Pantazis v The Queen and Anor; Issa v The Queen and Anor; Elias v The Queen and Anor

[2013] HCATrans 51

[2013] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M80 of 2012

B e t w e e n -

BASSILLIOS PANTAZIS

Applicant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA

Second Respondent

Office of the Registry
  Melbourne   No M81 of 2012

B e t w e e n -

CHAFIC ISSA

Applicant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA

Second Respondent

Office of the Registry
  Melbourne   No M82 of 2012

B e t w e e n -

GEORGE ELIAS

Applicant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA

Second Respondent

Applications for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH 2013, AT 11.17 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER, SC:   May it please the Court, I appear with my learned friend, MR T.E. WRAIGHT, on behalf of the applicant, Mr Pantazis.  (instructed by Lethbridges Barristers & Solicitors)

MR L.C. CARTER:   If the Court pleases, I appear with my learned friend, MR R.E. EDNEY, on behalf of the applicant, Mr Issa.  (instructed by C. Marshall & Associates Barristers & Solicitors)

MR P.F. TEHAN, QC:   May it please the Court, I appear with my learned friend, MR D.D. GURVICH, on behalf of the applicant, Mr Elias.  (instructed by Emma Turnbull Criminal Law)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, in respect of the first respondent in each appeal.  (instructed by Director of Public Prosecutions (Vic))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR P.D. HERZFELD, for the Attorney‑General and the second respondent in each application.  (instructed by Victorian Government Solicitor)

FRENCH CJ:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, the first special leave question is this.   In sentencing a person for a State offence is a court required to have regard to a lesser maximum penalty fixed for a like offence that could have been charged under Commonwealth law, or is the principle in Liang & Li to be confined to less punitive offences, contrary to the State law in the jurisdiction in which the judicial power is being exercised?

FRENCH CJ:   Did not Liang & Li involve a threshold characterisation of the choice of charges as an injustice or as inappropriate?

MR CROUCHER:   Well, the words that Justice Winneke, the President, used in the end were “as appropriate” or “more appropriate”; they were the ‑ ‑ ‑

FRENCH CJ:   Is that a threshold question you have to get past to get into the principle issue?

MR CROUCHER:   Well, the principle seems to apply, at least on the first clause of that sentence, as whether it is “as appropriate”, so yes, it does seem to be a relevant consideration, but we say it plainly was in this case and there are several reasons why the court was wrong; firstly, to say that the principle should be confined and, secondly, as to why it should not apply in this case.

Firstly, as to the reasons why the court was wrong to say that the principle should be confined to intrastate comparisons as opposed to comparing with Commonwealth matters was this.  The rationale for the principle is sound.  In Liang & Li ‑ ‑ ‑

FRENCH CJ:   This is what I would like to understand.  What is the rationale for the principle as it applies to intrastate matters?

MR CROUCHER:   For intrastate matters, it is ‑ ‑ ‑

FRENCH CJ:   Is it a finding of some sort of impropriety on the part of the prosecution and a ‑ ‑ ‑

MR CROUCHER:   Well, this is the problem with the Court of Appeal’s reasons, it is respectfully submitted, because the court happily says that it applies intrastate and says, well, as long as it is as appropriate or more appropriate then the court cannot be circumscribed as to the way in which it sentencing given that there is a lesser charge that might have been imposed or fixed.  But the true thrust of the principle, at least as Justice Winneke put it in Liang & Li, was this ‑ and this is at pages 43 to 44 of his Honour’s judgment – his Honour said it is:

a relevant factor in the sentencing process to consider what the relevant legislative body (namely the Commonwealth) regarded as the appropriate “sentencing tariff” for an offence perpetrated against its interests or the interests of bodies for whom it had power to legislate.

That is what his Honour said.  As well, the point that we have been discussing already about whether it is as or more appropriate they could have been charged.  His Honour described the principle ‑ Justice Winneke again in the later case of Vellinos – as a “sentencing principle of fairness”.  But the Court of Appeal considered these remarks ‑ ‑ ‑

KIEFEL J:   They are two quite different approaches, are they not?

MR CROUCHER:   Well, the idea of fairness comes out of what the Commonwealth would have to say about a matter were it before it, if you like that is the way it works, and also to promote consistency in sentencing.  The Court of Appeal considered these remarks, but said that they could not explain the decision in Young, which was the much earlier decision from 1982, and the reasons of Justices Starke and Crockett.

The problem is that Young’s Case took account of a lower penalty for a Commonwealth offence solely because it was an identical but less punitive offence to the State charge of which Young had been convicted and not because the Commonwealth offence could have been charged and, in fact, in Young’s Case the Commonwealth offence could not have been charged.  So whether or not Young was correctly decided is not to the point or explained.  The fact is that in this case the course of justice that the applicant attempted to pervert was in relation to the judicial power of the Commonwealth, which behaviour fitted precisely the offence under section 43 of the Crimes Act (Cth).

You will remember, your Honours, the point that gave rise to all this was the sentence imposed upon Mr Mokbel which was for a Commonwealth offence, and subsequent to that the offending engaged in by the applicant was committed.  Also this involved – and added another federal character to it – this involved across States and internationally.  So in those circumstances, the Commonwealth offence in section 43 was even more appropriate than the offence charged.

KIEFEL J:   What do you say to what could be a threshold question on one view about whether section 43 would be engaged?

MR CROUCHER:   Yes, I will jump ahead to that now but I want to come back to that, your Honour, but I will answer it right now.

KIEFEL J:   Do not let me take you out of your order if ‑ ‑ ‑

MR CROUCHER:   Well, it would be out of the order, your Honour.

KIEFEL J:   Well, stay with your order.

MR CROUCHER:   All right.  So the next point then, where their Honours went wrong, is their Honours said that the section 5(2)(g) of the State Sentencing Act was not apt to compel a State sentencing court to have regard to penalties fixed for like Commonwealth offences in appropriate circumstances, but section 5(2)(g) provides that:

In sentencing an offender a court must have regard to –

. . . 

(g)the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

Well, plainly, it is a relevant circumstance that when you have got a federal related offence being charged under a State Act or a common law and circumscribed by a State penalty, what might have happened had it been dealt with under Commonwealth legislation?

FRENCH CJ:   What is the logic that makes it relevant?  You say it is plain.  I do not quite ‑ ‑ ‑

MR CROUCHER:   Well, let us test it this way, your Honour.  Both the State and the Commonwealth Directors have powers to lay Commonwealth or State charges interchangeably.

FRENCH CJ:   Let us assume we are not talking about abuse of process.

MR CROUCHER:   No.  Our learned friends for the Crown say it is only about abuse of process, whereas Justice Winneke makes it plain, no, no, it is a matter for the Crown what charges they lay.

FRENCH CJ:   So I am looking for a logical pathway that does not depend – establishing relevance – that does not depend upon abuse of process?

MR CROUCHER:   That is right, and the question simply is that – if you have, for example, two people ‑ given that both Directors can charge either State or Commonwealth offences – if you had two people who committed the same offence, they were co‑offenders even, you could have one charged with a State offence, one charged with a Commonwealth offence, surely it would be relevant to have regard to the fact that one of them was exposed to a five year penalty ‑ ‑ ‑

FRENCH CJ:   Well, that might be a debate about parity, but that is a different principle.

MR CROUCHER:   It is the same point that would apply even if it is not a co‑accused.  If it is someone else in like circumstances is charged with a Commonwealth offence because simply the Director chose to do so compared with this particular applicant who is exposed to the higher penalty, yet it is still a federal related crime, so that is the link.

In our submission, thirdly, the Court of Appeal’s reasoning is internally inconsistent.  On the one hand, as we have already suggested, the court accepted that the principle in Liang & Li is applicable to comparisons between the offence charged and less punitive offences within the same States, so intrastate comparisons; on the other, the court said it would be wrong to allow comparisons with Commonwealth offences, and it seems for no other reason than, well, the State legislature has spoken on what the maximum penalty should be in its own jurisdiction.

But as we have said, section 5(2)(g) picks up a relevant circumstance and, as Justice Winneke explained in Liang & Li itself, where the principle applies, as it does here, it is relevant and proper for a judge to consider what the Commonwealth legislature regarded as the appropriate sentencing tariff when sentencing for the State offence.  Fourthly, your Honours, the Court of Appeal in this case overruled Liang & Li, a closely reasoned authority of long and good standing, in preference to a one‑paragraph remark by the President of the New South Wales Court of Criminal Appeal in El Helou, a case in which there was no reference to Liang & Li or to any of the other cases which had applied or referred to Liang & Li in between 15 or so years since it was decided.

In one of those cases, Gordon, which is from the Queensland Court of Appeal, Justice Keane in his earlier judicial life referred to Liang & Li without any disapproval and, in fact, his Honour – it is clear that had the principle actually applied, on the facts in that case it did not apply because of factual matters – his Honour would have extended the principle to apply to consideration of a less punitive State offence when charged with a Commonwealth offence.

Further, their Honours considered in the Court of Appeal, on the assumption that the principle does exist and it is not to be cut down, their Honours then said, well, no, it would not apply anyway, but their Honours’ reasons, with respect, were wrong in that regard.  First, in considering that issue their Honours held that because the applicant had pleaded guilty to the offence in count 1 as part of a negotiated presentment, pursuant to which the Crown abandoned a drug trafficking charge, it should exercise “considerable restraint before upsetting a negotiated plea” and “no unfairness can ordinarily be seen to arise in such circumstances”.

With respect, that is an entirely irrelevant consideration.  The applicant maintained his innocence of the drug trafficking charge.  The Crown chose not to press it.  Counsel pressed for an alternative to charge one, namely, the section 325 of the State Act charge, but the Crown would not accept it.  So a plea of guilty to the attempt to pervert the course of justice charge cannot mean, and did not mean, that the question of law at issue in the case fell away somehow.  There is no upsetting of a plea bargain by applying the law.  All the applicant was saying and says now is I want to be sentenced according to law.

Similarly, when considering whether the Commonwealth offence in section 43 was as appropriate as a State charge, the court erroneously asked itself whether the maximum penalty of five years would be adequate to do justice to the conduct, but once it has determined that the offence was virtually identical, the section 43 offence was virtually identical, and that it could have been charged because it concerned an attempt to pervert the course of justice in relation to the judicial power of the Commonwealth as here, it was then simply necessary to have regard to the fact that the Commonwealth had fixed the maximum penalty at five years and not whether the maximum itself was inappropriate.  It is wrong and subverts the instinctive synthesis to refrain from considering a less punitive offence just because the maximum penalty is thought to be too low.

Under this branch of the argument, the penalty for the Commonwealth offence is not a ceiling, it is just something to which regard must be had.  Indeed, in Young’s Case it was made clear, albeit at a slightly different application of the principle, that you could exceed that maximum penalty imposed in the other jurisdiction.  It is a guide, it is something to which regard should be had, but the court said, no, you cannot even have regard to it; that, with respect, was wrong.  Now, to come to Justice Kiefel’s point ‑ ‑ ‑

KIEFEL J:   I do not think it is my point; I am just interested in what someone else has said about it.

MR CROUCHER:   Well, question.  It has arisen, indeed, out of what the Crown has said, and a couple of things that the Crown has said have caused us to make a submission, a further submission, that this connection is arguably bad in law for these reasons.  Firstly, in seeking to defeat the applicant’s argument that the principle in Liang & Li applied in this case, the Crown argues that because the judicial power of the Commonwealth was spent upon the imposition of the sentence upon Mr Mokbel, section 43 could not have been charged in the event.

Well, we say our first argument is that should be rejected, that submission, for a couple of reasons.  First, as in Murphy’s Case, at page 611 of that judgment where their Honours make clear that the words “in relation to the judicial power of the Commonwealth” in section 43:

simply connote the existence of a connexion or association between the course of justice which is attempted to be perverted and the judicial power of the Commonwealth –

So in Murphy that expression was considered sufficiently broad to extend to attempt to interfere with committal proceedings for a Commonwealth offence, whereas the argument was, no, it should be related to actual judicial proceedings as opposed to administrative proceedings which, of course, criminal proceedings are.

So here it is arguable enough that the judicial power of the Commonwealth which culminated in Mr Mokbel’s sentence would be perverted if the sentence were not allowed to be carried out, which is what really the Crown was saying happened here.  However, the alternative is that if the Crown’s argument is correct then not only would there be no offence under section 43 of the Commonwealth Act, there would be no offence at common law either because the offence at common law must include a course of justice that relates to judicial power of some description; that is the essence of attempting to pervert the course of justice.  So if the judicial power was spent, the Commonwealth judicial power was spent, then if it is State judicial power was also spent ‑ ‑ ‑

KIEFEL J:   But the State offence is attempting to pervert the course of public justice which involves notions of Executive power, the carrying to effect of a sentence.

MR CROUCHER:   Well, if one goes to Rogerson now you can see different views about what all this means, and can I just take you to two parts of Rogerson, your Honours?  There are conflicting remarks about it, it seems.  On the one hand, in the judgment of Justices Brennan and Toohey at page 280, their Honours speak of, amongst other things, attempting to pervert the course of justice, extending to “impeding the free exercise of its” – that is the court’s - “jurisdiction and powers including the powers of executing its decisions”, which might be thought to extend to the case at hand.  On the other hand, Justice McHugh at page ‑ ‑ ‑

KIEFEL J:   That is referring to the court, for instance, in relation to carrying to effect its own contempt provisions.

MR CROUCHER:   Well, that is what I am saying would be – you could extend that last clause of that passage to extend to this situation here, that insofar as there was ‑ ‑ ‑

KIEFEL J:   But the court does not carry into effect sentences of imprisonment.  That is the distinction here, is it not?

MR CROUCHER:   Well, if that is right then it makes the Crown’s point that they seek to argue in section 43 applicable to a case concerning attempting to pervert the course of justice and it means there is no offence on that view of the world.  But Justice McHugh was even more, if you like, definite about this.  At 304 his Honour said, at the top of the page:

In both criminal and civil proceedings, the course of justice ends when the rights and liabilities of the parties have been finally determined and declared after “an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined” ‑

which might be thought to drop the curtain after sentence is imposed, so that whatever might happen afterwards it cannot amount to attempting to pervert the course of justice.  It may be in contempt if someone did something – you know, wrote to a judge after a sentence in an offensive way, that might be contempt of court, but it would not necessarily be attempting to pervert the course of justice on this reasoning.

We found no case – prompted by our learned friends – we have found no case in the authorities that says – or that has an example of attempting to pervert the course of justice after a sentence has been imposed.  All the cases and the ones that have made it to this Court, like Murphy, like Rogerson itself, have been at the early stages – Rogerson about when police investigation may or may not be on foot; Murphy’s Case, of course, about a committal proceeding so looking at it from the other end.  It was considered by some to be a stretch to do that.

KIEFEL J:   In any event, I suppose you would say that the question that you are now agitating is not so clear‑cut as to prevent the Court looking at a principle which appears to be applied, not only in Victoria but in other States ‑ ‑ ‑

MR CROUCHER:   Precisely.

KIEFEL J:   ‑ ‑ ‑ and about which the Court of Appeal has raised questions, at the very least?

MR CROUCHER:   Yes. Now, further to that, your Honours, on the conviction point – and then this again comes out of the Crown’s argument – the Crown argue that common law crime ceased to be part of the law of the Commonwealth on 1 January 1997 when section 1.1 of the Criminal Code (Cth) came into existence, or into force. Section 1.1 reads:

The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.

Of course, there is only one common law of Australia, as this Court said more than once, but if the common law offence was abolished in relation to Commonwealth law by dint of section 1.1 then it could not be the case that the common law offence caught behaviour charged here because that behaviour related to judicial power of the Commonwealth.

Thirdly, under this branch of the argument we say, in any event, that section 43 when read by itself or with its surrounding provisions abolished the common law offence of attempting to pervert the course of justice in relation to judicial power of the Commonwealth.  Section 43 itself is so broad, the surrounding sections are so comprehensive, they deal with virtually every example you could think that would amount to attempting to pervert the course of justice, like interfering with witnesses and so on, that there cannot be any room left for the common law offence to exist in relation to the judicial power of the Commonwealth, which is what this offence concerned.  So the Commonwealth Parliament must have intended, we say, to oust the common law offence, at least in relation to judicial power of the Commonwealth.

KIEFEL J:   Could I just come back to the question of whether or not there is an inconsistency in the approaches of other intermediate appeal courts?  You have referred to Gordon in the Queensland Court of Appeal; Justice Keane did not really endorse the principle there, did he?  He made reference to it, but it did not matter for the outcome there.

MR CROUCHER:   Well, it did not matter in the case so it is not the ratio because the Director’s appeal was dismissed, or application for leave to appeal out of time was refused, for discretionary reasons.  His Honour was not doubting the application or the validity of the principle if – because the judge below in Gordon’s Case had sought to apply it.  The Crown’s complaint was the judge had sought wrongly to apply it, not because the principle was wrong, but because it did not apply to the facts of that case.

Justice Keane accepted that second part of the argument, namely, that it – for the purposes of argument his Honour said, it may be accepted that the trial judge was wrong to apply that principle in this case, but he did not say the principle was wrong.

KIEFEL J:   He did not say it was right either.

MR CROUCHER:   His Honour was implicitly endorsing it, at the very least and, in fact, was prepared to have it applied the other way around.

KIEFEL J:   Is there any other example of the principle having been approved in some sense?

MR CROUCHER:   Well, in Justice Winneke’s judgment, the President’s judgment, in Liang & Li itself his Honour refers to Scott v Cameron, an earlier case, and also to Wright.

KIEFEL J:   Yes, but I mean by other intermediate appellate courts since Liang & Li.

MR CROUCHER:   Yes, indeed.  At 229 of the application book our learned friends have listed in paragraph 3.4 the other cases – other States that have applied or referred to the principle, so South Australia which is Scott v Cameron back in 1980, Western Australia which is Asfoor ‑ ‑ ‑

KIEFEL J:   Yes, I had forgotten those.

MR CROUCHER:   ‑ ‑ ‑ and then, of course, Gordon’s Case.

FRENCH CJ:   Scott v Cameron and Van Tongeren, they were intrastate.

MR CROUCHER:   Well, they were intra‑Commonwealth.

FRENCH CJ:   Intra‑Commonwealth, okay; one jurisdiction.

MR CROUCHER:   Yes, your Honour.  Now, finally, your Honours, can I move to – I see that the red light is up, your Honour, but the agreement between us was that I present the argument on behalf of all of the applicants, so if I may go on?

FRENCH CJ:   Yes, all right.

MR CROUCHER:   The third issue concerns the section 109 issue, and we say the third special leave question is this.  If the common law offence exists in relation to the judicial power of the Commonwealth does inconsistency with the meaning of section 109 arise between section 43 of the Crimes Act (Cth) and section 320 of the Crimes Act (Vic) because those two provisions prescribe different maximum penalties for the same behaviour, so that section 320 should be regarded as of no effect in extending the maximum penalty beyond the five years’ gaol.

FRENCH CJ:   Now, it is an inconsistency in penalty, not in offence creating?

MR CROUCHER:   Indeed.

FRENCH CJ:   Yes.

MR CROUCHER:   Unlike Momcilovic.  It is only to an extent; it is saying unlike the Liang & Li point, which I was seeking to make before, is that it is not a ceiling it is just a factor to which one has regard that there is a lower penalty for a like offence.  Here this would be a constitutional bar that says there is a ceiling, you cannot go beyond five years when you are dealing with an offence, as in this case, that concerns the judicial power of the Commonwealth, or relates to, to use the words of the section.  Now, in a footnote the Attorney argues – and this is at 248 of the application book, footnote number 1 – he argued that:

Any “operational inconsistency”, which could otherwise arise . . . is addressed and obviated by s 4C(1) of the Commonwealth Crimes Act –

and referred to various passages in Momcilovic where section 4C was discussed.  As I say, in Momcilovic it was argued that the different maximum penalty as applicable to the similar Commonwealth and State drug offences in question, which was 10 compared with 15 years, meant that the State provision was invalid in toto for indirect inconsistency and that the presentment charging of the accused in that case should have been quashed.

Unlike the present case, it was not argued in Momcilovic that the two offences could co‑exist, but the State provision was of no effect in extending the maximum penalty for the same behaviour beyond the Commonwealth maximum penalty.  There was no issue in Momcilovic about sentence.  In fact, she won her sentence appeal in the Court of Appeal and there was no issue in the High Court about sentence in that sense.

Secondly, in response to the Solicitor‑General’s argument we say that section 4C of the Crimes Act (Cth) seeks merely to avoid an offender being punished twice for “an act or omission” that “constitutes an offence under” Commonwealth law and another law or laws, whether they be Commonwealth, State or common law.  Neither section 4C nor this Court’s decision in Momcilovic says anything about whether where State and Commonwealth maximum penalty provisions for offences covering the same behaviour differ there may be inconsistency under section 109 such that when it comes to sentencing the higher State penalty provision is invalid to the extent of its inconsistency with the lower Commonwealth provision.

FRENCH CJ:   How is this reflected in your ground in the draft notice of appeal?

MR CROUCHER:   It is not, we would have to add a ground, your Honour, as, of course, we would in relation to the conviction point, and the terms of them would be these, your Honour.  On the 109 point the ground would have to be the sentence on count 1 was unlawful because it exceeded the maximum penalty that could be imposed for the offence of attempting to pervert the course of justice when committed in relation to the judicial power of the Commonwealth. 

The other added ground in relation to the conviction point, or various conviction points, would be the conviction on count 1 cannot stand (a) because the course of justice had ceased by the time the behaviour alleged was committed or (b), because the offence of attempting to pervert the course of justice when committed in relation to the judicial power of the Commonwealth is not an offence known to the law.  We could hand up a document to that effect, if your Honours wish to have that ‑ ‑ ‑

FRENCH CJ:   I think we had better see that.

MR CROUCHER:   Thank you, your Honour.  Just while that is coming up, a third distinction, of course, between Momcilovic and the section 4C issue is that as your Honours would remember, that in Momcilovic there was – I am not sure how the Court ended up describing the provision, but there was sort of what might be described as an attempt at saving provision, section 300.4 of the Commonwealth Code.

Remember at the start of the division dealing with drug trafficking offences in the Commonwealth Code there was this section 300.4 which is an attempt by the Commonwealth Parliament, no doubt, to say well, these things can co‑exist, both the State and Commonwealth offences.  Of course, the Court says you have got to be careful, they could at least be used like this to help construe what is the Commonwealth Parliament’s intention, but perhaps no more; they cannot avoid direct inconsistency.  In any event, there is no such provision in this field, as far as we can tell.  The final point, your Honour, is in relation to section 325 of the State provision which – that is the same, but even if we are wrong about all of this ‑ ‑ ‑

FRENCH CJ:   That imposes five years.

MR CROUCHER:   Indeed, but if we are wrong about all of this, that is to say the conviction was properly based, that Liang & Li is to be confined to intrastate comparisons, then there is still an argument in relation to section 325, for all the same reasons we gave before about their Honours’ misunderstanding of the approach, with respect, to the Liang & Li principle, and we otherwise rely on what we have written about that.

So there are several reasons, in summary, why we say special leave should be granted, your Honours, and they are, obviously, these are matters of first importance to the administration of justice and sentencing in Victoria and Australia wide.  Secondly, there are now these conflicting views amongst intermediate appellate courts on the principle in Liang & Li, with Liang & Li and Gordon and the other ones I mentioned on the one hand, and you have El Helou, a case that was a one‑paragraph remark, no reference to authority on the other, and now this case, of course.

FRENCH CJ:   You call these grounds to add if special leave is granted, but you are really seeking special leave to appeal in relation to the decision on conviction.

MR CROUCHER:   Yes, that is correct, your Honour.  Thirdly, of course, the Court of Appeal has now overruled our decision of long and good standing, Liang & Li.  Fourthly, obviously, whether there is a section 109 inconsistency between section 43 on the one hand and section 320 of the State Act on the other is a matter of wide importance.  Fifthly, there has been a miscarriage of justice in this case for any number of reasons.  First, the applicant’s sentence on this charge is twice as long as the previous highest sentence in this State for that offence, eight years compared with four, and that encompasses cases where witnesses have been intimidated or threatened and things like that.

Second, had the principle in Liang & Li been applied and applied properly it is likely that the sentence would have been much reduced.  Next, if the section 109 point is good then, by definition, the sentence is unlawful and it cannot have exceeded five years.  Finally, at least in part based on arguments put by the Crown, this applicant was wrongly convicted on count 1.

FRENCH CJ:   Yes, thank you.

MR CROUCHER:   If the Court pleases.

FRENCH CJ:   Yes, thank you.  Mr Carter.

MR CARTER:   Your Honour, I would respectfully adopt the submissions in writing of Mr Croucher and Mr Wraight and the oral submissions today by Mr Croucher, both as to the existing draft notice of appeal and the foreshadowed additional grounds.

FRENCH CJ:   Thank you.  Mr Tehan.

MR TEHAN:   We adopt the submissions of Mr Croucher also, your Honours.

FRENCH CJ:   Thank you.  Yes, Mr Silbert.

MR SILBERT:   Your Honours, we resist the application to transmogrify this from the sentence appeal, which it never was, before the Court of Appeal into a conviction appeal, which – my learned friend the Solicitor‑General and I have just been handed copies of grounds to add if special leave is granted.  It was never litigated before the Court of Appeal as to the validity of the conviction, and it is submitted that that raises entirely different arguments.  I will refer to Dickson v The Queen, that this Court would be familiar with, and perhaps to say that Liang & Li would be questionable authority in the light of this Court’s decision in Dickson v The Queen, given that what was applied in Liang & Li was a State offence in respect of the defrauding of the Commonwealth instrumentality.

Going from there, a decision of the Court of Appeal of longstanding in the summary of argument filed by the first respondent at paragraph 3.3, referring to the various decisions around Australia that my friend referred to in response to Justice Kiefel.  At 3.3, referring to Vellinos:

In support of that proposition, counsel has called in aid a little-used, but none the less significant, sentencing principle of fairness –

Liang & Li has never been applied in Victoria virtually since the decision was handed down.  It is not a decision of longstanding.  It has been confined by the Court of Appeal in its judgment in this case ‑ ‑ ‑

FRENCH CJ:   So far as the sentencing appeal is concerned, does not this really suggest that there is a question of principle raised, at least about the authority of Liang & Li and those which have followed it, and the difference of view?

MR SILBERT:   Indeed, your Honour, and if special leave were granted, the Crown would be filing a notice of contention in relation to precisely that matter.

FRENCH CJ:   Yes.

MR SILBERT:   Perhaps, having said that, it shows my hand effectively as to where the Crown rests in relation to Liang & Li.  I could go on with the supplementary positions which are set out in the first respondent’s amended summary of argument, namely that there were not viable alternative offences available, and that to suggest that section 43 – again raising the point, Justice Kiefel, there is a clear conflict between public justice at common law and section 43, which is confined to the judicial power of the Commonwealth.  They are not coterminous or coincidental applications.  They cover different ambits, and the submission set out in the written summary is that there is no Act alternative.

I do not know that I should take it beyond what your Honour the Chief Justice has just put to me.  If Liang & Li has given rise to massive confusion around the country, I do not quibble with that as a statement, and if that is sufficient for a grant of special leave, so be it.  My only objection would be to the adding of the additional grounds which would, as I say, convert this from a sentence appeal into a conviction appeal.

KIEFEL J:   Both additional grounds, or just ground 2?

FRENCH CJ:   What about ground 3?

MR SILBERT:   Well, ground 2.  Ground 3 comes within the ambit of the ‑ ‑ ‑

FRENCH CJ:   That was considered by them, yes?

MR SILBERT:   Yes.  I am happy to take any further questions from your Honours, but it seems that the matter has been exhaustively canvassed, effectively.

FRENCH CJ:   Yes, all right, thank you, Mr Silbert.

MR SILBERT:   If the Court pleases.

FRENCH CJ:   Mr Solicitor.

MR McLEISH:   If the Court pleases, the Attorney’s submissions are confined to proposed ground 3, which, as the Court has seen, arises on the assumption that the common law offence survives the enactment of section 43 of the Crimes Act (Cth).  That is not an argument that was raised in the Court of Appeal, but we submit that in any event, special leave should be refused for three reasons.

The first is that even if that argument was upheld, it would not lead to any lesser sentence in these cases, and we say that because at common law, the penalty for attempting to pervert the course of justice was at large.  That is noted in the Court of Appeal’s judgment at paragraph 13 on page 104 of the application book.  If the argument under section 109 was upheld and section 320 was invalid, the position given that all that section 320 purports to do is to prescribe a maximum penalty attaching to the common law offence, the position would be that the penalty was once again at large.  That, it is submitted, would not have led to any lesser sentence in this case.  In other words, the first point is that these cases are not suitable vehicles to decide the constitutional point regarding section 109.

The second point we make is that if the Commonwealth law section 43 and the common law offences both exist, that flows from the court having found that the Commonwealth law is consistent with the common law offence, which itself had no maximum penalty attaching to it.  In other words, once the Commonwealth law and the common law offences co-exist, it would follow that the Commonwealth law is not altered, impaired or detracted from, if the penalty for the common law offence is reduced by a State law.  The predicate for this ground of appeal, as my learned friend said, is that the common law offence exists, and we submit that carries with it at common law no maximum penalty for the offence.

Thirdly, we say special leave should be refused because the argument only works if it can be inferred that the Commonwealth provision affects the penalty that may be imposed for the co-existing common law offence.  However, section 4C(1) of the Crimes Act, which is extracted in our summary of argument at page 251 of the application book at the top of the page, expressly permits a person where Commonwealth and common law offences co-exist:

to be prosecuted and punished –

I emphasise the words “and punished” –

under either . . . Commonwealth or at common law –

In other words, so long as the two offences co-exist, the Crimes Act (Cth) contemplates two potential sources of law governing punishment.  In those circumstances, the argument that section 320 of the State Crimes Act alters, impairs or detracts from the Crimes Act (Cth) is untenable, it is submitted.

My learned friend referred to the Court’s decision in Momcilovic.  It is true that that was not an appeal against sentence, but one of the features of the argument was that there were differences in penalty.  We have alluded to this in footnote 1 of our summary on page 248.  I should say I do not propose to take the Court to Momcilovic.  Some of those references are in error.  Should I say in summary, six members of the Court rejected the argument that a difference in penalty alone gave rise to inconsistency under section 109. 

Your Honour the Chief Justice and Justice Bell agreed with Justice Gummow’s approach, in particular at paragraph 252 of the judgment, which held that there could only be a conflict in the nature of an operational inconsistency, in other words, a conflict that arose when both offences were charged, that is in any event dealt with under section 4C in the present case.  Your Honour Justice Kiefel along with Justice Crennan and similarly with Justice Heydon at paragraph 480 of the judgment relied instead on the absence of any intention on the part of the Commonwealth Parliament to exclude State law, or an intention to cover the field.

So although there were two different approaches, six members of the Court rejected the argument that there was necessarily a section 109 inconsistency, merely by reference to differences in the penalties. 

Justice Hayne took a different approach, contrary to what is said in our footnote at about paragraph 351.  Your Honours, for the reasons we submit, the point would make no difference in this case, and is bad because of section 4C in any event.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Croucher.

MR CROUCHER:   Your Honours, on the section 109 point, the Solicitor‑General is right to say that as put now, it was not raised below, but your Honours would have seen in the judgment that there were section 78B notices and section 109 was discussed, but it was slightly different to the way in which it has been argued now.  That is true enough.

On the Solicitor-General’s point about the penalty being at large, well that depends on the construction of all of this. It depends, for example, if section 43 and/or section 1.1 of the Commonwealth Code have effectively ousted the common law offence in relation to the judicial power of the Commonwealth well I mean that changes how it is considered, you see. But in any event, even if there is a common law offence surviving with an at large penalty, that does not conclude the argument against the applicants; quite the contrary.

In this State for years, until section 320 of the Crimes Act was introduced, all of those common law offences had penalties at large.  For example, false imprisonment was one of those, which now has a maximum penalty of either five or 10 years, I cannot remember which but even though the penalty was at large, the court would have regard to other like offences to get an idea of what the penalty was.  What would you do in this case?  You would look to the Commonwealth maximum penalty. 

When the Commonwealth itself has said, when it has virtually covered the field in section 43 for attempting to pervert the course of justice, but there is some ethereal attempting to pervert the course of justice at common law left, and it could be charged, what would a sentencing judge dealing with such an offence for a Commonwealth matter in a Commonwealth case do?  They would look to section 43 for guidance on what the penalty is.  So it does not change the point at all, with respect.  The point about section 4C, we understand the reference to the word “punishment” that the Solicitor-General fixes on, but none of that answers the question whether or not the words in section 4C extend to an intention to somehow render what would otherwise be inconsistent, consistent, matters of different penalty. 

All that section 4C is directed at, it seems to us, with respect, is avoiding double punishment or double prosecution, probably in the end, but really, double punishment.  That is why they use the word “punishment”, so

that if you have been charged under some Commonwealth law or some State law already and sentenced, then you cannot be dealt with again by virtue of section 4C.  It does not say anything about the question of penalty and how they might be different and how that might affect a Liang & Li type of question.  So that is what we say about the 109 point.

As to the conviction point, there was a submission made below that section 43 did oust the common law offence.  It was made as sort of an offences submission really, against an argument that somehow this penalty was at large rather than confined to 25 years, in section 320 for the common law offence.  So it has been agitated to some extent, but it is true to say ‑ ‑ ‑

FRENCH CJ:   Well, the applicants all pleaded guilty, and there was no challenge to the convictions.

MR CROUCHER:   That is true, but it is fair to say, your Honours, that but for the Crown’s points about the scope of attempting to pervert the course of justice vis-à-vis the scope of section 43, which is the statutory equivalent under Commonwealth Parliament provisions to the Crimes Act of attempting to pervert the course of justice, and this idea that the judicial power is spent upon the sentence being imposed, and the reference to section 1.1 of the Code, we would not be taking these points.

But it seems to us, with respect, they really should be dealt with at the same time because if the truth is that the extension of the Crown’s argument about judicial power being spent is that the common law offence could not have been made out here, then the sentence could not stand anyway. A sentence would be unlawful based on an unlawful conviction. So it really, in our respectful submission, should all be dealt with at the one time. Section 73, we should say, of the Constitution, as we read it, allows this Court to deal with that despite the fact that there was not a formal conviction appeal on foot below.

FRENCH CJ:   Thank you, Mr Croucher.

MR CROUCHER:   If the Court pleases.

FRENCH CJ:   There will be a grant of special leave limited to ground 1 of the notice of appeal.  The Court will adjourn to reconstitute.

AT 12.03 PM THE MATTER WAS CONCLUDED