Moffatt v The Queen

[1998] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 1997

B e t w e e n -

GEOFFREY JOHN MOFFATT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 1998, AT 9.57 AM

Copyright in the High Court of Australia

MR W.B. ZICHY-WOINARSKI, QC:   If the Court pleases, I appear with my learned friend, MR P.F. TEHAN, QC, on behalf of the applicant.  (instructed by J.L. Bushby & Associates)

MR J.W. RAPKE:   If the Court pleases, I appear with my learned friend, MR K.E. JUDD, for the respondent.  (instructed by the Solicitor for Public Prosecutions (Victoria))

GAUDRON J:   Yes, Mr Woinarski.

MR ZICHY-WOINARSKI:   If the Court pleases.  Your Honours, the question being raised in this case really arises from the decision of this Court in Kable v The Director of Public Prosecutions for New South Wales, a copy of which your Honours should have. There, a majority of the Court determined that under the Commonwealth Constitution, there being an integrated Australian court system, there was a limit to the functions which a State Parliament could impose upon the judges or, more particularly, the courts of the State judicial system.

Now, in Kable, the Act in question concerned an Act which was specifically designed to result in the preventive detention of Kable himself.  In the instant case - - -

GAUDRON J:   Where there had been no conviction.

MR ZICHY-WOINARSKI:   Where there had been no conviction, that is so, your Honour, and I do not doubt that for a moment.  However, what we do wish to specifically draw the Court’s attention to in Kable v Director of Public Prosecutions (1996) 70 ALJR 814, initially: your Honour Justice McHugh at page 850, in the first column towards the bottom, the paragraph beginning:

The Parliament of New South Wales has the constitutional power to pass legislation providing for the imprisonment of a particular individual.  And that is so whether the machinery for the imprisonment be the legislation itself or the order of a Minister, public servant or tribunal.  Moreover, there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts.

Now, the other passage I just wish to briefly refer the Court to is a passage at the conclusion of Justice Toohey’s judgment on page 837, at the end of the first column.  Your Honours will see a paragraph beginning:

However the Act -

that is the Kable Act -

is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution -

and he then goes on to say:

If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise.

Now, it is our submission that clearly his Honour Justice Toohey was leaving open the question of whether or not general preventative detention legislation would or would not infringe the principle laid down in Kable.

GAUDRON J:   There is a difference, is there not, between general preventative detention legislation and legislation which provides for an indefinite sentence?  What is the difference between this sentence and a life sentence in point of principle?

MR ZICHY-WOINARSKI:   In point of principle, your Honour, the difference here is that the scheme imposes effectively what your Honour describes as an indefinite a life sentence because that is very well what it may become, but the scheme then involves the judiciary in what we say is strictly an executive function, namely, whether or not the prerogative of mercy is to be exercised by the government.  Now, what happens under the scheme here is that at the end of a nominal sentence which the court imposing the indefinite sentence must fix under the legislation - and that is to be found, your Honours, in section 18A(3).  Your Honours will see that:

The court must specify in the order imposing an indefinite sentence a nominal sentence -

and after that nominal sentence has been served, the same court, the County Court of the Supreme Court is brought back into the situation to then review whether or not that person should remain in indefinite custody or should be released.  In other words, the order for indefinite imprisonment should be discharged. 

Now, if that initial review is unsuccessful then the Act provides for further reviews not less than three years apart, and that is to be found, your Honours, in section 18H(1)(b).  You see:

at any time after the expiry of three years from the carrying out of the ‑

first -

review.....and thereafter at intervals of not less than three years.

So that the scheme of the Act is that once a person has been sentenced to an indefinite term of imprisonment and the nominal sentence has been served, the individual is then subject to terms of imprisonment for successive periods of three years and that may go on ad infinitum until that person is dead.

Now, traditionally, we submit that the question of whether or not a sentence, be it an indefinite sentence or be it a term of life imprisonment, the traditional and correct way and the way in which it has always been done for that sentence to be determined is through the executive or the ‑ ‑ ‑

GAUDRON J:   It may have been the traditional way but what is it about ‑ the novelty of it that brings it into conflict with the principle in Kable?

MR ZICHY-WOINARSKI:   Because we say that as in Kable it puts the judiciary too close to the executive.  The reality - - -

GAUDRON J:   It does not, it simply really leaves the matter in the hands of the judiciary rather than in the hands of the executive.

MR ZICHY-WOINARSKI:   Your Honour, may I say the fact that it leaves it in the hands of the judiciary rather than the executive does not meet, with respect, our challenge because the question is whether or not the function that has been given to the court is one which is incompatible with the exercise of Chapter III.

GAUDRON J:   What makes it incompatible?  What do you find in Kable that supports your argument?

MR ZICHY-WOINARSKI:   Your Honour, what Justice McHugh, I think, and Justice Gummow in Kable and some members of the Court in Grollo v Palmer, and more recently in the Hindmarsh Case situation was to adopt what had been said in the United States case of Mistretta, that:

The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship.  That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.

Now, if a court is given or directed by the legislature to impose a particular or a certain term of imprisonment, then the court, subject to the various principles associated with sentencing which may or may not apply to that particular sentence, imposes a sentence which is definitive and final and in accordance with what is properly the exercise of the judicial function.  Whether or not that person is to be released before the termination of that imprisonment is not for the courts to determine.  It is for the executive to determine.  In a democratic society we say - - -

GAUDRON J:   That may have been the traditional case but, for example, the Supreme Court of New South Wales has been involved in the resentencing of offenders.

McHUGH J:   People who have been serving life sentences, they make application; come before the Court of Criminal Appeal or the Supreme Court in New South Wales and they are resentenced.

MR ZICHY-WOINARSKI:   There are two things that we wish to say about that.  In those cases the court is being asked to set a term certain.  That is the first thing.  The second thing is - - -

GAUDRON J:   There is no term certain about a life sentence nor is there about a sentence of death.

MR ZICHY-WOINARSKI:   I agree with that, your Honour, and that is the point - why we say that the correct and only way in which those sentences should be terminated is by the executive.  Once the court has carried out its function of imposing the sentence, then it is only appropriate for the executive to determine whether that sentence should or should - - -

GAUDRON J:   But why do you say that?

MR ZICHY-WOINARSKI:   Your Honours, if this was to be imposed, if this scheme was imposed on a member of a Federal Court created under Chapter III of the Constitution, it is our submission that would be clearly a breach of the division between executive and judicial.

GAUDRON J:   I do not see why.  Federal Courts sentence people.  There is a lot to be said for allowing a degree of flexibility and sophistication of the kind involved in this legislation than the blunt approach involved, for example, in a life sentence, or a mandatory life sentence.

MR ZICHY-WOINARSKI:   I am not seeking to disagree with that, your Honour, but if that is the way in which the executive wishes to be advised as to the appropriate course then it should be done through the administrative tribunals or an administrative process but not involve the judiciary in a situation such as this. 

Your Honour Justice McHugh in Kable, at page 847, in column two, gave an example which your Honour then took the view would be incompatible, where:

A State law which gave the Supreme Court powers to determine issues of a purely governmental nature - for example, how much of the State Budget should be spent on child welfare or what policies should be pursued by a particular government department - would be invalid.  It would have the effect of so closely identifying the Supreme Court  with the government of the State that it would give the appearance that the Supreme Court was part of the executive government of the State.

Now, we say that this is a principle which is equally applicable to legislation that has been enacted by the government.  We have to submit and we do submit that the termination of a sentence, once imposed and finalised by a court, is then for the executive to determine whether or not that should or should not be determined in full.  We see and acknowledge that there are advantages in a scheme such as this for the advice to the executive but it is not appropriate, in our submission, for that advice to come from the judiciary or for those determinations to be done by the judiciary.

McHUGH J:   Would you have any objections to 18A standing alone, namely, a court specified a nominal sentence at the same time as it imposed the indefinite sentence and then leaving the matter to the executive government as to when they release them?

MR ZICHY-WOINARSKI:   Your Honour, I think we have to concede that the courts do have the power to require the courts to impose an indefinite term of imprisonment.

McHUGH J:   All right.  Now, once you accept that, the critical section becomes 18M, does it not, and there the court simply discharges a judicial function.  When the matter comes before it, it is obliged to discharge the indefinite sentence and make an order, whatever it is, about the parole programme unless the court:

is satisfied (to a high degree of probability) that the offender is still a serious danger to the community -

Well, these are just judicial functions, are they not?

MR ZICHY-WOINARSKI:   We say they are not, your Honour, and I cannot repeat myself any more than that and I do not propose to.  But, your Honour, we say that one cannot just take 18A in isolation, one has to look at the whole scheme here.  We, as it has been said in our outline of argument, have concerns about the provisions of section 18B, for example.  There are matters there which are very akin and like the matters that were in the Kable legislation, and I am referring particularly to section 18B(2)(d) and (e) and the final words, that those that relate to:

the risk of serious danger to members of the community.....

and -

(e)  the need to protect members of the community.....

and the court:

may have regard to anything else that it thinks fit.

And, of course, we express concern with respect to the question of a high degree of probability which, as we understand it, is certainly not a standard of proof known to the law.

GAUDRON J:   Yes, but it is a reverse of, really, what was contended for, what was put in Kable.

MR ZICHY-WOINARSKI:   We do not disagree with that, your Honour.

McHUGH J:   It is not a standard known to our law but in the United States in criminal contempt cases they have a sort of intermediate standard that comes somewhere near - - -

MR ZICHY-WOINARSKI:   The only example, with respect, that I could think of prior to this sort of legislation where the courts had control over the continuing period of imprisonment of a person was in something such as contempt legislation where the court held the person there until they purged their contempt or else the court deemed that they had sufficient time but that clearly was in relation to the process of the court itself.

Now, your Honours, I am not going to repeat myself.  Can I just say this:  we say that this is an appropriate vehicle to determine whether legislation such as this does or does not infringe the Kable principle.  The reason why we say that is that there is legislation in South Australia, Western Australia, Queensland, Tasmania and the Northern Territory which introduces similar types of legislation.  There seemed to be two different approaches, although the Northern Territory one is a hybrid one.  There is the legislation such as here and in Queensland where the courts effectively have the review process given to them and there is the situation in Tasmania and Western Australia - South Australia is a little different again - where there is an indefinite sentence for the person to be detained during the Governor’s pleasure, and in the Northern Territory the legislation of this nature requires a review after a period of time and the Supreme Court there is required to give an advice to the Administrator as to what is the appropriate course and the Administrator then determines whether or not.

However, we say that this legislation - we concede it is not the same as the Kable legislation.  It is different.  We say though that it has a number of the features that this Court found problematical in the Kable legislation.  We say that particularly applies after the initial term of an indefinite sentence has been imposed, and we say that this is an appropriate vehicle for the grant of special leave.  If the Court pleases.

GAUDRON J:   Thank you, Mr Woinarski.  We need not trouble you, Mr Rapke.

We are of the view that the proposed appeal does not enjoy sufficient prospects of success to attract the grant of special leave.  Accordingly, the application is refused.

AT 10.15 AM THE MATTER WAS CONCLUDED