R v England

Case [2004] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ENGLAND

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)

26 August 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE

Appeal against declaration that defendant incapable of controlling sexual instincts and direction that defendant be detained in custody until further order - whether Judge erred in law in making a declaration and direction pursuant to s 23(5) of the Criminal Law (Sentencing) Act 1988 - whether Judge erred in holding that the requirements of s 23(5) had been satisfied - whether s 23(5) requires each medical practitioner to express the opinion that defendant is incapable of controlling sexual instincts - whether s 23(5) requires that each medical report independently of the other supports conclusion that defendant incapable of controlling sexual instincts - whether s 23 is invalid as inconsistent with the exercise of judicial power - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) Part 2 Div 3, s 18A, s 23, s 23(2), s 23(3), s 23(4)(a), s 23(5); Criminal Law (Sentencing) Act 1988 (SA) s 24, s 24(6), s 27, s 27A, s 32(5)(c); Correctional Services Act 1982 (SA) s 75(1); Commonwealth of Australia Constitution Act Ch III, s 71; Judiciary Act 1903 (Cth) s 78B; Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii); Criminal Law Consolidation Act 1935 - 1975 (SA) s 77, s 77a, s 319; Mental Health Act 1993 (SA); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), referred to.
Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1; Kruger v Commonwalth (1997) 190 CLR 1, distinguished.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; R v O'Shea (1982) 31 SASR 129; R v England (2004) 87 SASR 411; R v Granger [2004] SASC 156; Nicholas v The Queen (1998) 193 CLR 173, discussed.
R v England (2003) 86 SASR 273; Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; Silbert v Director of Public Prosecutions (WA) [2004] HCA 9; R v Moffatt [1998] 2 VR 229; Veen v The Queen [No 2] (1988) 164 CLR 465; Chester v The Queen (1988) 165 CLR 611; Attorney-General (Qld) v Fardon [2003] QCA 416; Hamdi v Rumsfeld 72 USLW 4607; Al-Kateb v Godwin (unreported) [2004] HCA 37; R (Anderson) v Home Secretary [2003] 1 AC 837; Gilbertson v South Australia (1976) 15 SASR 66, considered.

R v ENGLAND
[2004] SASC 254

Court of Criminal Appeal:          Doyle CJ, Perry and White JJ

  1. DOYLE CJ           Mr England has appealed…

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AGLC
R v England [2004] SASC 254
Case
[2004] SASC 254
Decision Date

CaseChat Overview and Summary

The case of R v England is an appeal against a declaration made by the Supreme Court of South Australia that the defendant, Mr England, was incapable of controlling his sexual instincts, and a direction that he be detained in custody until further order. The appeal was heard and dismissed by the High Court of Australia. Mr England’s counsel argued two main points on appeal: first, that the Judge erred in law in making the declaration and direction pursuant to s 23(5) of the Criminal Law (Sentencing) Act 1988, and second, that s 23(5) and associated provisions were invalid. The counsel argued that the sentence of imprisonment meant that the sentencing function was spent, and that the direction for detention infringed the limits of the exercise of judicial power because it required the court to fix an additional penalty. It was further argued that s 23 was invalid as inconsistent with the exercise of judicial power under Chapter III of the Constitution.

The court considered the arguments raised and the relevant legal principles. It referred to the High Court’s decision in Kable v Director of Public Prosecutions (NSW) which held that a State law which gave the Supreme Court powers to determine issues of a purely governmental nature, or required the Supreme Court to act in a manner so inconsistent with accepted notions of judicial process as to apparently make it an instrument of executive government policy, would be invalid. The court also referred to earlier High Court decisions which established the principle that State courts must not be required to exercise their powers, or to act, in a manner that would render them unsuitable as courts to exercise Commonwealth judicial power.

The court concluded that the power exercised under s 23 was not necessarily judicial power, and that State courts may validly be granted powers that are not judicial powers. However, the principle expressed in Kable is intended to ensure that State Supreme Courts are not required to exercise their powers, or to act, in a manner that would render them unsuitable as courts to exercise Commonwealth judicial power. The court found that the principle must be applied with careful attention to the detail of the legislation, and that it was not necessary to decide whether the power exercised under s 23 was properly characterised as judicial power or not.

The court dismissed the appeal and upheld the validity of s 23(5) of the Act. It held that the sentencing process was not immutable, and that Parliament was at liberty to change it unless it conferred on the court functions or powers that were inconsistent with the requirements of the Australian Constitution, or for some other reason beyond the reach of legislative power. The court emphasised that the principle underlying Kable must be applied with careful attention to the detail of the legislation, and that the requirements of judicial process must be considered in each case.

Orders

Orders of the court

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Background

Background to the litigation

Mr Tilmouth QC, counsel for Mr England, argued two matters on appeal. First, that in the circumstances the Judge erred in finding that a basis for making the declaration and giving the direction was established. Second, that s 23(5) of the Act and associated provisions were invalid. Mr Tilmouth argued that the imposing of the sentence of imprisonment meant that “the sentencing function was spent”. The direction for detention until further order “infringed the limits of the exercise of judicial power” because s 23(5) of the Act (set out below) required the court to fix an additional penalty. By requiring the court to impose a second punishment, it created the impression that the judiciary had become an arm of government. As the argument developed, it appeared to be that the provisions in s 23 were invalid because they confer on the Supreme Court a function or power inconsistent with a requirement of apparent and actual independence from the executive government, in particular a function or power inconsistent with the requirement that the Supreme Court not be required to act in a manner so inconsistent with accepted notions of judicial process as to apparently make it an instrument of executive government policy. This was said to be incompatible with the Supreme Court exercising the judicial power of the Commonwealth under Chapter III of the Constitution, and so to be in conflict with the Constitution leading to invalidity. The submission is based on the decision of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.Background matters Mr England has a criminal record that includes an offence of robbery with violence in 1992, and two offences of rape and one of indecent assault in 1992. He was sentenced to imprisonment for those offences, and was released on parole in April 1998. The latest offences were committed in late 1998, about six months after his release on parole. The earlier and later offences present a pattern of conduct of a disturbing kind. The two rape offences in 1992 involved Mr England breaking into the victim’s home in the early hours of the morning while the victim was asleep in bed, waking her and then raping her, discouraging her from resisting by saying he had a knife. The same type of conduct was involved in the 1998 offences. In each case the offence was committed late at night or in the early hours of the morning, Mr England entering the home of the victim while the victim was asleep. In each case the victim was awoken and either subjected to an indecent assault or a rape. On some occasions Mr England took some property. On one occasion he said he had a gun, on another occasion he said he had a knife and on another occasion he said he had a person with him who had a gun. Not surprisingly the victims have suffered severely as a result of their experiences. These circumstances explain the heavy sentence imposed by the Judge. Notice was given to the Attorneys-General, as required by s 78B of the Judiciary Act 1903 (Cth), of the argument based on Kable. Only the Attorney-General for South Australia intervened, and he did so to put submissions in support of the validity of the legislation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ PERRY J (dissent) WHITE J (dissent)
As to the issue of legislative dictation or the want of independent decision making, I refer by way of illustration to what Brennan CJ said in Nicholas at [20]:“Some characteristics of a court flow from a consideration of this function, including the duty to act and to be seen to be acting impartially. We are not concerned with these characteristics in the present case, except in so far as the duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find or not to find a fact or otherwise to exercise judicial power in a particular way. A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.” (Footnotes omitted)As to the requirement of independence affecting the kind of function that may be conferred on a State court, I refer to what McHugh J said in Kable at 117:“While nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State. A State law which gave the Supreme Court powers to determine issues of a purely governmental nature – for example, how much of the State Budget should be spent on child welfare or what policies should be pursued by a particular government department – would be invalid. It would have the effect of so closely identifying the Supreme Court with the government of the State that it would give the appearance that the Supreme Court was part of the executive government of the State. The law would fail not because it breached any entrenched doctrine of separation powers in the State Constitution but because it gave the appearance that a court invested with federal jurisdiction was not independent of its State government.” (Footnote omitted)I refer also to what Gummow J said on this point, in a passage which touches on matters of procedure and substance. He said at 134:“The Act is an extraordinary piece of legislation. The making thereunder of “detention orders” by the Supreme Court in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect. This is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary. The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred.”Conclusions

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ,

However, I emphasise the point that the sentencing process as it is understood today, is not immutable by any means. Parliament is at liberty to change it. The wisdom and merit of those changes is a matter for Parliament. Unless Parliament confers on the court functions or powers that are inconsistent with the requirements of the Australian Constitution, or for some other reason beyond the reach of legislative power, those functions and powers are validly conferred.Consideration of submissions As I said earlier, Mr Tilmouth focused his submission on the fact that the direction for detention until further order is purely preventive and protective, the purpose of punishment being served by the sentence imposed. I have referred to other aspects of the regime that I consider warrant consideration. It is not necessary to decide whether the power exercised under s 23 is properly characterised as judicial power or not. State courts may validly be granted powers that are not judicial powers. The principle expressed in Kable, which principle finds its roots in earlier High Court decisions referred to in Kable, does not rest on the principle that State courts, in which the judicial power of the Commonwealth maybe vested, may exercise only judicial powers. The limitation on State legislative power that is found in Kable is a narrower limitation than the limitation on Commonwealth legislative power in respect of Commonwealth courts. On the other hand, it rests on a principle that cannot be neatly summarised. Earlier in these reasons I set out the attempt that I made in Granger to summarise the principle. The principle of Kable is intended to ensure that State Supreme Courts are not required to exercise their powers (judicial or non-judicial), or to act, in a manner that would render them unsuitable as courts to exercise Commonwealth judicial power. According to Kable (putting things briefly and somewhat generally for the sake of convenience), a State court will be an unsuitable repository of Commonwealth judicial power if it is a court required by State legislation to act in a manner fundamentally inconsistent with the usual requirements of judicial process (this can embrace substance and procedure), and in particular if the court is required to perform a function or to act in a manner (as a result of legislative dictation or direction, or procedural provisions) that makes the court appear a mere instrument of the executive government in implementing the will of the legislature. In each case in which Kable is invoked, it is necessary to return to what was said there, and to consider closely the application of the relevant principle to the circumstances in question. The principle that underlies Kable must be applied with careful attention to the detail of the legislation. As to the requirements of judicial process, as I have called it, I refer to what Gaudron J said in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [74]:“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”I do not think Her Honour meant that each of these prescriptions must be met in every case. However, with respect, Her Honour has summarised in that passage matters that fall for consideration in applying the principle stated in Kable, even though Her Honour was there considering Commonwealth legislation.