R v YZ

[1999] NSWCCA 48

CITATION:	Regina v "YZ" [1999] NSWCCA 48
FILE NUMBER(S):	CCA 60261/97
HEARING DATE(S):	08/09/98 18/08/98
JUDGMENT DATE:	25 March 1999
PARTIES :	Regina "YZ"
JUDGMENT OF:	Beazley JA at 1; Sully J at 23; Dunford J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0699
LOWER COURT JUDICIAL OFFICER:	Blanch CJ DC

COUNSEL:	P S Hastings QC/ S McNaughton (Commonwealth DPP) P Bodor QC/ J Doris (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions Neil J O'Connor & Associates (Respondent)
CATCHWORDS:	Criminal Law; Appeal; Reduced Sentence; "Without reasonable excuse"; Statutory Interpretation; Administrative Law; Judicial Review; Jurisdictional Fact; Collateral Challenge
ACTS CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Crimes Act 1914 (Cth) Acts Interpretation Act 1901 (Cth) Judiciary Act 1903 (Cth) Customs Act 1901 (Cth)
CASES CITED:	Parsons (1992) 74 A Crim R 172 Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 Waterford v Commonwealth (1987) 163 CLR 54 Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 Webster v The Breadcarters Union of NSW (1930) 30 SR(NSW) 267 Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352
DECISION:	Preliminary Ruling Given

IN THE COURT OF

CRIMINAL APPEAL

CCA 60261/97

BEAZLEY JA
SULLY J
DUNFORD J

Thursday, 25 March 1999

REGINA v “YZ”

JUDGMENT

1. BEAZLEY JA: This is an appeal against sentence brought by the Commonwealth Director of Public Prosecutions (the DPP) under s 21E of the Crimes Act 1914 (Cth). That section enables the DPP to appeal against the adequacy of a reduced sentence where a convicted person, without reasonable excuse, has failed to comply with an undertaking to provide co-operation to law enforcement agencies. A preliminary question has arisen, however, as to whether the respondent can challenge, on the appeal, the question whether his failure to co-operate with his undertaking was “without reasonable excuse”. This judgment deals with that preliminary question.

2. Before turning to the preliminary question, one matter should be recorded. At the commencement of the hearing, the respondent applied for the proceedings to be heard in closed court. An order to that effect was made. The matter was not concluded on that day and was adjourned to permit further argument on the preliminary issue, at which time the Court vacated the order for a closed court. On the adjourned hearing, the Court declined to make an order for a closed court as the only matter with which the Court was concerned at that stage was the preliminary issue. However, the Court ordered that the respondent be referred to by the pseudonym “YZ”. Subject to any different order which might be made, that pseudonym should be used in all references to this matter. The Court’s refusal to make an order for a closed court on the adjourned hearing date does not prevent either party from making such an application in the future.

Section 21E
3. Section 21E(1) allows a court, when sentencing in respect of a Federal offence, to reduce the sentence which might otherwise be imposed, where the offender has undertaken to co-operate with law enforcement agencies. In imposing the reduced sentence, the sentencing judge must specify the sentence which would have been imposed but for the reduction.

4. Section 21E(2) permits the DPP to appeal against the reduced sentence in circumstances where the offender without reasonable excuse, fails to co-operate with law enforcement agencies according to the undertaking referred to in subs 1 and the DPP is of the opinion that it is in the interests of the administration of justice to appeal.

5. The Court’s powers on appeal are specified by subsection 3. If there is a total failure to comply with the undertaking, the Court, on appeal, must impose the sentence which the sentencing judge indicated would have been imposed but for the undertaking. If there is a partial failure to provide assistance in accordance with the undertaking the Court has a discretion as to the sentence to be imposed, not exceeding the sentence which the sentencing judge would have imposed but for the undertaking. The DPP contends this was a case of total failure to comply with the undertaking.
The Respondent’s Sentence and Subsequent Events
6. The respondent was a principal in the importation of a large quantity of cannabis resin into Australia. He pleaded guilty to a charge under s 233B(1)(cb) of the Customs Act 1901 (Cth) of conspiring to import a commercial quantity of cannabis resin and was sentenced to imprisonment for a period of 10 years and 4 months, with a non-parole period of 7 ½ years, commencing on 5 August 1994. Prior to sentence, the respondent assisted the authorities in relation to various matters and during the course of the sentence proceedings he signed and tendered an undertaking in accordance with s 21E(1). By that undertaking, he undertook to give evidence for the Crown in criminal proceedings against the person nominated in the undertaking. It is apparent from the terms of the undertaking that the nominated person was a co-offender. As a result of giving the undertaking and in accordance with s 21E(1) of the Crimes Act, the sentencing judge reduced the non-parole period by twelve months and the head sentence by one year and four months, thereby reducing the sentence to 9 years imprisonment with a non-parole period of 6 ½ years.

7. Prior to the commencement of the trial of the nominated person, the respondent was called by the Crown to give evidence on a voir dire. This course was necessitated by the respondent’s refusal to provide a statement to the police or to participate in a conference with the Crown. The Crown formed the view that it should not call the respondent as a witness without knowledge of the evidence he would give. Prior to being affirmed to give evidence the respondent made a statement in the court refusing:
“… to give any evidence for the reasons known to my instructing solicitor and the Court of Appeal and Mr Terracini.”

8. Mr Terracini was the respondent’s counsel.

9. The respondent was then affirmed and repeated:
“I refuse to give evidence for the reasons I just mentioned. My instructing solicitor knows the reasons and the Court of Appeal knows the reasons, and so does Mr Terracini.”

10. The respondent did not further co-operate and was not called as a witness in the trial.

11. On 26 May 1997 the DPP gave notice to the Registrar of the Court of Criminal Appeal that he desired to appeal against the sentence under s 21E(2), due to the respondent’s failure, without reasonable excuse, to co-operate in accordance with his undertaking.

The Preliminary Issue
12. The respondent seeks to challenge that his failure to co-operate was “without reasonable excuse”. The DPP disputes this Court’s right to determine that issue. He submitted that the DPP’s decision to appeal was a decision “made … under an enactment” within the meaning of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and contended that the question of “reasonable excuse” is one solely for the determination of the DPP, as part of the decision making process involved in deciding whether to bring an appeal. It followed, according to this submission, that any challenge to the DPP’s decision to appeal must be brought under the ADJR Act and that unless the decision to appeal was successfully challenged under that Act, the Court was bound to apply the provisions of s 21E(3) and substitute the original unreduced sentence.

13. The issue raised by the preliminary question appears to be without direct authority, at least so far as s 21E is concerned. In Parsons (1992) 74 A Crim R 172 the respondent sought to raise the same defence to an appeal under s 21E. However, it is not apparent from the judgment that the issue raised here was taken in that case. Rather, the Court dealt with the matter on the facts and rejected the defence.

The ADJR Act
14. The ADJR Act provides a scheme for administrative review by the Federal Court of Australia of federal decisions “… of an administrative character made, … under [a federal] enactment”: see ADJR Act, s 3(1). The grounds of review are specified in s 5(1). They include that the decision was not authorised by the enactment in pursuance of which it was purported to be made: subs 5(1)(d); that the decision involved an error of law, whether or not the error appears on the record of the decision: subs 5(1)(f); and that there was no evidence or other material to justify the making of the decision: subs 5(1)(h). The ground under subs 5(1)(h) is not taken to be made out unless, inter alia, the decision maker based the decision on the existence of a particular fact and that fact did not exist: see subs 5(3)(b). In administrative law terms such a fact is categorised as a jurisdictional fact. In Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 the New South Wales Court of Appeal extensively reviewed what constitutes a jurisdictional fact. Spigelman CJ said at 14-15:
“The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex Parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (‘objectivity’) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (‘essentiality’). Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28 at [91]-[93]).

‘Objectivity’ and ‘essentiality’ are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of ‘essentiality’ will often suggest ‘objectivity’.”

15. And further at 17:
“The authorities suggest that an important, and usually determinative, indication of Parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that one statutory regime contains the same factual reference in both kinds of provisions.”

16. In the present case, the decision made was a decision to appeal against the adequacy of the sentence under s 21E(2). That decision could only be made if a certain state of affairs existed, relevantly, if the respondent “failed to co-operate without reasonable excuse”. In other words, the existence of that state of affairs was a pre-condition to the making of a decision to appeal and as such was, in my opinion, a jurisdictional fact, but nonetheless, a fact.

17. The reviewability of fact finding in administrative law is extremely limited. It has been said that under general principles of administrative law “there is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. There is some amelioration of that position in cases of administrative review brought under the ADJR Act. Under that Act, it is the decision made under an enactment which is reviewable, and not the facts relevant to the making of the decision: Minister for Immigration v Teo (1995) 57 FCR 194 at 199ff. However, facts may be reviewed in limited circumstances. Relevantly for present purposes, if, on review, it was determined that the necessary jurisdictional fact of failure to co-operate without reasonable excuse did not exist - in other words, that there was reasonable excuse - the DPP’s decision to appeal against the adequacy of sentence under s 21E, would be vitiated: see ss 5(1)(h) and (3)(b).

18. None of this seemed to be in dispute before this Court, although it was not fully argued. Rather, senior counsel for the respondent asserted that the jurisdiction of this Court to hear the appeal depended upon the respondent having failed to “co-operate in accordance with his undertaking without reasonable excuse” and that this Court should, therefore, determine that issue. Senior counsel for the DPP contended that that issue was one for the Federal Court. Unfortunately these polarised contentions fail to grapple with the matter in issue. Whilst the decision of the DPP to appeal under s 21E may be subject to challenge under the ADJR Act and the question of reasonable excuse may put in issue in the way I have indicated, it remains to be determined whether that issue can be raised and determined by this Court. That raises the question of whether the jurisdiction conferred on the Federal Court to review administrative decisions made under a federal enactment excludes any other challenge to an administrative decision. Put another way, can there be a collateral challenge in this Court to the DPP’s decision to appeal?

Collateral Challenge
19. The question of the availability of collateral challenge was considered by the Full Court of the Federal Court in Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582. In Aerolineas, the question was whether the respondent airlines could bring common law proceedings to recover monies paid pursuant to an administrative determination which the respondents contended was invalid, without having first brought proceedings under the ADJR Act challenging the validity of the determination. Lehane J (Beaumont and Whitlam JJ agreeing) held that such proceedings could be brought at common law and there was nothing in the provisions of the ADJR Act which prevented that course. His Honour (at 597) agreed with my conclusion at first instance that “the principle of collateral attack … is well established in English law, available … for both attack and defence”, although it is not clear as to what the precise limits of collateral attack are. However, it seems clear that collateral challenge is available for jurisdictional error: see Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 per Beazley J.

20. I have already expressed the opinion that the question whether a person has, without reasonable excuse, failed to co-operate in accordance with an undertaking given under s 21E, is a jurisdictional fact. Accordingly, I am of the opinion that that question can be raised on the appeal brought by the DPP in this Court under s 21E.

21. Before concluding on this issue I should make reference to s 9 of the ADJR Act, which was not specifically referred to in argument. That section limits the right of a State court to review federal administrative decisions. However, review for the purposes of the section is limited by subs 9(2) to mean review by way of the grant of an injunction, the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or order of the same nature as such a writ, or the making of a declaratory order. In my opinion, given the definition of “review” in s 9(2), s 9 does not exclude collateral challenge of the kind sought to be made here.

22. It follows from what I have said that the respondent is entitled to contend in these proceedings that he had “reasonable excuse” for failing to co-operate in accordance with his undertaking.
23 SULLY and DUNFORD JJ: We have had the advantage of reading in draft the judgment of Beazley JA. We agree with the conclusion to which her Honour has come in connection with the preliminary question now to be decided, but we reach that conclusion by a path of reasoning somewhat different from that followed by her Honour. For the purpose of explaining our reasoning, we adopt gratefully her Honour’s explanation of the nature of the preliminary question now to be decided; and of the context in which that preliminary question so arises.
24 We do not see the decision of the preliminary question as involving at all, let alone as turning decisively upon, the applicability of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It seems to us, rather, that the decision of the preliminary question in the present case turns upon the construction, according to received principles of statutory interpretation, of section 21E of the Crimes Act 1914 (Cth) [“the Act”].
25 In that connection, the correct starting point is, in our opinion, the proposition that section 21E of the Act, in so far as it touches upon the preliminary question now to be decided, is ambiguous in its terms. It is possible to read section 21E(2)(c) as though it were intended to read:
“After sentence, the offender, without the offender’s having, in the opinion of the Director of Public Prosecutions, reasonable excuse, does not co-operate in accordance with the undertaking.”
26 Alternatively, it is possible to read section 21E(3) as if the words “without reasonable excuse” are to be taken as having been intended to qualify the words “has failed” in both of sub-sections (3)(a) and (3)(b).
27 Given such ambiguity in the drafting of section 21E, there come into operation, in our opinion and relevantly for present purposes, three well established propositions.
28 The first proposition, is that the Court must comply with the requirements of section 15AA of the Acts Interpretation Act 1901 (Cth). That section requires that:
“……….. a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
29 It seems to us that the purpose or object underlying section 21E is, notwithstanding the manifest deficiencies in the drafting of the section, clear. The purpose or object is that an offender who fails to co-operate in accordance with a relevant promise in that regard, is not to have his sentence of imprisonment increased unless, in fact, the failure to co-operate is “without reasonable excuse”. We consider that the legislative object or purpose, as thus conceptualised, is better served by a construction of section 21E that would leave in this Court a jurisdiction, a power and a duty, independent of any power or duty attaching under section 21E to the Director of Public Prosecutions, to decide whether, as a matter of fact, there has been a relevant failure to co-operate “without reasonable excuse”.
30 The second proposition, is stated conveniently, and as follows, in the judgment of Long Innes J in Webster & ors v The Breadcarters’ Union of NSW and ors. (1930) 30 SR(NSW) 267 at 275:
“It is well established that, as Lord Campbell said in Balfour v Malcolm (8 Cl. & F. 485, 500), “the jurisdiction of the Supreme Courts can only be taken away by positive and clear enactments in an Act of Parliament”: and Pollock B. said in Oram v Brearey (2 Ex. D 346, 348): “No rule is better understood than that the jurisdiction of a superior Court is not to be ousted unless by express language in, or obvious inference from, some Act of Parliament”. Where, however, statutory provisions are made in peremptory form, directing that particular classes of differences are to be determined by arbitration, or by a specified tribunal, the necessary implication arises, and the jurisdiction of the Court in regard to such differences is ousted; instances of such peremptory directions are to be found in Balfour v Malcolm (8 Cl. & F. 485); Joseph Crosfield & Sons Ltd v Manchester Ship Canal Co. ([1905] A.C 421); Norwich Corporation v Norwich Electric Tramways Co. Ltd. ([1906] 2 K.B. 119); Taylor v National Amalgamated Approved Society ([1914] 2 K.B. 352); and West Suffolk County Council v Olorenshaw ([1918] 2 K.B. 687).”
31 In our opinion, the better view of the language of section 21E of the Act is that read fairly overall, it does not manifest, either by express language or by obvious inference, a legislative intent that the Court which is to make the judgment which will result in the offender’s serving an increased term of imprisonment, should be prevented from satisfying itself that the offender’s relevant failure to co-operate, be it entire or partial, was in fact a failure “without reasonable excuse”.
32 The third proposition, is stated succinctly by Kirby P delivering the judgment of the Court of Appeal of this Court in Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352, at 361. His Honour says that where there is uncertainty in the meaning and operation of a statutory provision having to do with the liberty of the subject, “……… it is appropriate to adopt that construction which enhances the liberty of the subject”.
33 In our opinion such an approach to the construction of section 21E of the Act supports a conclusion that the Court which is called upon to deal with a section 21E appeal, is empowered to decide for itself, and has the duty and the responsibility of deciding for itself, whether or not the particular offender’s failure to co-operate was a failure “without reasonable excuse” in fact.
34 We also consider that there is another process of statutory construction which leads to the same result by reading s 21E (2) and (3) together as complementary to each other. Those subsections are as follows:
(2) Where:
(a) a federal sentence is imposed or a federal non-parole period is fixed; and
(b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and
(c) after sentence, the offender, without reasonable excuse, does not
co-operate in accordance with the undertaking;
the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.
(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal:
(a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and
(b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non- parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.
35 It can be seen that subs (2) sets out the ground on which the appeal under the section may be instituted whilst subs (3) sets out the circumstances in which the court hearing the appeal may exercise its powers i.e. its jurisdiction, and what those powers are.
36 The single ground on which the appeal may be instituted is that:
(i) a federal sentence has been imposed
(ii) the sentence has been reduced under subs (1) AND
(iii) the offender has, without reasonable excuse, not co-operated with the undertaking.
If these three matters are satisfied, subject to two further considerations, the Director of Public Prosecutions (the Director) may appeal, those two further conditions being that the offender remains under sentence and the Director is of the opinion that it is in the interests of the administration of justice to do so. But the ground on which he may appeal is that the offender has had his sentence reduced because of his undertaking to co-operate but, without reasonable excuse, has not done so.
37 Subs (3) sets out two situations which may arise on the hearing of the appeal. The court may be "satisfied that the person has failed entirely to co-operate with the undertaking", in which case it proceeds in accordance with para (a); or it may be "satisfied that the person has failed in part to co-operate in accordance with the undertaking", in which case it proceeds in accordance with para (b). There is obviously a third alternative, namely that it is not satisfied that there has been a failure either entirely or in part to co-operate in accordance with the undertaking, in which case it has no power except to dismiss the Director's appeal.
38 However, under subs (3)(a) or (b) the relevant issue is whether the offender has "failed" (entirely or in part) to co-operate. The meaning of the word "failed" depends on the context in which it is found; in some contexts it means simply the omission to do the thing in question, irrespective of any reason which may have existed for not doing it, while in other cases it means an omission to do the thing by reason of some carelessness or delinquency: Ingram v Ingram (1938) 38 SR NSW 407 at 410; or it may import an omission due to some element of fault: R v Skurray (1967) 86 WN (Pt 1) 1 at 7. See also Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 257.
39 As a "failure to co-operate" renders the offender liable to a longer sentence of imprisonment, we would construe "failed" in subs (3) as an omission involving an element of fault; namely an omission without reasonable excuse.
40 The phrase "failed . . . to co-operate" is not used in subs 2(c), but it is the test posed in subs (3). This is, in our view, a further indication that it is intended to encompass both elements of subs (2)(c), that is the non co-operation and the lack of reasonable excuse; and it is for the court hearing the appeal in considering whether the offender has "failed" to co-operate to determine, not only whether he or she has not co-operated in accordance with the undertaking, but also whether he or she has reasonable excuse for not doing so, and the court is not bound by the opinion held by the Director on the question of reasonable excuse.
41 Senior Counsel for the Director placed reliance on the words in subs (2) ". . . if the Director . . . is of the opinion that it is in the interests of the administration of justice to do so". In our opinion, the natural and ordinary meaning of those words in their context is that if the Director believes that the matters in paras (a), (b) and (c) of subs (2) exist, he may appeal, but is not bound to do so. There is a discretion conferred on the Director, i.e. whether to appeal or not, but the criterion for the exercise of that discretion is whether he is of the opinion that it is in the interests of the administration of justice to do so. It may be that the exercise of such discretion is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), but semble only by reference to the criterion referred to and the scope and object of the discretion conferred: Minister for Aboriginal Affairs v Peko - Wallsend Ltd (1986) 162 CLR 24 at 39-42.
42 There may be a number of reasons why the Director may determine it is not in the interests of the administration of justice to appeal under the section, for example, the serious or terminal illness of the offender who has not co-operated, or the belief that the publicity associated with an appeal may place other informers in grave danger, and there may be a number of other possible reasons why he may consider it not in the interests of the administration of justice to appeal; but the conferring of that discretion in no way suggests that the court is deprived of the power to enquire into the existence of reasonable excuse for the offender not co-operating in accordance with the relevant undertaking.
43 The only other case where this section appears to have been considered is R v Parsons (1992) 74 A Crim R 172 at 177 where the Western Australian Court of Criminal Appeal said that the bringing of an appeal by the Director is conditioned on s 21E(2) which requires that officer "to consider whether the failure to co-operate was without reasonable excuse" but expressly refrained from deciding whether the court hearing the appeal was bound by the view of the Director, which is the issue we are now considering.
44 We are therefore satisfied that on the proper construction of s 21E, although the Director, to justify the institution of the appeal, must form an opinion that the non co-operation has been without reasonable excuse, it is for the court hearing the appeal, as a pre-condition of the exercise of its powers under subs (3), to make its own determination whether the offender has reasonable excuse for not co-operating in accordance with an undertaking given by him or her, and we agree that the preliminary question should be decided in the manner proposed by Beazley JA.
45 We wish to add that no argument was addressed to us as to whether the determination of the question of lack of reasonable excuse under the section, which can have the effect of increasing the term of imprisonment to be served, constitutes the exercise of the judicial power of the Commonwealth: cf Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27. If it does, the power to determine the issue can only be conferred on a court: Constitution s 71, and not on the Director. As we have said, no argument was directed to us along these lines and no notices were given pursuant to the Judiciary Act 1903 (Cth), s 78B.

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