Pratten v Commonwealth of Australia

[2017] HCATrans 121

[2017] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S116 of 2016

No S117 of 2016

B e t w e e n -

TIMOTHY CHARLES PRATTEN

Plaintiff/Applicant

and

COMMONWEALTH OF AUSTRALIA 

Defendant/Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 JUNE 2017, AT 10.37 AM

Copyright in the High Court of Australia

MR T.C. PRATTEN appeared in person.

MR N.J. WILLIAMS, SC:   May it please the Court, in each matter I appear with MR M.J. O’MEARA for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, gentlemen, there are two matters.  In the first of them, S116, we are dealing with the Commonwealth’s notice of motion for summary dismissal and, in the second of them, S117, we are dealing with the merits of Mr Pratten’s application for removal.  I propose to deal with the two matters separately and in that order so I will hear you first, Mr Williams, in S116.  I would expect the submissions on each side to be no more than 20 minutes and then I will hear, separately and sequentially, the application in S117 and, Mr Pratten, I will hear you first in that.

MR PRATTEN:   Thank you.

HIS HONOUR:   Mr Williams.

MR WILLIAMS:   May it please the Court.  We move on the summons filed on 28 July 2016.  In support of that we read the affidavit of David William Morris sworn on 28 July 2016 and the affidavit of Celestine Felicia Wang sworn on 8 May 2017.

HIS HONOUR:   Yes.

MR WILLIAMS:   If I could take your Honour to a brief paragraph of Mr Morris’ affidavit – in Mr Morris’ affidavit behind tab 3 in the folder – if your Honour’s version is tabbed – but exhibit DWM‑3 ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR WILLIAMS:   ‑ ‑ ‑ is the judgment of Justice Rothman in the Common Law Division of the Supreme Court.  The issues are apparent – if your Honour were to look to page 6 of the judgment ‑ ‑ ‑

HIS HONOUR:   Mr Williams, is this the one that is reported?

MR WILLIAMS:   Yes, it is, your Honour.

HIS HONOUR:   In 302 ALR 329?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   Yes.  I think I might look at it in that form.

MR WILLIAMS:   Yes, your Honour.  Paragraphs 2 through to 7 identify the issues that were agitated, in particular 6 and 7.

HIS HONOUR:   Yes.

MR WILLIAMS:   His Honour dealt with that submission at paragraph 160 through to 164.

HIS HONOUR:   Yes.

MR WILLIAMS:   Behind tab 6 of the affidavit, exhibit DWM‑6, is the judgment on the adjournment application.  If your Honour were to look at paragraph 1 your Honour will see the subject matter of the application.  The issues are then dealt with by his Honour from paragraph 8 and in particular paragraphs 9 and 10 with the conclusion at paragraph 13.

HIS HONOUR:   Yes.

MR WILLIAMS:   I do not need to take your Honour to it, but Ms Wang’s affidavit annexes as CFW‑1 the judgment of the Court of Criminal Appeal of 17 March 2017.  That was a Crown appeal and it resulted in an increase in the sentence.  If I could then take your Honour to one document in the exhibit folder that Mr Pratten has filed in recent days.  It is a large folder which is titled “Exhibit Folder” filed apparently on 7 June 2017.  That contains the summing‑up from the trial, Justice Rothman’s summing‑up to the jury and that document ‑ ‑ ‑

HIS HONOUR:   Mr Williams, am I to treat the entirety of this folder as in evidence before me on this application?

MR WILLIAMS:   We do not object to it being tendered in due course so for present purposes I can tender the material behind tab M, but we do not object to the tender of the affidavit.

HIS HONOUR:   Very well.

MR WILLIAMS:   Behind tab M is the summing‑up and the critical material is really from paragraph 118 on page 30 and through to paragraph 120.

HIS HONOUR:   Where did you say I should stop reading, Mr Williams?

MR WILLIAMS:   Well, perhaps 121, your Honour.

HIS HONOUR:   Yes.

MR WILLIAMS:   So, in short, the case as put to the jury was that there had been an understatement of income and that that understatement constituted a financial advantage and that is how it was left to the jury.  It is common ground, as we read Mr Pratten’s submission filed on 7 June – and this is on page 10 in paragraph 37 - that neither what are referred to as the “default assessments” nor any amended assessment was tendered in evidence.  I think it will be common ground that the income tax returns were tendered but in those circumstances it is simply a case where a jury was asked to find facts as part of its deliberations, did find facts and convicted on that basis.  Those findings have no implications whatever for the Commissioner of Taxation’s administrative process to the ascertainment of tax and there is, with respect, no substance in the contention that there is any kind of restriction on Mr Pratten’s rights in respect of that.

HIS HONOUR:   So the tax advantage in the criminal proceedings was said to be what precisely?

MR WILLIAMS:   The understatement of income resulted in lower tax.  The income stated in the returns which were in evidence was proved by the Crown to be less than it should have been and that that was the financial advantage in question.  It is upon that basis that there was a conviction.  No appeal has been brought from that conviction except by the Crown in respect of sentence.

HIS HONOUR:   I might be being a bit obtuse, or perhaps a little too precise, but did the tax advantage lie in the understatement of the income or in the consequence of the understatement of the income?

MR WILLIAMS:   The consequence, your Honour.

HIS HONOUR:   Yes, I see.

MR WILLIAMS:   So for those reasons we say there is no substance in the points raised and they should be rejected as lacking merit in the case – the relief sought in our summons granted.

HIS HONOUR:   Yes.

MR WILLIAMS:   Unless there are matters with which I can assist, those are our submissions.

HIS HONOUR:   You might do this – I would be assisted.  If you would perhaps crystallise for me your understanding of the exact arguments Mr Pratten seeks to raise in the substantive proceeding in this Court.

MR WILLIAMS:   Your Honour, as best we understand those arguments, and going here to the summons – sorry, going here to the writ of summons – page 2 of the writ, the nature of the claim identifies in clause 3 that:

The powers to make assessments of, and determine taxpayers ‘assessable income’ and ‘taxable income’ and ‘taxation liability’ is an administrative function peculiar to the Commissioner -

Objections were filed and in paragraphs 10 and 11 it is said that:

The implementation and administration of tax laws, and the actual raising of taxes, is exclusive of –

perhaps it is meant to be “to”:

the Executive arm of government, in particular the Department of Treasury and the Australian Taxation Office . . . The implementation and administration of tax laws, and the actual raising of taxes is not, and has never been the province of common law. 

The Commonwealth judicial powers in the Supreme Court of New South Wales do not go as far to permit the court to engage in procedural administrative processes exclusive of the Commissioner . . . which include assessing and determining taxpayers ‘assessable income’ and ‘taxable income’ and ‘tax liability’. 

In 12, that the Supreme Court has engaged in an:

administrative process tantamount to the procedural administrative processes –

and trammelled on functions to those – said not to be invested in the court, as is apparent from 13 and 14.

HIS HONOUR:   So it is the finding of a tax advantage by the jury constituted an improper judicial exercise of an administrative power?

MR WILLIAMS:   Yes.

HIS HONOUR:   Yes, I see.  That is the entirety of the point, as you understand it?

MR WILLIAMS:   I believe so, your Honour, yes.

HIS HONOUR:   Yes, very well.  Thank you.

MR WILLIAMS:   May it please the Court.

HIS HONOUR:   Mr Pratten?

MR PRATTEN:   Yes, your Honour.

HIS HONOUR:   Does that capture the way in which you seek to put the case?

MR PRATTEN:   To a degree.  Mostly, your Honour.

HIS HONOUR:   Yes.

MR PRATTEN:   There is some conflation between the writ of summons and almost what infringes on – what would otherwise be in an appeal.  So I am mindful not to get into that area.  Your Honour, I wonder if I might just ask for a tissue for a second.

HIS HONOUR:   Of course.  Do you want some water as well?

MR PRATTEN:   No, I am all good, thank you, your Honour.  Thank you.  The first thing, your Honour, I would like to clarify is the financial advantage.  Now, there is no specific term of financial advantage in the Criminal Code under which the proceedings – criminal trial was undertaken, but it was the Crown’s case in respect of the identification of the financial advantage was set out in a specific statement when his Honour Justice Rothman raised the issue during the proceedings, in fact on 6 August 2015.  Mr McHugh, SC, the Crown said the advantage of the ‑ ‑ ‑

HIS HONOUR:   Mr Pratten, I have the folder of exhibits you filed.  Are you reading from something within that?

MR PRATTEN:   Yes, your Honour, just the one paragraph there – number 20 in S116.  In the submissions, I am sorry.

HIS HONOUR:   In your submissions?

MR PRATTEN:   In my submissions, I apologise, your Honour.

HIS HONOUR:   Bear with me a moment.  Yes, thank you.

MR PRATTEN:   I think that is important and goes to the heart of the case as to what the financial advantage was.  If - your Honour, Mr Williams was just referring to the summing‑up of the trial and he referred to paragraph 118.  I think he asked you to read to 121.  On the second line of paragraph 119, his Honour said – and I will just read a few lines:

So, if Mr Pratten in fact received income that he did not declare, that is, a financial advantage from the Commonwealth, and got a tax advantage for it, that is a financial advantage from the Commonwealth.

That is, they say, some confusion as to what the financial advantage is.  I do not wish to tackle that today.  I think that is the matter of an appeal and I will be represented for that whereas I am not represented for these proceedings which I will finish off with later.  So, your Honour, I would ask you to accept that the financial advantage is the tax advantage which flows from the then alleged understatement of assessable income and taxable income.

HIS HONOUR:   So, in that respect I think there is no difference between what Mr Williams just put to me and the way in which you seek to put the case to me as distinct from the way you might seek to put it on appeal.

MR PRATTEN:   Excellent, thank you, your Honour.  I have managed to get that across with my limited skills.  The case that I bring involves a number of issues which go beyond what was brought in the civil proceedings of 2012, which has been described in the Commonwealth’s argument as a collateral attack.  That collateral attack, as they call it, was brought under 39B of the Judiciary Act and it was brought before Justice Rothman in the Supreme Court.  A number of issues arose in those proceedings which in the days before fell down and watered the case down, so to speak.  They did not include a number of the issues that I wish to agitate in these proceedings.

Now, in my submissions at paragraph 212, which is on page 42, I outline those matters – or the issues in the proceedings beginning with “The Hypothetisity” – and I assure your Honour it is a word on Google ‑ ‑ ‑

HIS HONOUR:   What paragraph is this?

MR PRATTEN:   Paragraph 212 in my submissions S116 – paragraph 212, page 42.

HIS HONOUR:   It means having the characteristics of an hypothesis, does it?

MR PRATTEN:   Yes.  Yes, your Honour. 

HIS HONOUR:   It is a very good word.

MR PRATTEN:   Thank you.  I could not work out another way to bring it about.  It is the hypothetisity of the financial advantage because if we just cut to the chase the jury is said to determine that a tax advantage arose on the understatement of income and to do so I can take you back, in a few moments, to the process that the jury were asked to undertake.  It was described both by the Crown and by his Honour as a circumstantial case.

So in the ordinary case of determining one’s tax we look at deductions, business expenses, depreciations and so forth and in this case this is what the jury did.  They were asked to do that and they even considered tax rates.  So what they had to do is take the assessable income, take from it all those things, determine if there was taxable income and then determine, apparently on tax rates, which I do not quite understand how the logic works, but then they had to determine that there was an amount of taxable income.

HIS HONOUR:   Yes.

MR PRATTEN:   Now, I say that is hypothetical because it does not – it is not real. It cannot be collected on, it cannot be imposed. I am not required to carry it as a debt. It is not a taxation decision. I will come to more of that in a few moments. Your Honour, the next part I go to is the failure to comply with the requirements of section 5 of the Constitution. Simply – I am sure your Honour is well versed in that particular section, but in the first line ‑ ‑ ‑

HIS HONOUR:   This is covering clause 5, I think ‑ ‑ ‑

MR PRATTEN:   Covering clause 5, yes.  Sorry, your Honour.

HIS HONOUR:   Yes.

MR PRATTEN:   In the first lines it says:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and every part of the Commonwealth –

Now, your Honour, I say that implied in that is that the laws will be – the laws of the Commonwealth will be applied both in the literal and operational context of which Parliament intends and as laws are made, is my understanding, that different elements of the allocation of power to administer laws and how they are administered are prescribed through those processes – through the various arms of government.

Peculiar to the Income Tax Assessment Act – the 1936, 1997 and the Administration Act and so forth is that the Commissioner has the fundamental duty to determine one’s income and tax per the usual assessment process and then if that is objected to, the taxpayer has those rights under Part IVC and on it goes through the – if it is exhausted all the way through the Federal Court and Full Federal Court and if special leave be granted, to this High Court.  At the end of that period, one has an ultimate tax liability.  They do or they do not in line with what the Commissioner originally assessed or not.  It comes back though that the Commissioner always makes the assessment and whether that be modified towards the end or not.

HIS HONOUR:   I am understanding your argument to be to the effect that for constitutional reasons the determination of the financial advantage could only be made through the tax assessment and appeal regime.  Is that the way you put it?

MR PRATTEN:   Not quite, your Honour.  It becomes further confused.  As a starting point for the financial advantage under the Criminal Code there are three essential elements.  The first is the obtaining of the financial advantage – and that can be looked at in two ways.  But then you have to attach the deception and dishonesty element to meet the requirements of the particular charge.  So you can still have a financial advantage but without dishonesty and without deception.  A financial advantage can be a myriad of things.

HIS HONOUR:   Of course.

MR PRATTEN:   So, your Honour, what I say is that it is a “cart before the horse” argument.  What ought to have happened is that the tax should have been determined in the usual process, whether there is any extra tax or not and then that is put to the jury.  The jury is then asked to decide whether the deception and dishonesty elements apply.  Your Honour, if I can have 60 seconds to digress to an example that I have come to, to explain it a little better.

HIS HONOUR:   All right, it is 60 seconds out of your 20 minutes, of course.

MR PRATTEN:   Yes.  A person arrives at the airport with a kilo of white powder.  They are arrested and charged with importing – let us call it cocaine, for instance.  In the usual course that cocaine would be analysed.  The chemist or the expert on behalf of the Commonwealth would say here it is and the jury would accept that that is the cocaine and they would only have to look at the elements against the law.

In the example – the analogy to my case is that here is the white powder given to the jury and then they are given microscopes with a chemistry set and a book for chemistry for dummies, so to speak, and then asked to determine whether or not it is the cocaine.  That is what I say that they have done in my case.

In the operation or context of the taxation laws and the regime of Part IVC it is clear beyond doubt that questions in relation to determining of income are determined by experts and people well versed in this.  There can be no doubt the Commissioner and his senior staff and others are experts and the audit staff are experienced and undertake courses in Part IVC.  In the Tribunal there are special provisions that persons hearing all cases in the AAT and, in particular tax, are – that the members hearing it will have the sufficient qualifications, et cetera, for that. 

I point to that in my submissions on – forgive me, your Honour – I point to that in here where a bill came in in 1979 specific for that purpose.  I will come back to that in a moment so I do not lose any time.  That, I say, is important.  His Honour Rothman during the course of the case agreed that the jury were lay people and at one stage he described that he would have to put the tax law in a way to them that may not be legally precise.  I say that that subjects me to a very narrow or narrower and a different standard to what a taxpayer might ordinarily get a chance to look at.

Now, there was a case years ago – Justice Toohey in – I have the case here, I do apologise – and it talks about that a taxpayer is only to be taxed on the income that they earn, not what they might have earned.  This is important because once again the jury is determining a hypothetical tax, and that is what I am being criminally punished for.  Now, I think it is – no, it is not Australian Machinery – I will come back to it.  I thought I had it at the tip of my fingers.

Now, your Honour, I could take you to some of the documents in – there are two charts.  There is a chart produced by the Commissioner which was attached to the position paper to which amended assessments were attached to which I objected.  That lists the number of transactions – 300 transactions to be precise – in my original documents I said it was 308.  I double counted.  But it is 300.  Then those transactions virtually, not completely, but virtually are the same as in the default assessments.

So, your Honour, take, for example, without taking you to a specific transaction, but they do match up with dates and amounts.  Let us say $5,000, a transaction on a particular date, and that is put to the jury and it is said well you work it out whether it is assessable or taxable income.  Now, the Supreme Court finds that – through the jury that it does and they rule to that effect.  I appeal that to the Court of Criminal Appeal.  They uphold it as income.  I go to the High Court perhaps and they also hold it as $5,000 income.

Now, in the parallel universe, or the Part IVC proceedings, let us say the AAT decide that it is not – that $5,000 is not income.  Then off to the Federal Court I go – I am sorry, the Commissioner appeals it to the Federal Court.  They decide no, we are with the Tribunal.  It is not $5,000.  We go to a Full Federal Court and they agree the same.  Then we get to the High Court and the High Court is in a position where they are ruling on the same transaction in answer to the same question of law as to whether it is assessable income or taxable income, does the High Court then rule against itself.

This puts myself in a very difficult position because I am fighting – it is almost like the Latin saying, I think, caput medusae, the heads of the monster, and it appears as though the Commonwealth, who is the same party through the whole thing, can have different positions on one question of law.

HIS HONOUR:   The question being whether the income was income according to ordinary concepts.

MR PRATTEN:   I would narrow it down more, your Honour, to assessable income or taxable income.  There was some confusion again as to what his Honour in the trial meant by “income in ordinary circumstances” and it appeared to – and this is a matter for appeal – it appeared as though it captured both statutory income and ordinary income.  So we never got down to those arguments, those distinguishing features in the trial.  But the question remains what it is.

The next part, being very quick, is that his Honour made it clear that there could be no financial advantage unless the default assessments issued but the jury were not working on the correctness of the default assessments.  Indeed, they were not provided them.  So they sat up here in some sort of nebulous form that they were issued and then the amounts behind them were not linked to the amounts given to the jury to decide.  So there was some confusion there.

That argument that I just gave you of the situation where the High Court could find itself ruling against itself can be narrowed down even further because that $5,000 that I used as an example – if in Part IVC proceedings that $5,000 is not held to be income at the end of the Part IVC proceedings then it must be that that $5,000 was never part of the default assessment.  So that part of the default assessments would never have formed the financial advantage.  It is not a default assessment as a concept.  It is the default assessment made up of the amounts within.

HIS HONOUR:   I think I need to be very careful to just understand the precise point you wish to put to this Court in its original jurisdiction by bringing this proceeding and let us not get that mixed up with what you might wish to put on your appeal in respect of confusion created by the way in which the case was presented to the jury.

MR PRATTEN:   Yes, your Honour.

HIS HONOUR:   So let us just try to focus on that one question.

MR PRATTEN:   Yes, your Honour.  So that comes back to the hypothetisity.

HIS HONOUR:   Yes.

MR PRATTEN:   I will move very quickly.  The questions of law as to whether there is – whether assessable income and taxable income is a question of law and as to whether the jury are deciding that question of law themselves, whether they are taking an extra step in deciding that ‑ ‑ ‑

HIS HONOUR:   All right.  So let me just understand it.  You rely on covering clause 5 and you say that the jury is being asked to decide a question of law?

MR PRATTEN:   That is correct.

HIS HONOUR:   All right.  Is there anything else – is there another way you put it?  I just really want the architecture of your argument.

MR PRATTEN:   Well, I say it is non‑justiciable. It is an unconstitutional misallocation of judicial power. Coming back to section 5 of the Constitution, it is a failure to apply the principles of the law correctly because I say implied in the binding of people, courts and judges to the laws that they be applied correctly and in their operation or context and then, your Honour, in that paragraph 212 where I outline those things. The rest can be viewed at your convenience. If so, your Honour, I talk about the procedural due process of natural justice and the differences in the standards and the structure in the Part IVC proceedings to arrive at the same question.

I would say one last thing on that, your Honour, and that is it is nothing to do with the imposition of tax.  So the Commonwealth have somewhat grasped this view that I am trying to say well you cannot impose it and I agree it cannot be imposed.  It is – before we get to the imposition of tax we come to a discrete question as to whether a receipt or transaction is assessable income and taxable income and I say that is the vice because that question can only be decided under the operations - the legal operations of the tax laws.  That is for the Commissioner and Part IVC process.  That is not a question for the jury because that is a specific question:  is this receipt or transaction assessable or taxable income?

Just finishing very quickly, I do not claim that I am prevented from running the Part IVC proceedings as a result of a – and that is a bad way of putting it, running the Part IVC proceedings, but nonetheless the Commissioner and the entity – the Tribunal and the Federal Court can take all matters into account and they can take into account that I have been convicted on the matters that have been determined.  There is nothing prohibiting that but I am not saying that they will.  Your Honour, I could go on and on, but I think I have probably made my point.

HIS HONOUR:   You have made your point very well, I think.  There are just two questions.  You mentioned that the jury was left with some calculations to make and you gave me, I think, a specific example.  Is there something you wish me to look at in the exhibit folder?

MR PRATTEN:   Yes, your Honour, in 116, my submissions in paragraph ‑ ‑ ‑

HIS HONOUR:   This is your submissions, 116, yes.

MR PRATTEN:   Yes, your Honour, paragraph 52 – it moves on to 53 and 54.

HIS HONOUR:   Paragraphs 52, 53 to 54.

MR PRATTEN:   Yes.

HIS HONOUR:   Okay, well, I will need to look at that carefully.

MR PRATTEN:   Yes, your Honour.

HIS HONOUR:   Now, I will treat your exhibit folder as in evidence before me.

MR PRATTEN:   Thank you, your Honour.

HIS HONOUR:   But I will not be going through the detail of that save insofar as it has been referred to in the paragraphs in your submissions that you have taken me to in the course of your oral submissions.

MR PRATTEN:   May I then just point out between some other paragraphs, your Honour ‑ ‑ ‑

HIS HONOUR:   Please do.

MR PRATTEN:   ‑ ‑ ‑ that capture much of my case.  It begins under the heading of “Principles of Law” and begins at paragraph 61 and runs to 135.  I would not dare take you any further than that, your Honour.

HIS HONOUR:   Paragraphs 61 to 135.

MR PRATTEN:   Correct.

HIS HONOUR:   Very good.  All right, thank you very much, Mr Pratten.

MR PRATTEN:   Thank you.

HIS HONOUR:   Mr Williams, do you have anything in response?

MR WILLIAMS:   I should just add to the paragraphs.  Your Honour invited me to say which paragraphs within the exhibit and behind tab M in the summing‑up of Justice Rothman that your Honour should go to.  I should, in light of the submission put, call attention also to paragraphs 123 and 124 where Justice Rothman put the case on income in its ordinary sense, not including any special statutory meaning.

HIS HONOUR:   What is he referring to in paragraph 123.  He is quoting from something, a document that ‑ ‑ ‑

MR WILLIAMS:   His written directions – they are not in the folder, your Honour.

HIS HONOUR:   I see, all right.

MR WILLIAMS:   And 209 and following - yes, 209 really through to paragraph 212.

HIS HONOUR:   Yes, that makes much clearer, I think, the way in which the case was put.

MR WILLIAMS:   Yes, I should have gone there in the first instance.

HIS HONOUR:   All right.  Thank you, Mr Williams.  Now, that then deals with matter No 116.  We will move to 117 and that is where it is your application, Mr Pratten.

MR PRATTEN:   Yes, your Honour, thank you.  The application to remove, your Honour, is very similar to – in fact, almost the same as 116.  The reason the two applications were brought, the application to remove which we are talking about now, and the writ of summons that we just spoke about, is that each sought slightly different orders.  The application to remove, of course, raised the issue that the cause should be removed – in the Supreme Court should be removed into the High Court to determine the questions that we are talking about now so as to determine whether or not his Honour could meet – Justice Rothman could meet the requirements, the statutory requirements in sentencing, most particularly the objective seriousness of the offence. 

For the reasons of the hypothetisity of the financial advantage and the calculation, et cetera, I said that he could not.  That is the reason why I brought that application.  If I failed at that application to remove the cause it was not clear to me that this Court could do anything to remedy this situation, so the writ of summons sought a stay, a permanent stay, on the similar basis.  I could not work out quite how to do it so that is why we find ourselves here.  Now, there are some issues that arise by this.

HIS HONOUR:   Now, let us go back a step.  I understand historically why you did it this way.  The proceeding you want to remove is now completed.

MR PRATTEN:   Yes, your Honour, that is the elephant in the room.

HIS HONOUR:   Well, I think it is out there now.

MR PRATTEN:   It is out there, yes.

HIS HONOUR:   There is nothing wrong with saying it seemed like a good idea at the time, but the time has passed.  Is that not where we are at the moment?

MR PRATTEN:   Well, except for this argument, your Honour.  I say that the decision to bring that matter to an end by the sentencing or final judgment ought to be a nullity.  Immediately prior to the sentencing I filed a notice of motion and the notice of motion attached – a notice of motion in the Supreme Court attached both applications, S116 and S117, and asked his Honour Rothman not to proceed with the sentencing that day so that the High Court proceedings could be determined.

Now, his Honour – I was represented for the sentencing but they were not representing me in this notice of motion.  Now, in very simple terms, my submissions, your Honour, in a similar form to S116 – and I have S117 and I would like to tender that, if I may ‑ ‑ ‑

HIS HONOUR:   I will receive your submissions as submissions.  You do have an affidavit and I think the same exhibit folder.  Is that right?

MR PRATTEN:   Yes, a shared exhibit folder.  Yes.

HIS HONOUR:   All right, well, I will take your affidavit of 26 April 2016 as read and I will treat your exhibit folder as an exhibit in this proceeding as well.

MR PRATTEN:   Thank you, your Honour.  If you looked at paragraphs 162 to 188 it sets out the reasons why I say that this Court, I think under its powers, section 32 of the Judiciary Act sort of entitles the High Court to do anything it wants within reason.

HIS HONOUR:   Well, maybe within the law.

MR PRATTEN:   Within the law, of course, your Honour.  I brought section 40 of the Judiciary Act to the attention of his Honour Rothman.  I did not have a copy with me at the time ‑ ‑ ‑

HIS HONOUR:   Mr Pratten, what is the point?  Your point is that the ‑ ‑ ‑

MR PRATTEN:   The sentencing judgment – the end of the cause, the completion of the cause occurred on a misconception or misconstruction of section 40, in particular subsection (1) ‑ ‑ ‑

HIS HONOUR:   Yes, and you say that leaves the sentence to be a nullity.  Is that the way it goes?

MR PRATTEN:   Yes, your Honour.

HIS HONOUR:   So the cause is still pending to your case and so can be removed.  Is that the way it goes?

MR PRATTEN:   That is what I say, your Honour, because – that is it in a nutshell.  It is clear beyond any doubt that his Honour misconstrued it.  He said the argument is for the High Court, not for me but the High Court.  Anything I do hereafter will not impact on the High Court proceedings.

HIS HONOUR:   Now, where do I find the reference to those remarks?

MR PRATTEN:   Yes, your Honour.  If you turn to paragraph 173 and it goes through from 173 to 175 and, your Honour, in the annexures - your Honour, behind tab R for Romeo, in my folder, is the motion judgment as I call it.  In my submissions I refer to the particular paragraphs.  His Honour says, at paragraph 15 of the motion judgment: 

The imposition of the sentence makes no difference to the capacity of the High Court to deal with the issues that have been raised and certainly does not render the High Court proceedings nugatory.

His Honour goes on in paragraph 14 – sorry, 13, before that: 

Of course ultimately that is not a matter for me.  That is a matter for the High Court of Australia.

In paragraph 14 he says: 

if I were found to be wrong in that assessment of the arguability of the ground, the application before the High Court is not rendered nugatory by anything I hereafter may proceed to engage upon -

Now, your Honour, these proceedings were commenced before – these proceedings in the High Court were commenced before the sentencing and the final judgment was handed down.  What his Honour has done is effectively extinguish proceedings before the High Court.  Now, it is my understanding that the High Court sitting at the apex of Australia’s judicial system in the hierarchy, that the Supreme Court cannot extinguish proceedings in the High Court, cannot snap it from under me. 

Effectively he is saying to the Justices of the High Court, “Well, you cannot hear this, I have decided that”.  But that is not what his Honour has actually gone and done.  He has misconstrued it and if you look at the decisions in Craig and Kirk they demonstrate that a court that takes something into consideration or does not take into consideration or misconstrues or misconceives something engages upon judicial error - jurisdictional error, I should say, or a substantial error in law.  That is what I say has happened in this case.  He has robbed me of the ability to argue these things. 

Now, these issues that I have raised in 116 and in 117 were not raised in the course of the criminal proceedings.  So to raise them in an appeal I am subject to the speed bump, if you will, of rule 4 and that is a very high hurdle to get over.

HIS HONOUR:   All right.  Now, I understand then the way in which you have put the case, that the proceeding is still on foot because you say that the sentencing was affected by jurisdictional error and is a nullity.

MR PRATTEN:   Yes, your Honour.

HIS HONOUR:   Now, if you were to put your case substantively for removal would you be wanting to raise any substantive argument different

from the arguments you have already outlined that you wish to put on the writ of summons in S116?

MR PRATTEN:   No, they would be in the same – I would caveat that by saying that I do not know what I do not know.  I am not legally represented and so therefore I do not know if I have uncovered and crafted every argument perfectly or I have gone off into the yonder where I should not have gone.  One of the reasons I have been unable to obtain – or the primary reason that I have been unable to obtain legal representation, as I point out to at the end of each of my submissions, is that my funds were exhausted in a first trial that I was convicted on, appealed successfully, but during the course of those proceedings I went on to Legal Aid.

I am now funded by Legal Aid in the conviction and sentencing appeal for this case and that will be on some time next year, I suppose.  But because the horse has bolted, so to speak, I have been unable to obtain legal aid for representation for these proceedings, even a merit advice.  In finishing this in 30 seconds, the fundamental issue is that all assets that I have available to me are tied up in proceeds of crime though we have, as I understand it – forgive me, I have no legal training so I do not know if I am making sense here, but the Dietrich argument ‑ ‑ ‑

HIS HONOUR:   Well, we are a long way from the merits of your application here.

MR PRATTEN:   All right, I will not go there.  But to answer your question before, as best I can identify today, that is where I am at right now with this.

HIS HONOUR:   All right, thank you.  That is helpful.  Well, Mr Williams, can a judgment of the Supreme Court of New South Wales ever be a nullity?

MR WILLIAMS:   No.  It is a judgment of a superior court of record.  It is valid and enforceable until set aside on appeal.

HIS HONOUR:   Was there anything wrong with what Justice Rothman did in Pratten (No 26)?

MR WILLIAMS:   No, your Honour.  The reference to which your Honour has been taken in paragraph 14 of that judgment to an application is contextually, when one looks at paragraph 2 of that judgment where his Honour acknowledges that there were two matters on foot in this Court, the later reference is a reference to the 116 application where his Honour says the arguments will still be able to be made and will not be rendered nugatory.  Plainly, his Honour could not have thought that proceeding to

sentence would have any effect other than rendering the removal application nugatory and that is to be read therefore as a reference to application 116.  Read in that way it is, with respect, entirely correct.

HIS HONOUR:   Thank you.  Mr Pratten?

MR PRATTEN:   I just have one last thing, your Honour.  In both my submissions, 116 and 117, on or around about paragraphs 181 through to about 187, I talk about the steps that I have taken to appeal that motion judgment.  Very quickly, on 13 December I filed material with the Court of Appeal, New South Wales Court of Appeal.  I thought that the motion was more of a civil matter than a criminal matter.  The Court of Appeal then wrote back and said no, we think it is a matter for the Court of Criminal Appeal. 

I then put on the relevant applications to appeal from the motion judgment in the Court of Criminal Appeal.  They would not hear it for two reasons.  The first reason was they considered it interlocutory argument – interlocutory judgment and therefore unappealable.  The second part is that I was out of time to do so, so I could not get it across the counter. 

Your Honour, after that, and recently, I attempted to put a show cause application on at this Court, show cause as to why relief in the nature of mandamus should not be granted to compel the New South Wales Court of Criminal Appeal to hear and determine according to law the applicant’s appeal for motion judgment.  It was not accepted as it was incompetent.  I have no legal training.  I have no access to legal documents at the gaol, nothing, no online access.  So I do not know where to go from there. 

Now, my lawyer, my appointed lawyer is Michael Blair.  He has not looked at this.  He has not been paid.  He says that it is unlikely that I will be able to appeal the motion judgment in any forthcoming sentencing or conviction appeal.  So I am left, your Honour, regardless of everything, I am left subject to this injustice of having, on the face of the record, a ruling that is incorrect at law.

HIS HONOUR:   Thank you.  I have been assisted by the oral submissions in these matters.  I propose to reserve and deliver my reasons and to make orders next Friday, 16 June at 9.15 am.  There will be no need for the attendance of the parties.

MR WILLIAMS:   May it please the Court.

HIS HONOUR:   The Court will now adjourn.

AT 11.39 AM THE MATTERS WERE ADJOURNED