Monis v The Queen & Anor; Droudis v The Queen

[2012] HCATrans 161

[2012] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S2 of 2012

B e t w e e n -

MAN HARON MONIS

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry
  Sydney   No S4 of 2012

B e t w e e n -

AMIRAH DROUDIS

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Applications for special leave to appeal

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2012, AT 10.02 AM

Copyright in the High Court of Australia

__________________

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant Monis with my learned friend, MS G.R. RUBAGOTTI.  (instructed by Aston Legal)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR A.K. FLECKNOE-BROWN, for the applicant Droudis.  (instructed by CBD Criminal Defence Lawyers)

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MR M.G. McHUGH, for the first respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS S.E. PRITCHARD, for the second respondent in both matters.  (instructed by Crown Solicitor (NSW))

GUMMOW J:   Is there any agreement between the counsel and your side of the Bar table, Mr Solicitor, as to who will be going first for the respondent?

MR SEXTON:   Yes.  My learned friend, Mr Agius, will be going first, your Honour.

GUMMOW J:   Yes, Mr Agius, we will hear from you first.

MR AGIUS:   Your Honours, in our respectful submission, this is not an appropriate matter for a grant of special leave because this case really is an example of no more than the application of settled law and in that way, all we have before us is an example of the ‑ ‑ ‑

GUMMOW J:   Is there any disharmony between the reasons of the Chief Justice and the other members of the Court of Appeal, Justice Allsop?

MR AGIUS:   No material disharmony on the question of principle, your Honour.  There was no disagreement as to the way in which the second test laid down in Lange, as modified in Coleman v Power, ought to be applied.  There was a question of how it is that the legitimate end might be defined, but ultimately there was an agreement in relation to that.  There was no disagreement on the issue as to whether or not this was an example of reasonably appropriate and adapted legislation.  This was simply a question of construction and the meaning of the word “offensive” in context and the application of the second limb of the Lange test and, in our respectful submission, in that regard there was no material dispute. 

One can see that it was a question of construction and that the appropriate principles and convention of principles of construction were applied.  If one goes to the Chief Justice’s judgment commencing at application book 48, paragraphs 42 to 45, his Honour worked through the principles of construction and looked at the section itself and the meaning of the word “offensive” in that section.  At the bottom of page 47 of the application book, his Honour set out four points which he regarded as important on the question of construction and the third of them, we submit, was the most significant point and that is that the word “offensive” was used in conjunction with the words “menacing” and “harassing”.

The applicants contended that, really, “offensive” could mean no more than hurt feelings and that was completely killed off by this judgment.  There is no issue that in its context – and, after all, that is what we get from Coleman v Power and Lange, we need to look at the context.  The word “offensive” means much more when seen in its context with “menacing” and “harassing” than simply hurt feelings.  That led to the Chief Justice determining that it meant:

calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person ‑ ‑ ‑

CRENNAN J:   You are on paragraph 44 now?

MR AGIUS:   Yes.  His Honour first introduces that phrase at 44 and then takes it up when dealing with the question of whether or not the law was reasonably appropriate and adapted to serve a legitimate end at paragraph 59 of his judgment.

KIEFEL J:   A legitimate end is an end within power in context, is it not?

MR AGIUS:   I am sorry, your Honour?

KIEFEL J:   A legitimate end in context is simply a purpose within power?

MR AGIUS:   Yes, but as this Court made clear in Coleman v Power, it was important to identify a legitimate end, and the Court of Criminal Appeal specifically dealt with that issue.  The judgments of both the Chief Justice and the President identify a legitimate end.

KIEFEL J:   Is that identification in paragraph 64?

MR AGIUS:   The legitimate end we see as commencing at paragraph 59.

KIEFEL J:   So do you say paragraph 64 is the reasoning with respect to whether it was reasonably appropriate and adapted to that end?

MR AGIUS:   Yes.  That is the conclusion.  The analysis appears from 59 up to 64.  The question of whether it was reasonably appropriate and adapted, the answer to that question was concluded in the same way by all three judges and that is that in contradistinction to Coleman v Power, here we have a test which was that of reasonable persons in all of the circumstances, and that qualification was absent in Coleman v Power and their Honours here examined that.  It is not unlike the test which was accepted in Wotton by this Court which was reasonably considered as necessary.

There are two features of this piece of legislation which are important.  One is that it only indirectly touches the freedom and the second is that it does contain within the section a test for the exception.  In Wotton, those two features were regarded by this Court as important in determining whether or not the provision was reasonably appropriate and adapted and we say that those two features are also present here.  One is that the test itself uses the words “reasonable persons in all of the circumstances” and the second is the feature of the legislation itself which only indirectly and, we say, lightly touches the freedom once the word “offensive” is properly understood in its context.

Our submission is that it is not for this Court, and we say this with great respect, to superintend the application of the tests in Lange every time they are applied and what we had here was a classic case where a superior court has applied the two tests, about which it found no issue and no difficulty and about which there was no confusion.  It may have come to a conclusion that other people would disagree with, but, in our respectful submission, the tests that were applied were the appropriate tests.  The considerations were the appropriate considerations.  There was a search for a legitimate end and there was a consideration as to whether or not the section was reasonably appropriate and adapted, recognising that Parliament can limit the freedom, as this Court has acknowledged.

KIEFEL J:   What do you say to the applicant in Monis’ argument at paragraph 29 that the interpretation of the requirements of the second limb in Lange by various Justices in Coleman v Power is not entirely clear?

MR AGIUS:   Your Honour, we say, with respect, that that misunderstands what happened in Coleman v Power.  There was no dispute in Coleman v Power as to what the second test was or as to how it would be applied.  The dispute in Coleman v Power was how would one interpret the effect of the section in the Vagrants Act and our submission is that this is an example of the application of a settled test and that of course one can get differences of opinion amongst even senior judges of appeal on the question of what the legitimate end might be, as revealed by the legislation, or the extent to which the provision is reasonably appropriate or adapted. 

That was where the issue arose in Coleman v Power and different judges approached that issue differently, but the difference had to do with the interpretation of the provision.  None of the judges disputed what the test meant, the search that was required if the test was to be properly applied and the way in which that approach should be undertaken.  They did come to different conclusions in that regard, but that was only in relation to the application of settled principle, and we say all we have had here is the application of settled principle.

GUMMOW J:   What do you say as to the submissions in the Droudis Case at page 131, paragraphs 34, 35 and 36?  Did the Court of Appeal attend to the history of 471.12 in the postal legislation?  It is a very long history, is it not?

MR AGIUS:   Yes.  Your Honour, those submissions misunderstand the legislative history, with respect.

GUMMOW J:   They may, but did the Court of Appeal attend to it?  That is what I asked you.

MR AGIUS:   They did attend to it.  The Chief Justice referred to it, albeit obliquely but significantly, when his Honour noted, when interpreting the word “offensive”, that the word “offensive” was used in conjunction with “menacing” and “harassing”.  That is a feature of the legislative history of the provision, which was significant because after the decision in Lange this section was amended and the effect of the amendment was to group together in the one section the words “menacing”, “harassing” and “offensive” and to qualify those words by the words “reasonable persons in all of the circumstances”.  That was a significant change, in our respectful submission, because it beefed up or added gravitas to the meaning of the word “offensive”. 

It also increased the penalty to one of two years imprisonment from one of six months and those two changes had the effect of requiring a close look at what the word “offensive” must mean.  Even in that context “offensive” must mean more than injured feelings.  It must mean more than what was said to be the effect of the words in Coleman v Power, and that was very much at the forefront of the minds of both the Chief Justice and the President when they agreed upon the meaning of “offensive”.  Indeed, we would say that is the principal reason why they came to conclude that “offensive” meant much more than simply hurt feelings, but that it meant likely to arouse significant anger, significant resentment, hatred in the mind of a reasonable person. 

Their Honours also took into account what had been the practice in this country even before the elucidation of the implied freedom in cases such as Ball v McIntyre where a fairly robust approach was taken to the use of the word “offensive” in the context of political statements.  That was their starting point and they moved on from that because of the context of the word “offensive” in this case as it is with “menacing” and “harassing”.  We have, and I can hand this up if it would be of any assistance, a summary of the legislative history which was also provided to the Court of Criminal Appeal in the course of argument. 

I think I said six months to two years.  It actually went from one year to two years.  If one goes right back to Federation in 1901 there was an offence of sending by post an envelope which was, for various reasons, indecent, obscene, blasphemous, libellous or grossly offensive.  That was in 1901.  In 1975, the word “grossly” was removed when the offence became

one by way of regulation, the operative words being “indecent, obscene or offensive”, but in 2002 there was a significant amendment. 

Your Honours will see on page 2 of the summary, in 1989 section 85 of the Crimes Act separated “menacing” and “harassing” from “offensive” and the qualification, as would be regarded by reasonable persons as being in all the circumstances, was restricted to “offensive”.  In 2002 the significant amendment was to bring together “menacing”, “harassing” and “offensive” and to apply the qualification to all three and to increase the penalty by 12 months.  That, in our respectful submission, was recognised by the court.  We say it was an appropriate recognition.  That was the argument we put to the Court of Criminal Appeal.  They had this legislative history. 

What we have from the Court of Criminal Appeal, in our respectful submission, is very much a workable test and it is a workable test which respects the conventional principles of statutory construction, and that is the provision has been read subject to the Constitution. That workable test is one which can readily be put to and understood by a jury and the qualification of all the circumstances is a very important qualification and a very significant indication of a reasonable appropriate and adapted provision. It allows the jury to understand and indeed, in our respectful submission, to be directed to the context of these foul letters. These letters were written to the parents and wives of deceased soldiers at about the time of their funeral.

The applicants are not being prosecuted for the copies of the letters that were sent to parliamentarians no doubt as an exercise of political communication.  “All the circumstances” includes all the circumstances that were not present.  In other words, these letters were not being sent to politicians alone.  It is the letters that were sent to the families that are being prosecuted.  The section makes allowance for that, and that is an example of how the section is reasonably appropriate and adapted. 

By introducing that concept of “all the circumstances” and by making it obvious that that is a matter to be considered, Parliament in 2004 recognised the second limb of the Lange test and provided a provision which was reasonably appropriate and adapted and, in our respectful submission, the judgment recognises that.  Those qualifications were not present in Coleman and, in our respectful submission, that was an akin qualification to the one that this Court recognised as being of moment in Wotton at paragraph 32.  They are our submissions, your Honours.

GUMMOW J:   Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, I think my learned friend has covered the ground.  If I can just say one thing shortly, which is that it does not seem to us that there can be a novel or significant question of law for special leave purposes in this case because it involves a straightforward application of the second limb of the Lange principle and that that limb, perhaps unlike the first limb, is reasonably settled, and that was evident despite the differences on questions of construction in Coleman v Power.  So what this case would really come down to in those circumstances is, in a sense, a merits review of the question of whether the legislation here was reasonably appropriate and adapted to serve a legitimate end.  That does not seem to us to be a special leave question.  If the Court pleases.

GUMMOW J:   We do not need to hear from you, Mr Reynolds or Mr Kirk.  There will be a grant of special leave in these matters.  I think you will have to give 78B notices again, will you not?  Without interventions in response of 78B notices, it would be a one‑day case, would it not, I would think?

MR REYNOLDS:   Without interventions, yes.

GUMMOW J:   Yes.  So I think we had better say one day plus.

MR REYNOLDS:   Your Honour, I am sorry to do this, may I raise one personal matter.  I am away for the whole of July and I would ask for an extension for our submissions to 14 August in those circumstances otherwise I will simply have to adopt Mr Bennett’s submissions.

GUMMOW J:   Yes, you have that extension.

MR REYNOLDS:   Thank you, your Honour.

GUMMOW J:   You had better march in step with Mr Kirk to some degree too, I think.  He does not need that extension, does he?

MR AGIUS:   Your Honours, might we raise one matter in that regard.  The draft notice of appeal in respect of the applicant Monis seeks an order quashing the indictment.  One count of the indictment was not subject of decision by the Court of Criminal Appeal.

GUMMOW J:   It is standing, no matter what?

MR AGIUS:   Yes.  That is the harassment count, which only was laid against ‑ ‑ ‑

GUMMOW J:   Where does this precisely appear in the draft?

MR AGIUS:   Page 79 is the draft and page 80, line 20 is the order quashing the indictment.

GUMMOW J:   Yes.  You had better amend that, Mr Kirk.

MR AGIUS:   We may seek to put on a notice of contention raising the first limb of Lange for consideration.

GUMMOW J:   Yes.  Well, that makes it more than one day, I think.

MR REYNOLDS:   My learned friends said they were not raising that in their submissions.

MR AGIUS:   Yes, that is right, but now that you have a grant of leave, we are entitled to consider our position, that grant of leave having been given.

GUMMOW J:   Do not get over agitated.  Very well.  That will expand the time for the hearing, though, to at least one day plus, I would say.  With your submissions, Mr Agius, it would be helpful if you attach the history of the postal office offences you have handed up this morning.

MR AGIUS:   Yes, your Honour.

GUMMOW J:   Very well.  Is there anything else?  These draft directions, which the Registrar will give you, are adjusted to take into account Mr Reynolds’ position.  We will adjourn to reconstitute.

AT 10.25 AM THE MATTER WAS CONCLUDED