Rivers v Rivers

[2003] HCATrans 295

[2003] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2003

B e t w e e n -

MA GINA ORLANE RIVERS

Applicant

and

STEN DONALD RIVERS

First Respondent

SARAH LEAH RIVERS

Second Respondent

CLAUDINE RIVERS

Third Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 11.18 AM

Copyright in the High Court of Australia

__________________

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friends, MR H.M. HEUZENROEDER and MR A.L. TOKLEY, for the applicant.  (instructed by Sykes Bidstrup)

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR M. SELLEY, for the respondent.  (instructed by Iles Selley Lawyers)

GLEESON CJ:   There are certificates from the Deputy Registrar to the effect that she has been informed by the solicitors for the second respondent that the second respondent does not seek to make any submissions and she has been informed by the solicitors for the third respondent that the third respondent does not seek to make any submissions.  Yes, Mr Wells.

MR WELLS:   If the Court pleases, the applicant says that this is a case which is a suitable vehicle for a consideration or reconsideration of Helton v Allen.

GLEESON CJ:   Was the decision of the Full Court interlocutory?

MR WELLS:   Your Honour, the strict position may very well be that as it is a preliminary issue, although by way of case stated, it would be interlocutory, but of course what was raised there was an issue which, if determined in our favour, would entitle us to judgment.

GLEESON CJ:   Yes, if it had gone the other way it would have been final, but the way it went it was interlocutory, was it not?

MR WELLS:   That is right, your Honour.

GLEESON CJ:   Indeed, at the trial, these issues that were determined may never arise.

MR WELLS:   Your Honour, two things could be said about that.  It is true that if at the trial one were to go in to the whole question of the circumstances that resulted in death and if it were determined even on the balance of probabilities, using that as the standard of proof, that it were not so proved, your Honour would be right and we entirely accept that.  There were, however, very good reasons for isolating and identifying this as an issue which does fall for determination and should be determined ahead of the trial.  It may not be useful to go into those reasons because I accept what your Honour says.

GLEESON CJ:   If you get leave, you are going to invite the Court to overrule its decision in Helton v Allen, are you not?

MR WELLS:   Yes, that is right.

GLEESON CJ:   Do you not think we should wait until we are satisfied that we have a case in which that question actually arises for decision before we overrule an earlier decision of the Court?

MR WELLS:   Your Honour, I have to say that of course that would be ideal, but this is a case, as was demonstrated when the matter came before Justice Bleby, where there are very serious circumstances which surround the way in which this trial could be conducted.  My client is very ill and the result of that is that when we come to trial there will be obvious difficulties for her in being able to conduct the trial.  It was one of the reasons of course why Justice Bleby saw this as being a very important way of determining what would ultimately be decisive of the case, if decided our way.

I entirely accept that ideally one would have a trial and if the matter were then still left for determination then the matter could make its way, if the court so felt, to this Court.  The practicalities are, however, very much to the contrary.

GLEESON CJ:   But I thought if your client is ill, you would want a trial sooner rather than later.

MR WELLS:   Your Honour, from the point of view of her illness, it will not matter.  Her illness arises from the very circumstances which are the subject matter of the trial and the conduct of the trial will, whenever it happens, only exacerbate that condition.

CALLINAN J:   Is there evidence of that, Mr Wells?

MR WELLS:   Yes, there was, your Honour.

CALLINAN J:   No, I mean before us.

MR WELLS:   Your Honour, only inferentially through the reasons of Justice Bleby, and that appears in the application book.  On page 9 of the application book, your Honour, one of the considerations identified by his Honour as the last of the considerations that he took into account:

on the evidence available to me for the purposes of this application, the first defendant’s present state of psychiatric health is extremely frail.  She is likely to suffer significant trauma and mental instability in reliving the death of her husband.  If there is a reasonable possibility of a trial on the facts being averted, there are strong humanitarian considerations why that course should be followed.

The evidence before his Honour was medical evidence.

GLEESON CJ:   But you can only avert a trial by concluding that she is bound to lose, can you not?

MR WELLS:   You can avert a trial, your Honour, if we win on this point.

GLEESON CJ:   That is, if you get a court to hold as a matter of law that she is bound to lose.

MR WELLS:   I might take a moment to consider that, your Honour.  The position is this – and it may be that we are talking to the same end, but in order for us to make good the point that we wish to make, we want to contend on one ground or another – there are three that I would raise before this Court – that the acquittal after criminal inquest by verdict of the jury is decisive of the issue for the purposes of these proceedings of whether she committed an unlawful homicide.

GLEESON CJ:   I follow.

MR WELLS:   At the moment we are faced with one principle that says the acquittal is not even admissible evidence at trial, which is a matter no doubt that if the matter were able to get to trial in a suitable form would be the subject of challenge on other grounds too.  But, nevertheless, one of the principles for which Helton v Allen stands is that the acquittal is not itself admissible evidence. 

The three matters that we contend involve a consideration of Helton v Allen are these.  First of all, that the rule of public policy known as the forfeiture rule has been displaced by the Criminal Assets Confiscation Act and by the Administration and Probate Act which deals with distribution on intestacy.

GLEESON CJ:   If you got up on that point, it would not be necessary to say that Helton v Allen was wrong.

MR WELLS:   No, your Honour, it would be necessary to distinguish Helton v Allen.  That would be a simple matter.  The second ground is that it should be held that the forfeiture rule, as it is called, does not apply where there has been an acquittal by verdict of a jury.  That would require Helton v Allen to be overruled.  The third ground, which is a development of the last, is that it would be an abuse of process to seek or defend by action the penalty of a forfeiture despite a verdict of acquittal.  That would require a conclusion that Helton v Allen should not be followed, as distinct from being overruled.

Those are three matters that we would seek to bring before the Court on this application and if I can attempt to develop them shortly.  If your Honours would be good enough to take up the application book and turn to paragraph 30 of the decision of the Full Court which is to be found on page 23, we identify in relation to the displacement of the Confiscation Act argument paragraphs 28, 29 and 30 as being the point of reasoning at which their Honours in the Full Court erred, and if I can just pick out some key words.  In paragraph 28, the proposition was put that:

the provisions of the Confiscation Act are far removed from the operation of the general law forfeiture rule.

In paragraph 29 the proposition was put that:

the nature and purpose of the legislation is wider than this element of its policy.

Although it seems to have been accepted that the forfeiture rule policy falls within it.

GLEESON CJ:   Is this some argument based on implication from the Act?

MR WELLS:   It is, your Honour.  There is nothing in the Act which expressly says the forfeiture rule does not apply.  It is to be contrasted with some, or I think at least one interstate provision, where on the contrary the confiscation legislation says explicitly that no law providing for forfeiture is to be regarded as repealed by the confiscation legislation.  That leaves, of course, an interpretation point.

GLEESON CJ:   Is the word “forfeiture” defined in the Confiscation Act?

MR WELLS:   Yes, your Honour.

GLEESON CJ:   Forfeiture to whom?

MR WELLS:   Your Honour, the forfeiture is to the State.

GLEESON CJ:   Right.  We are not talking about forfeiture to the State when we are talking about the forfeiture rule in Helton v Allen, are we?

MR WELLS:   No, we are not, your Honour.  The way we would put it is that that aspect of the forfeiture or confiscation is simply dealing with, as it were, the destiny of the confiscated property, the first step ‑ ‑ ‑

GLEESON CJ:   When you say simply dealing with that, it is a pretty important matter for Ms Shaw’s client, is it not?

MR WELLS:   It is very important for my friend’s client.

GLEESON CJ:   Are you suggesting that the consequence of this is that if it were found that your client was criminally responsible for the death of the victim, then what she would otherwise have inherited goes to the State?

MR WELLS:   No, your Honour.  Our contention is that because the Confiscation Act – I hope your Honours will pardon me if I borrow a phrase for the moment ‑ occupies the field to the exclusion of the forfeiture rule, that in the circumstances in this case, there would be no forfeiture at all because the provisions of the Confiscation Act provide that there can only be an order for forfeiture to the Criminal Injuries Compensation Fund upon a conviction, but not otherwise.  I should qualify that.  If the alleged offender is dead or not amendable to justice then the DPP, representing the interest of the State, can apply for a forfeiture order on a civil proceeding but must prove the commission of the offence beyond reasonable doubt.

GLEESON CJ:   So the argument is a kind of “covering the field” argument?

MR WELLS:   That is right.

GLEESON CJ:   By implication the confiscation legislation provides that unless the occasion for forfeiture to the State pursuant to that legislation exists, there can be no other kind of forfeiture?

MR WELLS:   By reason of the commission of an offence and in relation to property which the offender benefits by, by reason of the commission of the offence, yes, your Honour.  Can I add in this way, the common law or general law rule on forfeiture is a rule of public policy.  Our contention is that in this State the public policy in relation to forfeiture with respect to the benefits received from the commission of an offence has now been declared by the Parliament and we would adopt, as the Victorian Full Court adopted in the case of Fire & All Risk Insurance v Powell, the words that fell from Justice Cardozo in Messersmith’s Case which was to this effect, that the public policy of this State when the legislature acts is what the legislature says it shall be.

GLEESON CJ:   Is there anything in the parliamentary history, the explanatory memorandum, that suggests that Parliament adverted to the consequences its legislation was going to have for people in the position of Ms Shaw’s client?

MR WELLS:   No, there is not, your Honour.  Indeed, one can well understand that the motivation that lay behind the Confiscation Act was directed towards the control of organised crime, and we do not suggest otherwise.  What we say is that the terms and structure of the Act require the conclusion that the rule of public policy developed by the judges to fill the gap left by the repeal of the attainder rule at common law is nevertheless covered by it.

GLEESON CJ:   You mean Ms Shaw’s client has been hit by a by‑blow, this was accidental?

MR WELLS:   Your Honour, we would not contend in that sense that there is anything accidental at all about what the Parliament has done.  What we contend is that Parliament has laid down what the policy in this State should be in relation to the circumstances in which an offender will be deprived of the benefits of the offence.  That is what the Parliament has done and we would contend there is no by‑blow involved in that at all.  It is a direct effect of the language of the section itself and there is a direct clash between the judge‑made rule of public policy, which was initially designed to fill a gap, and the declared policy of the Parliament.

The clash arises in this way.  Under the rule of public policy fashioned by the judges there is no question but that the relevant property will vest in the offender.  The rule which lies behind the forfeiture rule is actually two rules.  One which says, as Helton v Allen has acknowledged, that albeit the property vests in the offender, the court will not allow by enforcement, that is, not lend its assistance, to the enjoyment of it.  The second part of the rule is that which the court then accepts as its responsibility for determining the destiny of the property which the offender cannot enjoy, albeit it has vested in the offender. 

Once the property has vested in the offender, then it comes within the jurisdiction of the Confiscation Act because it is property of the offender which is a benefit of a crime or which comes within the definition of “proceeds of crime”, having been derived directly or indirectly from the commission of a crime.

CALLINAN J:   Mr Wells, can I take you back to a matter, I am sorry.  Assume that you were to be granted special leave here and assume even that your case were given some priority, it is highly unlikely that you would get a judgment before February or March next year and if you were to lose, there would then have to be a trial.  What would be the effect of that on your client’s health?

MR WELLS:   The delay, your Honour?

CALLINAN J:   The delay and then ultimately having to face a trial.  Surely that would not be good for your client?

MR WELLS:   No, your Honour.  I hope your Honour will allow me, if I provide you with some information from the psychiatrist’s report ‑ ‑ ‑

CALLINAN J:   Well, no, assume that the lady is very ill and that she is going to be adversely affected by a trial, but assume that you were to lose and that there has to be trial and that it is postponed until next year, that could hardly be good for your client, could it?

MR WELLS:   It will not make any difference to her, your Honour.  As long as she does not have to think about the trial, she remains relatively stable.

CALLINAN J:   She will be thinking about it, surely, if she does not know whether she is going to have to face one or not.

MR WELLS:   No.  Your Honour, her position simply is that for as long as she is not faced with anything to do with the trial, it gets suppressed and it is forgotten.  It is only when she has to be brought back to it in order to give instructions in relation to the trial or to prepare for the trial that this exacerbation will and does become clear and real.  The delay would have no effect, your Honour.  It is the trial which has the effect and would have the effect.

Can I, if the Court pleases, move quickly if I may to the second point, which is the basis on which Helton v Allen should be overruled.  Your Honours should have a booklet of materials that we had provided, the applicant’s book of materials, and in it at tab 3 there is an extract from Helton v Allen and, in particular, for our purposes, the joint judgment of Justices Dixon, Evatt and McTiernan.  If your Honours would be good enough to turn to page 710.  In view of the shortness of time I will just have

to take the short paragraph.  It appears at just over halfway down page 710 when their Honours, we respectfully submit, classically enunciate a principle which would justify the conclusion that we contend for, which is of course the opposite to what was in fact concluded by the High Court in Helton v Allen. 

I do not take time to read it, but your Honours will see that it refers to and expresses the very ground of public justice which would require the forfeiture rule not to be extended to circumstances in which there has been, by verdict of a jury, a constitutional statement about the innocence of a person charged and brought to trial.  Because this is a rule of public policy which has been itself developed by the judges in order to fill a gap left by the repeal of the common law attainder rules, it would seem surprising, we would contend, that the rule of public policy constituting the filling of a gap should in fact be wider than the attainder rules that were repeals.  Of course, the attainder rules only applied to a convicted felon and not otherwise. 

There is every reason on the basis of that formulation for coming to the conclusion, in our respectful submission, that Helton v Allen should be overruled and that the forfeiture rule should not be held to apply where there has been an acquittal by verdict of a jury.  If the Court requires the psychiatric evidence, then we are in a position to provide it to the Court.

Your Honours, the final matter that we would contend for is that even if, contrary to our submission, Helton v Allen should not be overruled, then subsequent judicial developments lead one to the conclusion that Helton v Allen can be distinguished.  Your Honours will see on the same page, page 710, their Honours in that passage to which I took you, concluded that:

To qualify the rule in the manner suggested would, we think, amount to judicial legislation.

What we would say is that by reason of the development of principles of abuse of process since then, interstitial judicial activity now enables the rule to be qualified without judicial legislation in the way that we have outlined in our written submissions.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Wells.  We do not need to hear you, Ms Shaw.

The decision of the Full Court of the Supreme Court of South Australia was interlocutory and addressed certain issues of law that had been raised in advance of a trial of the action.  As no trial of the action has yet occurred and as there are substantial issues of fact to be litigated, it is not appropriate for this Court at this stage of the proceedings to enter upon a consideration of issues of law that may or may not determine the outcome.

The case is not, at least at this stage of the proceedings, a suitable vehicle for the consideration by this Court of the issues the applicant seeks leave to agitate, and the application is refused with costs.

AT 11.40 AM THE MATTER WAS CONCLUDED