R v Wheeldon [No 1]

[1978] FCA 23

THE QUEEN v. WHEELDON (No. 1) (1978) 33 FLR 402
Criminal Law

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Bowen C.J.(1), Blackburn(1), Fisher(1) JJ.

CATCHWORDS

Criminal Law - Whether penalty of imprisonment for life is mandatory for crime of murder in Australian Capital Territory - Whether person found guilty of charge of murder in Australian Capital Territory is liable to imprisonment by Crimes Act or by Death Penalty Abolition Act - Crimes Act, 1900 (N.S.W.), ss. 19, 442 (1) - Death Penalty Abolition Act 1973, ss. 4,5.

HEADNOTE

Pursuant to s. 26 of the Federal Court of Australia Act 1976, the Supreme Court of the Australian Capital Territory reserved a question of law for the consideration of the Full Court of the Federal Court of Australia. That question was whether in the Australian Capital Territory the penalty of imprisonment for life for the crime of murder is mandatory. The court answered "No" to the question and sentence was passed by the Supreme Court of the Australian Capital Territory on 7th April, 1978. The relevant facts appear in the report of that judgment: The Queen v. Wheeldon (No. 2) (1978), 33 FLR 409.

By s. 6 (1) of the Seat of Government Acceptance Act 1909 the criminal law of New South Wales, and in particular the Crimes Act, 1900, was made applicable to the Australian Capital Territory. At that time s. 19 of the Crimes Act provided that "whosoever commits the crime of murder shall be liable to suffer death". Section 442 of the Crimes Act made provision for sentences of imprisonment to be passed of less duration than those fixed by the Act.

In 1973 the Death Penalty Abolition Act 1973 was enacted. Sections 4 and 5 provide as follows: "4. A person is not liable to the punishment of death for any offence." "5. Where by any law in relation to which this Act applies (including a provision that would, but for this Act, have effect by virtue of such law) it is provided that a person is liable to the punishment of death, the reference to the punishment of death shall be read, construed and applied as if the penalty of imprisonment for life were substituted for that punishment."

In 1974 s. 442 (1) of the Crimes Act was deleted and the following new subsection substituted: "(1) Where by this Act an offender is made liable to imprisonment for life or to imprisonment for a fixed term, the Court may nevertheless pass a sentence of imprisonment of less duration."

Held: (1) The Death Penalty Abolition Act 1973 has no separate or independent effect and cannot be construed otherwise than as one with each of the Acts which provide the death penalty.

(2) The expression "this Act" in s. 442 (1) of the Crimes Act, 1900 (N.S.W.) includes the requirement of the Death Penalty Abolition Act that punishment of death is to be read as imprisonment for life, and therefore the court is empowered to pass a sentence of less duration.

(3) The penalty of imprisonment for life for the crime of murder in the Australian Capital Territory is not mandatory.

HEARING

Sydney, 1978, March 9; April 13. #DATE 13:4:1978

CASE STATED.

The relevant facts appear in the judgement hereunder.

Dr. D. O'Connor, for the prisoner.

J. J. A. Kelly Q.C. and R. E. Williams, for the Crown.

Cur. adv. vult.

Solicitors for the prisoner: Macphillamy, Cummins and Gibson.

Solicitor for the Crown: A. R. Neaves (Commonwealth Crown Solicitor).

JUDGE1

April 13.

THE COURT answered the question reserved by way of special case on 9th March, 1978, and on 13th April, 1978, delivered the following judgment. (at p403)

1. This is a question of law reserved for the consideration of the Full Court of the Federal Court of Australia by the Supreme Court of the Australian Capital Territory pursuant to s. 26 of the Federal Court of Australia Act 1976. In the special case the question is stated as follows: "Whether in the Australian Capital Territory since the coming into operation of the Death Penalty Abolition Act (Cth) and the Crimes Ordinance 1974 (A.C.T.) the penalty of imprisonment for life for the crime of murder is mandatory." (at p403)

2. On 27th February, 1978, Timothy Justin Wheeldon was found guilty by a jury in the Supreme Court of the Australian Capital Territory of the charge of having on 13th July, 1977, murdered Joan Murray Wheeldon. He had been remanded in custody for sentence and the Chief Judge has sought from this Court a direction whether he is obliged to impose the sentence of imprisonment for life. (at p403)

3. By s. 6 (1) of the Seat of Government Acceptance Act 1909 the criminal law of New South Wales, and in particular the Crimes Act, 1900, was made applicable to the Australian Capital Territory. Section 6 (1) makes such laws applicable "until other provision is made". Such other provision has been made on a number of occasions by Ordinances enacted by the Governor-General (Seat of Government Administration Act 1910-1973, ss. 4 and 12). These Ordinances have the effect of amending the Crimes Act, 1900 as made applicable to the Territory. Amendments to the Crimes Act, 1900 have been enacted by the New South Wales legislature since 1909 but these have no application in the Territory. The Parliament of the Commonwealth was at all times empowered by s. 122 of the Commonwealth Constitution to make laws "for the government of any Territory surrendered by any State to, and accepted by, the Commonwealth". It was doubtless in exercise of this power, amongst others, that the Death Penalty Abolition Act 1973 was enacted. (at p403)

4. In 1909 the elements of the crime of murder were set out in s. 18 of the Crimes Act, 1900 (N.S.W.). Section 19 as at that date provided that "whosoever commits the crime of murder shall be liable to suffer death". In addition s. 442 made provision for sentences of imprisonment to be passed of less duration than those fixed by the Act. Such was the position at the time the Crimes Act, 1900 was made applicable to the Territory. Though amendments thereafter by the New South Wales legislature have no application to the Territory, it may be noted that in 1955 s. 19 was amended in New South Wales by deleting the penalty of death and inserting penal servitude for life. Moreover the legislature considered it appropriate to add a further sentence to the section, that the provisions of s. 442 "shall not be in force with respect to the sentence to be passed under this section". (at p404)

5. Turning to the Territory, the Crimes Act, 1900 as applicable to the Territory was amended from time to time by Ordinances made by the Governor-General, none of which until 1963 have any relevance to the present issue. In 1963 by s. 23 of Ordinance No. 11, a new s. 442 (1) was substituted in the following terms: "(1) When by a section of this Act an offender is made liable to penal servitude for life, or to penal servitude or imprisonment for a fixed term, the Judge may nevertheless pass a sentence of either penal servitude or imprisonment of less duration". (at p404)

6. The next step was the passing of the Death Penalty Abolition Act. It is important to note that it was specifically provided by s. 3 (1) to have application within and outside Australia and to extend to all the Territories. Section 3 (2) directs its application to and in relation to offences under the laws of the Commonwealth and the Territories. Thus attention was not specifically directed to the provisions of the Crimes Act as applicable to the Territory but that law was merely one of the many laws of the Commonwealth and the Territories to which the new Act applied. Sections 4 and 5, which are the relevant sections, are as follows: "4. A person is not liable to the punishment of death for any offence." "5. Where by any law in relation to which this Act applies (including a provision that would, but for this Act, have effect by virtue of such a law) it is provided that a person is liable to the punishment of death, the reference to the punishment of death shall be read, construed and applied as if the penalty of imprisonment for life were substituted for that punishment." (at p404)

7. The last relevant peice of legislation is the amendment made by s. 6 of Ordinance No. 17 of 1974 to s. 442. Section 442 (1) was deleted and the following new subsection substituted: "(1) Where by this Act an offender is made liable to imprisonment for life or to imprisonment for a fixed term, the Court may nevertheless pass a sentence of imprisonment of less duration". (at p404)

8. That being the relevant legislation, the question arises whether the Death Penalty Abolition Act has made mandatory the imposition of the sentence of imprisonment for life or whether, by virtue of s. 442 (1) as it now stands, the trial judge has a discretion to impose a sentence of less duration. It doubtless has to be assumed that a sentence of imprisonment for a term of years is of less duration than a sentence of imprisonment for life, though obviously this is not necessarily so. The sentence for a term of years carries with it at least the possibility of the term being concluded during the relevant lifetime. (at p405)

9. For s. 442 (1) to have application and the judge to have the relevant discretion, the offender must have been made liable to imprisonment "by this Act". "This Act" obviously, prima facie, refers to the Crimes Act as made applicable to the Territory. The question before us is whether a person found guilty of a charge of murder by a Territory jury is liable to imprisonment by the Crimes Act or by the Death Penalty Abolition Act. On the one hand the contention is that "this Act" referred to in s. 442 is the Crimes Act as amended by the relevant Ordinances and as affected (to use a neutral expression) by, inter alia, the Death Penalty Abolition Act. The opposing contention put to us was that the prisoner is made liable to imprisonment for life by virtue of s. 5 of the Death Penalty Abolition Act, which Act is not covered by the expression "this Act" in s. 442, it being a separate and independent piece of legislation. (at p405)

10. Counsel for the Crown submitted that the penalty of imprisonment for life was mandatory. His primary argument was that the penalty for murder now has to be ascertained by reference to the Death Penalty Abolition Act, and that there is no justification for reading that Act as one with the Crimes Act. Such justification would, in his submission, only exist if the Death Penalty Abolition Act expressly in terms amended the Crimes Act (in which case s. 15 of the Acts Interpretation Act 1901 would apply) or expressly provided that it was to be read as one with the Crimes Act or as incorporated with the Crimes Act. (at p405)

11. In our view there can be justification for reading an Act as one with an earlier Act (and certainly for its impact on the earlier Act being included in the expression "this Act") even when neither of those justifying formulae exist. Certainly if by its terms the later Act expressly amends the earlier Act, s. 15 of the Acts Interpretation Act can be called in aid, though we have doubt whether the assistance it renders is as great as counsel for the Crown contends. By its terms s. 15 merely directs its attention to the construing of the amending Act (in this case the Death Penalty Abolition Act) and directs that it is to be construed with and as part of the amended Act unless the contrary intention appears. Such a limitation on the interpretation of s. 15 appears to be consistent with what was said by Smith J. in Georgoussis v. Medical Board of Victoria (1). His Honour there was of course considering a provision along the lines of s. 15 expressly inserted in the later Act, but his comments would appear equally applicable to s. 15 itself. Furthermore we are here considering the construction not of the amending Act but of the amended Act, assuming it be accepted that there has been an "amendment" of the Crimes Act by the Death Penalty Abolition Act (cf. Mathieson v. Burton (2)). (at p406)

12. Likewise, if the legislature had expressly used the formula of directing that the two Acts were to be read as one, counsel for the Crown concedes that he probably would not be making his submissions, and we see no reason to disagree with this concession. (at p406)

13. In our view the Death Penalty Abolition Act can be read as one with the Crimes Act, to the extent at least of being incorporated in the expression "this Act" in the latter Act even in the absence of either of the two justifying formulae. In any event, the same consequence would seem to ensue even though one Act does not expressly (i.e. in terms) amend another Act, or there is no express use of the "incorporating" formula. We doubt if the use of the term "amend" is essential before one can call in aid the provisions of s. 15, particularly as the question whether an amendment or a repeal has been effected is determined on substance rather than form. Furthermore, the word "amend" seems wide enough to include "alteration" (see s. 14 of the Acts Interpretation Act) or modification as used in Mathieson v. Burton (3). After the Death Penalty Abolition Act, s. 19 of the Crimes Act no longer operated in its original form; it continued to operate but its operation was changed. As to the second justifying formula, one can concede the necessity for express insertion if the later Act is capable of independent and separate effect. Different considerations apply if the later Act has no separate effect but is dependent for its application upon the presence of some existing law; a fortiori if its force and effect is limited to directing that some existing law is to be construed in a particular manner. (at p406)

14. In the circumstances therefore we do not believe we should attach much significance to the absence of both of what we have called the justifying formulae. Rather we feel we should direct our attention to the question whether there is any justification for excluding from the expression "this Act" in s. 442 the direction by the Death Penalty Abolition Act that some provisions of the Crimes Act are to be construed and applied in a particular way. For this purpose it seems proper to have regard both to the essential nature and effect of the Death Penalty Abolition Act and to the fact that the expression "this Act" must be construed to include reference at least to some legislation enacted since 1909. Moreover it is worthy of note that the expression "this Act" was included in an amending provision enacted subsequent to the Death Penalty Abolition Act. (at p407)

15. It is our opinion that the expression "this Act" in the 1974 amendment to s. 442 refers to the Crimes Act in the form and with the effect that it has as at the date of the amendment. The form that it has at that date is not the same as it had in 1909 when it was made applicable to the Territory. Its then form has been varied in consequence of the making of a number of Ordinances in the intervening years, which Ordinances have had the effect of amending, repealing and modifying its provisions. Furthermore, its effect is qualified by the fact that, except in so far as a contrary intention appears, it is to be interpreted in accordance with the Acts Interpretation Act, which latter Act itself has been amended from time to time since 1909. The Death Penalty Abolition Act has a somewhat similar operation to that of the Acts Interpretation Act, any difference being primarily a matter of degree. The concept of it, or at least s. 5, as a "dictionary provision" was introduced in argument and seems apt to describe its operation. It has no independent effect but only directs that other legislation is in consequence of its operation to be construed differently and to have a different effect. But for the fact that it necessarily had to have application to a variety of laws, both Commonwealth and Territory, it doubtless might have been drafted in the rather more common form of repeal or express amendment. But the variety of situations to which it was to have application necessitated, and is the explanation for, the fact that it has a different and seemingly novel form. It certainly has not the usual form of amending legislation though it has an effect of amending the earlier legislation. Under s. 4 it abolishes the death penalty, which provision has no force or effect except to the extent that under some existing law the penalty of death is currently the prescribed punishment. Similarly under s. 5 the condition precedent to its application is that there is some law of the Commonwealth or a Territory providing the punishment of death. The requirement that the death provision shall be "read, construed and applied" tends to emphasize that the draftsman desired to give the section the widest possible application. It is intended to ensure that for all purposes punishment of death should be construed as meaning imprisonment for life. (at p407)

16. All of these considerations confirm the view that, in the relevant respect, the Death Penalty Abolition Act has no separate or independent effect. Its effect is dependent upon the existence of laws, which laws it purports to vary by directing that certain provisions be construed on the basis that a penalty different from that actually provided is the appropriate penalty. In these circumstances it would be difficult, if not impossible, to construe the Death Penalty Abolition Act otherwise than as one with each of the Acts which provide the death penalty. In the Territory, the penalty of imprisonment for life is imposed in consequence of a conviction under s. 18 of the Crimes Act of the crime of murder, which Act imposes by s. 19 the punishment of death and which punishment is by virtue of the Death Penalty Abolition Act to be read as imprisonment for life. It is imposed by the Crimes Act construed in the manner directed by the Death Penalty Abolition Act. In this way the Death Penalty Abolition Act takes its place along with the amending Ordinances and the Acts Interpretation Act as making up the totality of the Crimes Act as at the relevant time and as authorizing its force and effect. It follows that as the expression "this Act" includes the requirement of the Death Penalty Abolition Act that punishment of death is to be read as imprisonment for life, the prisoner is "an offender made liable" by the Crimes Act understood in this extended sense to imprisonment for life, and thus the court is empowered to pass a sentence of less duration. (at p408)

17. The conclusion at which we arrive is based upon our interpretation of the legislation. We express no view on policy which is a matter for the legislature. In the result, our answer to the question reserved is: No. (at p408)

ORDER

Order accordingly.