Minister for Immigration and Multicultural Affairs v SRT
[1999] FCA 1197
•31 AUGUST 1999
FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197
IMMIGRATION – deportation order – prerequisites of conviction and sentence of imprisonment for not less than one year – whether decision-maker must accept conviction as based on trial judge’s charge to jury – whether decision-maker must accept findings made by trial judge in course of his remarks on sentencing – requirements of not impugning conviction and not impugning sentence.
Migration Act 1958 (Cth) ss 200, 201
Crimes Act 1900 (NSW) subs 18(1)Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 applied
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 applied
BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 citedMINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v “SRT”
N 334 of 1999
BRANSON, LINDGREN & EMMETT JJ
31 AUGUST 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 334 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
AppellantAND:
“SRT”
RespondentJUDGE:
BRANSON, LINDGREN & EMMETT JJ
DATE OF ORDER:
31 AUGUST 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The respondent pay the appellant’s costs of the appeal.
3.The orders made on 29 March 1999 in proceeding NG 1003 of 1998 be set aside and in lieu thereof it be ordered that the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
4.The name or other matters reasonably capable of identifying the respondent not be disclosed without the leave of a Judge of the Court to any person to whom they have not already been disclosed, except further members and staff of the Administrative Appeals Tribunal and further staff and advisers of the Department of the applicant Minister.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 334 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
AppellantAND:
“SRT”
Respondent
JUDGE:
BRANSON, LINDGREN & EMMETT JJ
DATE:
31 AUGUST 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
On 28 March 1994, an indictment was filed against the respondent in the Supreme Court of New South Wales, charging him with having feloniously slain a man (“the Deceased”) in 1991. The respondent pleaded not guilty but on 8 April 1994, a jury returned a verdict of guilty. On 14 April 1994, the respondent was sentenced by Wood J to a minimum term of penal servitude of 3 years and 5 months to commence on 14 April 1994 and to expire on 13 September 1997, and an additional term of penal servitude of 3 years to date from 14 September 1997.
In the light of that conviction and sentence, the appellant (“the Minister”) made an order under section 200 of the Migration Act 1958 (Cth) (“the Act”) on 13 June 1997 that the respondent be deported from Australia. On 11 July 1997, the respondent filed an application for review by the Administrative Appeals Tribunal (“the Tribunal”) of the Minister’s decision to make the deportation order. On 28 August 1998, the Tribunal set aside the decision under review and, in substitution for it, decided not to order the deportation of the respondent.
On 24 September 1998, the Minister appealed from that decision to this Court. A judge of the Court dismissed the appeal on 29 March 1999. From that decision, the Minister brings the present appeal.
BACKGROUND
The respondent was born out of Australia and first came to Australia with his parents on 9 June 1986. He was fourteen years old. At some later time, he commenced using drugs. In May 1991, the respondent went with another man (“the Co-offender”) to the home of the Deceased, ostensibly for the purpose of obtaining drugs.
Within a short time of arriving, the Co-offender came upon the Deceased from behind with a length of rope which he tightened around the Deceased’s neck. While being garrotted in that fashion, the Deceased struggled and managed to place his hands between the rope and this throat. During the struggle that ensued, the respondent, at the request of the Co-offender, fetched a small kitchen knife. The Co-offender struck the Deceased several times in the body with that knife before it bent. He then threw it to the ground.
The struggle continued and the Co-offender asked the respondent to hold the rope while he fetched a larger knife. The Co-offender returned with that knife and inflicted a stab wound upon the Deceased. He then put the knife down. The Crown alleged, but the respondent denied, that the respondent then took up that knife and stabbed the Deceased twice in the region of the chest.
A post mortem examination revealed that there were two causes of the death of the Deceased: strangulation and a stab wound to the heart. It is the question whether or not the respondent stabbed the deceased as alleged by the Crown that has been at the centre of subsequent proceedings involving the respondent.
The respondent and the Co-offender were both arrested and charged with murder. The Co-offender was convicted of murder. The respondent was acquitted of that crime but convicted of manslaughter. On appeal to the Court of Criminal Appeal, that Court quashed the conviction and ordered that the respondent be retried on the charge of manslaughter. It was the conviction on that charge, and Wood J’s sentence upon that conviction, on which the deportation order was based.
The deportation order was made pursuant to s 200 of the Act. The relevant provisions of the Act are as follows:
Deportation of certain non-citizens
200 The Minister may order the deportation of a non-citizen to whom this Division applies.
Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
201 Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) ........ ........ ........ ........ ........ ........ ........ ........ ........ .; or
(ii)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .; and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.
The power to order deportation was clearly available to the Minister.
THE TRIBUNAL’S REASONS FOR DECISION
The Tribunal considered that the factors against deportation outweighed those in favour. It thought that the risk of the respondent’s re-offending in any serious way was low, and it characterised the respondent as “a former drug abuser who has rehabilitated himself”. The Tribunal was of the view that, while the risk of the respondent’s returning to drug abuse or committing another serious crime was small, the risk was to be taken into account as a factor unfavourable to the respondent. The Tribunal also accepted that a crime of manslaughter constituted “by handing a knife to a robber-turned-murderer” would be regarded as so offensive to the Australian community that the community would rebel against having within it a person who had committed such a crime.
The Tribunal considered that the respondent’s contribution to the Australian community had been minimal. It also took account of the strong support for deportation of the respondent exhibited by the relatives of the Deceased, who had attended the hearing before the Tribunal, given evidence and followed the proceedings attentively.
The Tribunal noted that the respondent was married but found that he had chosen not to live with his wife because of her involvement with drugs. The respondent’s wife has a child although the respondent is not the child’s father. The child’s relationship with the respondent has continued despite the breakdown of the marriage. The Tribunal considered that it should treat the best interests of the child as a primary consideration. It concluded that it was in the interests of the child that the respondent not be deported. The Tribunal thought it highly likely that he would become involved with another woman sooner or later, and father children of his own, and that he might then pay much less attention to the child than he does now. Nonetheless, it considered that it was in the best interests of the child that the respondent remain in Australia.
The most significant factors which influenced the Tribunal in its decision whether to set aside the deportation order were the findings that the risk of the respondent’s re-offending was low and that it would be in the best interests of the child for the respondent to remain in Australia.
In its reasons, the Tribunal devoted considerable attention to the findings of fact made by Wood J in the course of his sentencing remarks following the jury’s conviction of the respondent for manslaughter. The Tribunal concluded, however, that it was not bound to accept a finding, then made by his Honour, that “it was [the respondent] who inflicted the stab wound to the heart, which … was a direct cause of death”. The Tribunal considered that it was to inform itself as to the facts of the killing in such manner as it considered appropriate, giving Wood J’s conclusions such weight as it thought fit.
In his comments, Wood J observed that the facts before him suggested that the respondent:
· knowingly assisted the Co-offender by providing him with the smaller knife;
· held the rope while the Co-offender fetched the larger knife; and
· used the larger knife himself to inflict two stab wounds to the Deceased.
Wood J said that two scenarios had been put to the jury. The first was that, as an accomplice, the respondent had provided aid and encouragement to the Co-offender in circumstances where his act was unlawful and dangerous (his Honour referred to Wilsonv The Queen (1992) 174 CLR 313). The second was that the respondent had stabbed the Deceased at a time when, although he may have suspected him to be already dead, he could not have known as an absolute fact that he was dead, and, as a consequence, the respondent’s act was again both unlawful and dangerous. It is possible that the jury accepted either scenario or both. The jury was not asked to bring in a special verdict. However, in the course of the sentencing the respondent, Wood J said:
“I am satisfied, having regard to [the evidence as to the cause of death], and to the admissions of the [respondent], that it was he who inflicted the stab wound to the heart, which was the second last in time and as such his act was a direct cause of death.”
The Tribunal embarked on a consideration of the decision of the Court of Criminal Appeal on the respondent’s successful appeal against his first conviction of manslaughter. In the first trial before Mathews J and a jury, the jury’s verdict had been that the respondent was not guilty of murder but guilty of manslaughter. The Court of Criminal Appeal stated in a joint judgment of all three members:
“It may be inferred from the jury’s verdict, viz that the appellant was not guilty of murder but guilty of manslaughter, that the jury did not accept a suggestion that stab wounds inflicted by the [respondent] (if any) had caused the death of the deceased.”
The Tribunal considered that, in the light of that analysis, it could not properly have been open to the second jury to convict the respondent of manslaughter on the basis that his stabbing of the Deceased was a cause of death. The Tribunal considered, therefore, that after giving the respondent the benefit of his acquittal on the original murder charge, the second jury could have properly concluded that he was guilty of manslaughter only upon the basis that the Co-offender had inflicted the fatal stab wound, that is, that that jury had accepted the first, and not the second, scenario described by Wood J. The Tribunal stated that in the light of the Court of Criminal Appeal’s analysis, it could not see how it could properly have been open to the second jury to convict the respondent of manslaughter on the basis that he had fatally stabbed the Deceased.
THE HEARING BEFORE THE PRIMARY JUDGE
The Reasons for Judgment of the learned judge at first instance commenced as follows:
“This is a particularly difficult case. As I imagine that whatever my judgment is there will be further appeals, and as I have formed a clear view of what the result should be, I do not propose to delay giving a decision. A Full Court and perhaps the High Court are likely to be asked to consider the legal principles in some detail and nothing a first instance judge can add in this connection is likely to be helpful.”
It suffices to say that his Honour said that he did not think that the Tribunal’s view impugned the jury’s verdict or the sentence, and dismissed the Minister’s application for review of the Tribunal’s decision.
GROUNDS OF APPEAL
The Minister’s grounds of appeal are as follows:
“(a)His Honour erred in law in holding that the [Tribunal] did not err in law in finding that the jury must have found the respondent guilty of manslaughter on the first, and less serious, scenario put to it.
(b)His Honour erred in law in holding that the [Tribunal] did not omit to take into account a relevant consideration, namely the second, and more serious, scenario put to it.
(c)His Honour erred in law in holding that the [Tribunal] did not take into account its own view of what the jury must have found at trial and thus did not err in taking into account an irrelevant consideration.
(d)His Honour erred in law in making a finding that it must have been as a result of Wood J’s view that the respondent was not guilty of the more serious scenario that he was able to impose the light or moderated sentence which was imposed, and further erred in making a finding that the sentence imposed would have been wholly inappropriate had the second scenario been found.
(e)His Honour erred in holding that in order to find the [Tribunal] had erred he would have had to find the [Tribunal] had erred as a matter of fact and not as a matter of law.”
REASONING ON THE APPEAL
Reasoning in outlineThe Tribunal’s reasoning and conclusion were consistent only with a view that Wood J had erred in putting the second scenario to the jury as one on which it might convict the respondent of manslaughter. Moreover, the Tribunal must necessarily have thought that his Honour’s finding that the respondent inflicted the fatal stab wound, made in the course of his remarks on sentencing, was not open to him.
The Tribunal appears to have proceeded, when considering the seriousness of the crime of which the respondent was convicted, on the basis that Wood J erred in both respects: in inviting the jury to convict on a scenario that the respondent had stabbed the Deceased when, although he may have suspected the Deceased to be already dead, he could not have known as an absolute fact that he was; and in finding that the respondent had inflicted a stab wound to the heart that was a direct cause of death. The Tribunal proceeded on the basis that the crime had consisted of fetching and handing the smaller knife to “a robber-turned-murderer”.
But both scenarios were in fact put to the jury. As a matter of fact, the jury may have convicted on the basis of either scenario or both. According to the Tribunal, if it convicted on the basis of the second, it erred. Therefore, so the Tribunal reasoned, in order to preserve the integrity of the conviction, it must understand the jury to have convicted on the basis of the first scenario alone, even if there be no factual basis for that understanding and it be inconsistent with Wood J’s express finding.
While we appreciate, as did the primary judge, the difficulty that the Tribunal perceived to arise from the passage from the judgment of the Court of Criminal Appeal set out earlier, we do not think it was entitled to take the course it did, in the absence of a successful appeal against the conviction or sentence.
The Tribunal proceeded on the basis that the jury may in fact have convicted on an erroneous assumption, that is, that it was open to it to find that the respondent had inflicted a fatal wound when, according to the Tribunal, it was not. In this way, the Tribunal impugned the conviction. The Tribunal also proceeded on the basis that Wood J sentenced the respondent, taking into account a consideration that he was not entitled at law to take into account, that is, that the respondent had inflicted a fatal wound with the large knife. In this way the Tribunal impugned the sentence, which was also a precondition to the deportation order. We will elaborate on the background to these conclusions in subsequent paragraphs.
Elaboration on “impugning the conviction”
It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441. The Tribunal clearly thought that for it to proceed on the basis that the second jury convicted the respondent on the basis of the second scenario
· would have impugned the first jury’s acquittal of the respondent of murder, that is, deprived him of the full benefit of that acquittal; and
· would have impugned the second jury’s conviction of the respondent of manslaughter.
The statutory offence of murder has replaced the common law doctrine of murder in New South Wales. Subsection 18(1) of the Crimes Act 1900 (NSW) is as follows:
“18 (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by penal servitude for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.”
The terms of the charge given to the jury by the judge at the first trial, Mathews J, have not been before the Tribunal, the primary judge or this Full Court.
The evidence of police officers before her Honour as before Wood J had included evidence of admissions made by the respondent which, according to their statements, were that:
“I then picked up the knife and stabbed him twice.”
and, in response to a question whether he thought the Deceased was still alive at that stage,
“I think he was dead.”
In her remarks on sentencing, Mathews J referred to the fact that the respondent was “said to have admitted stabbing [the Deceased] twice with the large knife”. She did not refer to the respondent’s state of belief at the time as to whether the victim was already dead. Her Honour referred to an attack by the respondent on the police evidence of his admissions and to his statement to the jury which, relevantly, limited his involvement to the first scenario (fetching the smaller knife from the kitchen for the Co-offender). Her Honour said:
“On the basis of this account of the incident, the jury was directed that manslaughter would be an available verdict if they found that when [the respondent] handed [the Co-offender] the knife he knew that it was likely to be used aggressively, as opposed to defensively, but for the purpose only of inflicting something less than grievous bodily harm.
After a lengthy retirement, the jury acquitted [the respondent] of murder but convicted him of manslaughter. Accordingly, I am obliged to sentence him on the basis that that is the factual scenario accepted by the jury. It must also be accepted by me for the purpose of sentencing.”
Although we cannot be certain in the absence of a copy of her Honour’s charge to the jury, she may have instructed them that if they accepted that the respondent stabbed the victim twice with the large knife with intent to kill, he was guilty of murder, while if they accepted that his role was that of fetching the smaller knife for the Co-offender, he was guilty of manslaughter.
In the course of her sentencing remarks her Honour said that the acquittal of murder and conviction of manslaughter did not sit easily with the evidence, but that she must sentence the respondent “upon the basis of the factual scenario which the jury must have accepted in order to reach its verdict”. This statement foreshadowed that of the Court of Criminal Appeal set out earlier. But the choice allowed to the jury may have been only between stabbing with intent to kill (murder) and the knife-fetching scenario (manslaughter). This would be consistent with her Honour’s sentencing remarks and would explain the passage in the judgment of the Court of Criminal Appeal set out earlier.
Of course, all this is speculation. But it serves to emphasise the danger of following the course which the Tribunal followed here. The simple fact is that the respondent was convicted of manslaughter on the basis of Wood J’s charge to the jury. There must necessarily be a risk that if the jury had been charged differently, and in the manner the Tribunal considered was correct, the respondent would have been acquitted. It follows that the Tribunal approached its task on a basis that necessarily impugned the conviction.
The respondent did not appeal against the second jury’s conviction of him for manslaughter. So long as the conviction stands, it must be accepted that the jury convicted on the basis of the charge that was in fact given to it.
Elaboration on “impugning the sentence”
In December 1992, the then Minister published Australia’s Criminal Deportation Policy (“the Policy”). The Tribunal, in considering an appeal from a decision of the Minister, must take the Policy into account. However, it is not bound by the Policy. The Policy relevantly contains the following:
“9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.
10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.
11. Deportation of a person convicted of crime may be appropriate when a person:
· constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or
· has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or
· has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia.
12. Examples of serious offences which may render non-Australian citizens liable to deportation include:
…
· violence against the person;
…
13. Social ties developed after the liability for deportation arose, especially after the liability has been brought to the notice of the offender, can be discounted according to circumstance (eg marriage or the immigration to Australia of further family members).
…
19. The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
· the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;
· the person’s previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour;
· the risk of further offences;
· the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make;
· the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia;
· the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
· any unreasonable hardship the offender would suffer;
· ties with other countries;
· the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;
· the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.
20. A sensitive issue concerns the liability for deportation of an adult who arrived in Australia as a minor. It is not the Government’s intention that such people should never be deported. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crimes, deportation should be seriously considered.”
The task undertaken by a sentencing judge is different from that undertaken by the Tribunal in reviewing a decision to make a deportation order. Nevertheless, there is an overlap between the considerations to be taken into account in sentencing and in making a decision under s 200 of the Act.
For example, the Minister must take into account the following matters, among others, when making a decision concerning deportation:
· the nature of the offence;
· the risk of further offences;
· the extent of rehabilitation already achieved;
· the person’s previous general record of conduct.
Considerations of these kinds must also be taken into account by a sentencing judge.
Such considerations were in fact taken into account by Wood J. For example, in considering the nature of the offence and the element of rehabilitation, his Honour observed:
“The objective gravity of the offence and the need for retribution and general deterrence necessarily require less weight to be given to [the element of rehabilitation] than would otherwise be the case.”
Wood J also considered the fact that the respondent was a first offender and that his prospects of rehabilitation were generally regarded as favourable.
The Tribunal must, of necessity, consider matters at a time different from that at which a sentencing judge considers them. Circumstances may change. An offender who showed no sign of rehabilitation at the time of sentence may, by the time when deportation is being considered, have shown significant rehabilitation so that the risk of further offences has reduced considerably. Moreover, accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight. For example, while Wood J considered that less weight should be given to rehabilitation in sentencing the respondent, the risk of recidivism was obviously a matter of particular importance for the Tribunal. It was with reference to such considerations that Davies J said in Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 (“Beckner”) at 50-51:
“The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner’s crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether Mr Beckner was such a person as should be allowed to remain in Australia.”
The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner.
Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent’s statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
“To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence.”
It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.
We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing Judge will assume greater importance before the Tribunal, and that the Tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
In so far as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under section 200, the Tribunal erred in law.
THE RESPONDENT’S NOTICE OF CONTENTION
On one view, the two scenarios put to the jury might be regarded as being as equally serious. The respondent contended that even if there was an error of law on the part of the Tribunal, it was immaterial and ultimately did not affect its decision, and accordingly, the Court should not set the Tribunal’s decision aside; cf BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 26 ALD 1 at 7.
Notwithstanding that the Tribunal accepted only the scenario that the respondent handed a knife to a “robber-turned-murderer”, it concluded that the offence so constituted was:
“so offensive to the Australian community that the community would rebel against having within it a person who had committed such a crime.”
The respondent contended that, beyond that observation, the precise circumstances of the offence did not enter into the Tribunal’s reasons. It was said that all of the other factors set out in the Tribunal’s reasons (referred to by us earlier) none of which was challenged, overwhelmingly favoured the setting aside of the deportation order. The respondent submitted that even if the Tribunal had accepted the finding made by Wood J, the result would not have been different, the Tribunal would still have regarded the respondent’s offence in the manner characterised by it, and any error of law should not lead to the decision being set aside.
A difficulty with such a contention is that it appears to have been of significance to the Tribunal to draw the distinction that it did. The Tribunal went out of its way to reach and state its conclusion that it was the first scenario, rather than the second, on which the jury must be taken to have convicted. If the distinction was of no significance to the Tribunal, it is difficult to see why it undertook the detailed analysis that it did.
It is not possible to say with any certainty that it would have made no difference to its decision if the Tribunal had accepted, as Wood J had found, that it was the knife wound inflicted by the respondent which caused the death of the Deceased. The matter should be remitted to the Tribunal for reconsideration.
CONCLUSION
It follows that the Minister’s appeal should be allowed, the decision of the Tribunal should be set aside, and the matter should be remitted to the Tribunal for decision according to law.
It is common ground that the final position adopted by the Minister on the hearing of the appeal was different from that adopted by him before the primary judge. Accordingly, while the respondent should be ordered to pay the Minister’s costs of the appeal, the Minister should not have his costs of the hearing before the primary judge.
OBSERVATIONS MADE BY PRIMARY JUDGE
The primary judge delivered his reasons for judgment ex tempore and in the presence of the family of the Deceased. It is reasonable to infer that his Honour wished to express the concern that all members of the community must feel, in the light of Wood J’s finding, for the members of the family. In the course of giving his reasons, his Honour expressed his own view that the original decision to deport the respondent was correct.
While his Honour clearly said that the decision whether to deport is not for this Court and that the only role of the Court is to determine whether there was a relevant error of law in the Tribunal’s decision, it would have been preferable for his Honour not to have made those observations. Observations such as those, made by a judge of the eminence of the primary judge, could have a tendency to influence the decision of a member of the Tribunal called upon to reconsider the decision in question. It should be made abundantly clear that in reconsidering the decision pursuant to the orders now made by this Full Court, the Tribunal should have no regard to the observations made by his Honour concerning the merits of the original decision.
CONFIDENTIALITY ORDER
An order directed to non-disclosure of the identity of the respondent was made by the Tribunal. The respondent asked us to make an order under s 50 of the Federal Court of Australia Act 1976 (Cth). The Minister did not object to the making of the order sought. For the reasons then contemplated, we will make that order.
I certify that the preceding fifty eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 31 August 1999
Counsel for the Appellant: Ms V A Hartstein and Ms S M McNaughton Solicitors for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr R T Beech-Jones Solicitors for the Respondent: Anthony’s Lawyers Date of Hearing: 10 August 1999 Date of Judgment: 31 August 1999
521
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