:  The Court will make no order for costs.

The Court will now adjourn until 9.30 am in

Sydney and in Melbourne tomorrow.

AT 1.12 PM THE MATTER WAS ADJOURNED SINE DIE

C2T48/l/CM	18	12/10/89
Mellifont