Minister for Immigration and Ethnic Affairs v Daniele
[1981] FCA 247
•17 DECEMBER 1981
And: AGAZIO DANIELE
No. G.2 of 1981
Administrative Law
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fisher, J
Davies, J
Lockhart, J
administrative Law _ deportation order _ respondent an Italian citizen convicted of manslaughter and sentenced to period of penal servitude _ upon release of respondent a deportation order made by Minister for Immigration and Ethnic Affairs pursuant to s.12 of the Migration Act 1958 (Cth) _ Administrative Appeals Tribunal recommended revocation of order and remitted matter to Minister for reconsideration _ Minister appeals on question of law pursuant to s.44(i) of Administrative Appeals Tribunal Act 1975 (Cth) _ issue estoppel _ purposes for which the Tribunal is entitled to consider all evidence _ whether Tribunal took into account irrelevant considerations _ whether Tribunal made findings on certain material questions of fact _ whether Tribunal treated deportation as part of punitive processMigration Act, s.12
Administrative Appeals Tribunal Act, ss.33, 44(i)
SYDNEY
#DATE 17:12:1981
THE COURT ORDERS(1) that the appeal be allowed and that the matter be remitted to the Administrative Appeals Tribunal for re-hearing;
(2) that leave be reserved to the parties to apply in relation to costs.
This is an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal recommending to the Minister of State for Immigration and Ethnic Affairs that his order dated 24 June 1980 that Agazio Daniele be deported from Australia be revoked. His Honour remitted the matter to the Minister for re-consideration in accordance with that recommendation. The matters in issue in the appeal arise from the consideration which his Honour gave to the conviction which Mr. Daniele suffered in the Supreme Court of New South Wales on 16 December 1975 for the manslaughter of Guiseppe Canuto on 10 April 1975.
In a review by the Administrative Appeals Tribunal of an order for deportation made under either s.12 or s.13 of the Migration Act 1958, it is not the function of the Tribunal to review the propriety of the relevant conviction. That is the function of appellate courts. While it stands, the conviction invokes the power to make the order and in itself affects the reputation or standing in the community of the convicted person. An immigrant seeking to be permitted to remain in Australia so that he may become fully assimilated into the community may be met with an argument that once convicted he no longer meets the standards required of persons, who in the exercise of discretion, will be permitted to enter or to become absorbed into the community. And the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.
But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the circumstances of the crime may or may not be admitted. The transcript of the evidence at the trial may or may not be put in evidence. The learned trial Judge's summing up or his remarks on sentence may or may not be in evidence. If the transcript of the proceedings at the trial or the learned trial Judge's summing up or his remarks on sentence are in evidence before the Tribunal, they may be taken as evidence of the matters which they state for s.33 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal is not bound by the rules of evidence. But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. There may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.
The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and to form its own judgment on all the matters which are relevant to the exercise of the power of deportation. Many of the matters which were in issue before the criminal court will also be either in issue or relevant to matters in issue before the Tribunal. But, because of the scope of the enquiry before the Tribunal will ordinarily be much wider than the enquiry before the criminal court, it is likely that the Tribunal will have to examine the criminal activity with eyes different from those of the criminal jury. The total pattern of the deportee's behaviour, including his criminal behaviour, his personality and characteristics, the risk of recidivism, the risk of harm to the community should be remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value.
No principle of estoppel precludes an examination of these matters. A conviction does not constitute an estoppel in rem save as to the fact of conviction. Spencer Bower & Turner, Res Judicata, 3rd ed, pp.215, 221. And, whatever may be the conflict between R v Storey (1978) 140 CLR 364 and Director of Public Prosecutions v Humphrys (1977) AC 1, no issue estoppel will arise. Thus the criminal proceedings were between the Crown in right of the State of New South Wales and the appellant whereas the parties to the review were the appellant and the Federal Minister of State for Immigration and Ethnic Affairs. Moreover, the review was conducted by a body, the Administrative Appeals Tribunal, which has an independent duty to investigate for itself the facts of the matter. The Tribunal is not restricted by any estoppel which binds a primary decision-maker or upon which the primary decision-maker may rely.
An example of the application of the principles which I have stated will be seen in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. That was an analagous type of case for it concerned a barrister who had been convicted of manslaughter and of whom the question was whether or not he should be disbarred from practice. In that case, as in the review of ss.12 and 13 deportation decisions, the conviction was relevant for it at least detracted from the standing and reputation of the barrister. It was in itself a disgrace. An issue which was considered by the Court was whether the decision to disbar should take into account also the full circumstances of the offence and the general character and reputation of the barrister. Though the learned members of the Court each approached the matter somewhat differently, there was a majority view that matters other than the conviction itself may and in that case should be taken into consideration. The Chief Justice, Sir Owen Dixon, said at page 283 :
'In the Supreme Court the view seems to have been adopted, at all events by Street CJ, that the conviction and sentence constituted grounds in themselves for disbarring the appellant and that the court should not be concerned to go behind them and review the facts or circumstances. No doubt the fact of the conviction and sentence is in itself a matter of great importance but I do not agree that all the circumstances lying behind them should not be taken into consideration before determining that the appellant should not remain a member of the Bar.'
His Honour then looked at all the material which was before the Court including the depositions before the Coroner. At page 285 his Honour examined evidence that had not been given at the trial and said :
'He (the police sergeant) was not, however, called at the trial by the prosecutor and the appellant's counsel was forced to put him in the witness-box, where his evidence proved much less favourable to the appellant than had his depositions, and where he was not exposed to cross-examination on the appellant's behalf. In this and perhaps other respects the trial was not altogether satisfactory. But the fact remains that the jury completely rejected the appellant's case and on ample materials convicted him of manslaughter. Further, the judge presiding at quarter sessions treated his offence as very serious and imposed a substantial term of imprisonment."
His Honour concluded, at pages 285-6,
'In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them.'
In his final conclusion, the Chief Justice was in the minority. He placed rather more weight upon the conviction than did the majority but nevertheless, in the course of his reasons, he examined and considered relevant the whole of the evidence which was before the Supreme Court in the disbarment proceedings.
McTiernan J also was in the minority in his ultimate conclusion and, as his judgment was brief, I need not deal with it.
Fullagar J said, at page 288 :
'In a case of this kind it is essential, in my opinion, to begin by defining the ground on which an order of disbarment is to be made. It is stated in general terms by saying that the person in question is not a fit and proper person to be permitted to practise at the Bar. The next question is _ at what facts is it proper to look in order to see whether that conclusion is established? The answer must surely be that we must look at every fact which can throw any light on that question. But, descending to particularity, is it the conviction that is the vital thing, unchallengeable and conclusive of the ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? To my mind, there can be only one answer to these questions. The conviction is not irrelevant : it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question,and to see whether we are really justified in saying that a man is disqualified from practising his profession. I would only add that there is one thing that we manifestly cannot do. We cannot look behind the conviction to the extent of saying that there is much evidence that the appellant was driving his car in a state of intoxication, and refuse to look any further behind it.'
At page 289 his Honour said,
'There was, at the appellant's trial, ample evidence on which a jury, properly directed, could find that the appellant, driving his car in a grossly negligent manner when in a state of intoxication, caused the death of a motor cyclist with whom he came into head-on collision, and that he was therefore guilty of manslaughter. The appellant did not appeal to the Court of Criminal Appeal, and he could not, of course, challenge the conviction as such in these proceedings. In the Supreme Court, however, his counsel sought to have all the circumstances of the case and the evidence on the trial investigated _ not for the purpose of maintaining that the verdict could not be supported, but with a view to showing that a verdict of acquittal would not have been an unreasonable verdict, and that in any case it could not be said to be established beyond doubt that the appellant's conduct was so disgraceful as to justify his being disbarred. It appears to have been thought by the Supreme Court that it was not permissible to look behind 'the plain facts that a member of the Bar was convicted of manslaughter by a jury and was sentenced to a term of imprisonment'. I have already stated my inability to accept this view."
At page 291 his Honour said,
'I feel bound to examine the circumstances of the case in detail for myself. When this is done, I think that two things appear. The first is that there is a reasonably probable version of the whole episode which, as I think, leaves one with a grave doubt as to whether the ultimate issue in the case can properly be found against the appellant. The second is that there were at least two unsatisfactory features of the trial which resulted in the appellant's conviction.'
At page 296 his Honour concluded,
'The matters which I have mentioned, and especially the grave misdirection, mean to my mind that the conviction as such is deprived, for present purposes, of practical significance. Then, when one looks at the evidence apart from the verdict, it seems to me impossible to say that it justifies a finding that the appellant is not a fit and proper person to practise at the Bar.'
Kitto J's approach was different. At pages 298-9 his Honour said :
'In the present case it is not for conduct, but because of a conviction, that the appellant has been disbarred. The Supreme Court, in my opinion, was right in refusing to go behind the conviction, since it had not called upon the appellant to show cause in respect of anything else. If the issue before the court had been whether the appellant's conduct on the occasion to which the conviction related had in fact been such as to disqualify him from continuing a member of the Bar, that conduct would have had to be proved by admissible evidence.'
It will be noted that his Honour based his view that the Court was right in refusing to go behind the conviction upon the fact that the barrister had not been called upon to show cause in relation to a wider issue. I pause to say that in a review of an order for deportation, issues other than the conviction ordinarily are raised and the criminal's total conduct ordinarily is in issue. Having limited the ambit of consideration to the conviction, Kitto J upheld the appeal on the ground that, as the conviction related to an isolated occasion and was not a conviction of a premeditated crime or itself indicated any tendency to vice or violence or lacked any probity or had any connection with or significance for any professional function, then the conviction and the imprisonment did not disqualify the barrister from practising at the Bar.
Taylor J approached the matter much in the same manner as did Fullagar J. At page 302 his Honour said :
'The Full Court, however, was not concerned with the appellant's conduct as such; it was concerned merely with the fact of conviction and sentence and the underlying facts were thought by the members of the court to be irrelevant. But, whilst I respectfully agree with the observations of the learned Chief Justice concerning the high standard of conduct expected and required of members of the Bar, I find it impossible to assent to the proposition that proof of the fact of the appellant's conviction and sentence, without more, made it inevitable that an order should be made directing that his name be removed from the roll of barristers; the vital question, in my opinion, in such cases, is not whether a practitioner has been convicted of an offence against the criminal law but whether his conduct has been such as to show that he is unfit to remain a member of his profession.'
At page 303 his Honour said,
'In the circumstances it is, I think, incumbent upon us to examine the facts which led to the appellant's conviction for the purpose of seeing whether they disclose conduct on his part which shows that he is not a fit and proper person to remain a member of the Bar.'
His Honour then examined the whole of the evidence which was before the Supreme Court in the disbarment proceedings. At page 304 his Honour said :
'There is, however, other relevant evidence before us which ought to be considered and for reasons which will readily appear, this Court is in a far better position to consider it than the jury was upon the appellant's trial.'
His Honour concluded, at page 308,
'For the reasons I have given it is, I think, possible to say, firstly, that the mere fact of the appellant's conviction involving, as it may have done, a finding that, on the occasion in question, he drove his car with gross negligence and under the influence of intoxicating liquor did not justify the removal of his name from the roll of barristers. Secondly, it may be said that, when the whole of the evidence now available is examined, the fact of the appellant's conviction, as a factor for consideration, loses a great deal of its weight and, finally, that it is impossible, upon the evidence, to conclude that the appellant's conduct on the occasion in question was such as to make it appear that he was unfit to remain a member of the Bar."
Those judgments, in my view, bear out the principles I have stated and adequately illustrate the manner in which an enquiry should proceed when a conviction is a relevant but not a determinative factor.
I have discussed at some length the approach which it is proper to take to such cases for Mr. K. Mason, QC, senior counsel for the respondent, submitted that the Tribunal was bound to accept the conviction and the facts necessarily found by the jury. In my view, the Tribunal could itself examine all relevant facts including the facts behind the conviction, as was done in Ziems' case, and, in my view, in the review of the order that Mr. Daniele be deported, it was proper that it should do so.
Nevertheless, although the learned Deputy President could and should have looked at those matters, it appears to me that this function of the Tribunal was not adequately performed and that there was, in the reasons for decision, undue concentration upon the circumstances of the trial. Early in his reasons for decision, the learned Deputy President said,
'I think that it accords with sound principles to examine with care the conduct for which an applicant was convicted in order to ascertain what was the case made against him and which must necessarily have been accepted by the jury in giving their verdict.'
His Honour referred to the remarks of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 489 that,
'Although the Tribunal cannot go behind the conviction upon which a section order is based, the significance of a conviction in the exercise of the discretion under section 12 will vary from case to case. It is therefore necessary to identify the conduct of which the alien has been found guilty. In the present case, for example, to say that the applicant was convicted of the supply of Indian hemp is not adequately to describe the conduct for which he was convicted. It is necessary to ascertain what was the case made against him which must be taken to have been accepted by the jury in returning their verdict, and I shall presently refer to that case.'
But Brennan J did not I think intend to say that a review by the Administrative Appeals Tribunal of a deportation order made by the Minister for Immigration and Ethnic Affairs necessarily starts with or is substantially limited to an examination of the criminal trial for the purpose of identifying conduct of which the deportee had been found guilty. Indeed, that is not what Brennan J did in Pochi's case. His Honour undertook the task, which in my view is imposed upon the Administrative Appeals Tribunal by the function which it performs, of ascertaining for himself what were all the facts, matters and circumstances relevant to a decision as to whether Mr. Pochi should be deported. In my view, in the decision under appeal, the carrying out of the function which was imposed on the Tribunal, that of ascertaining all the facts, matters and circumstances relevant to Mr. Daniele's deportation, was restricted by an undue concentration upon the summing up to the jury by the learned trial Judge.
It appears from the evidence that, within four years of his entry to Australia, Mr. Daniele, an Italian migrant and a single man, had taken to carrying with him a loaded Beretta pistol. It was the practice of Mr. Daniele to take the gun to work though not on social occasions. On the night of 10 April 1975, Mr. Daniele had with him his pistol when he went to a social club. He and Mr. Canuto, the deceased, left the club either together or about the same time. In his remarks on sentence, the learned trial Judge described the shooting, which occurred outside the club and in which Mr.Canuto was killed, in these terms :
'Looked at quite objectively, the shooting could be described as a shoot-out in true gangster-land fashion by two armed men, and it took place in Parramatta Road, Petersham at 7.30 pm on late shopping night at a time when the street was thronged with shoppers.'
Thus, the issues before the Administrative Appeals Tribunal were wider than were the issues before the jury. It was not in dispute that Mr. Daniele had shot and killed Mr. Canuto. Whether Mr. Daniele had been guilty of such behaviour as justified a conviction for manslaughter was certainly a matter relevant to the enquiry which the Tribunal had to make but equally relevant was Mr. Daniele's pattern of life over his years in Australia, how he had come to adopt the practice of carrying a loaded pistol, what type of people he associated with, how he came to be involved in a shoot-out with Mr. Canuto, what was the risk of recidivism and what was the risk of harm to others in the community should Mr. Daniele remain in this country. It was relevant to enquire whether Mr. Daniele still had the status of immigrant and whether, if so, he met the standard of persons who in the exercise of discretion are permitted to become assimilated into the Australian community.
It is not necessary that I deal in detail with the reasons for decision of the learned Deputy President. It is sufficient to say that his Honour's reasons appear to concentrate upon the trial to the detriment of a full consideration of these wider circumstances which in my view it was the function of the Tribunal to examine. There is absent from his Honour's reasons any full examination of or statement of what, in the particular case, were the relevant facts to be taken into account for the purpose of the exercise of the power of deportation. Thus, as to the carrying of the pistol the learned Deputy President said, '...indeed no credible reason, has ever been given by the applicant for carrying a loaded Beretta pistol'. As to the shooting, his Honour said :
'I agree the shooting does not sit comfortably with the earlier confrontation, but I am not able to conclude that the solution reposes in the applicant. The death of the deceased seems to be out of all proportion to the trivial disagreement which happened two weeks earlier. But the Crown, having investigated the matter fully, did not lead any evidence of motive for the killing at the applicant's trial and there being no other explanation I should not speculate on this subject. The real explanation will have to remain a mystery, if it is other than that advanced by the applicant.'
But these were matters of too great a significance to be so quickly dismissed. It may be that the learned Deputy President found himself, on the evidence available to him, unable to come to any firm view as to what was the true reason for the carrying of the pistol and for the shooting. But if that were so, it was surely relevant for the learned Deputy President to take into account a somewhat greater risk of future harm than he would have taken into account had he been entirely satisfied as to the circumstances in which the shooting occurred.
In my view, his Honour's reasons did not deal with matters which were both relevant and significant to the decision to be made. As the Administrative Appeals Tribunal is required by s.43(2) of the Administrative Appeals Tribunal Act to give reasons in writing for its decision and in those reasons to state its findings on material questions of fact, the failure of the reasons to deal adequately with material issues must lead to the setting aside of the decision.
Furthermore, in the course of his examination of the trial, the learned Deputy President came to the view that a direction had been given by the learned trial Judge which was deficient according to the law as expounded in Viro v The Queen (1976-78) 141 CLR 88 and that '...if the jury had been properly instructed on the law as it has been defined by the High Court since the trial, the applicant might well have been acquitted by the jury'. I would pause to say that, even were that true, the conclusion would seem to have only limited significance. Mr. Daniele had in fact been convicted of manslaughter and he was a person who had carried a loaded pistol and, in a gun fight, had shot and killed another man. That was conduct which many members of the community would not find acceptable whether it amounted to manslaughter or not.
However, the defect in the summing up to which the learned Deputy President directed attention does not appear to me to be present. The learned Deputy President referred to the statement by Mason J in Viro's case at pages 146-7 that,
'If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.'
The learned Deputy President said, and correctly said,
'It is apparent from the statement (of Mason J) that the fact that the force used by an accused was disproportionate to the danger which he actually faced did not in itself dispose of the defence of self-defence if the accused might have believed that he faced a greater danger than he actually did ... That being so, it was necessary that the jury be directed to consider whether the force used by the applicant may have been proportionate to the danger which he believed he faced.'
In my opinion, the principle which his Honour stated was in fact applied by the learned trial Judge in his summing up. Page 29 of the Appeal Book records the learned trial Judge's statement to the jury,
'You must look at the situation as it appeared to him. You must look at it through his eyes in order to determine what the threat was and the nature of it and the extent of it.'
And at page 54 of the Appeal Book, the learned trial Judge re-directed the jury in the following terms :
'I told you gentlemen that in considering whether he had used no more force than was necessary or than he reasonably supposed to be necessary you look at all the circumstances and you look at the situation as it appeared to him through his eyes.
If you came to the conclusion that he was acting in self-defence and he used no more force than was reasonably necessary or than he reasonably supposed was necessary then he is entitled to go free. That is the law."
In my opinion, the learned trial Judge sufficiently made it clear to the jury in those passages that the jury was required to consider whether the force used in self-defence may have been proportionate to the danger which Mr. Daniele believed he faced. Those passages were not referred to by the learned Deputy President in his reasons.
It follows, in my view, that his Honour took into account an irrelevant consideration, namely, that, if the jury had been properly instructed, the applicant might well have been acquitted or, to adopt another statement of the learned Deputy President, 'That (the summing up) might well have resulted in particular circumstances in a view of the case less favourable to the accused'. That is a further ground for allowing the appeal.
The last matter on which I make comment arises from the learned Deputy President's comments that '...deportation would be an additional detriment or punishment to the respondent...' and '...deportation would be a heavy additional burden in all the circumstances...'.
Mr. Mason submitted that _
'His Honour in the passage to which I have referred equates deportation, which was within his Honour's power, as an additional detriment or punishment which would flow from what his Honour did. In my submission, that is to treat the deportation process as part of the punitive process which the High Court has said it is not.'
In this appeal, it is unnecessary that I discuss the extent to which the deportation of a criminal may be seen as an additional punishment imposed upon him by reason of his crime. In my view, in the above comments his Honour was doing no more than referring to the hardship which Mr. Daniele would suffer if he were deported. His Honour considered that deportation would be to Mr. Daniele a hardship or detriment. In this event, that hardship or detriment was, in my view, a relevant factor to be taken into account in the balancing of all the factors for or against deportation. Once his Honour had formed the view that deportation would be a hardship or detriment, his Honour's decision would have omitted consideration of a material factor if it had omitted to take that factor into account.
For the reasons I have mentioned, I would allow the appeal and would remit the matter to the Administrative Appeals Tribunal for re-hearing.
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