Roos v The Director of Public Prosecutions

[1994] HCATrans 428

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll6 of 1994

B e t w e e n -

SHANE ANTHONY ROOS

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS

First Respondent

THE DISTRICT COURT OF NEW SOUTH

WALES

Second Respondent

Application for bail

TOOHEY J

Roos 1 11/8/94

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 AUGUST 1994, AT 9.00 AM

Copyright in the High Court of Australia

MR T.A. GAME:  If the Court pleases, I appear for the

applicant. (instructed by Legal Aid Commission of

New South Wales)

MR P.I. LAKATOS: If the Court pleases, I appear for the

first respondent.	(instructed by the Director of
Public Prosecutions)

HIS HONOUR:  The Deputy Registrar has recorded that he has

been informed by the office of the New South Wales

Crown Solicitor that the second respondent, the

District Court of New South Wales, does not intend

to appear on the hearing of the summons and will

abide by any order of the Court save as to costs.

Yes, Mr Game.

MR GAME:  If the Court pleases, this is an application for

bail and for a stay of a sentence pending the

hearing of an application for special leave by the

applicant. The applicant has filed his

documentation in support of the special leave

application on 4 August.

HIS HONOUR:  I have read the papers and you can take it that

I am reasonably familiar with the authorities to

which counsel intend to refer.

MR GAME:  Your Honour, as to my outline which was forwarded

yesterday afternoon, in the interest of brevity I

will, in effect, speak to the written submissions

which I forwarded to you yesterday - - -

HIS HONOUR:  Yes. Just before you do that, Mr Game, would

you just clarify a couple of matters for me? What

is the effect of a control order? Does it operate

as a custodial order?

MR GAME:	Yes, you get locked up in a detention centre.
HIS HONOUR: In a juvenile detention centre?
MR GAME:	Yes, but you are under the control of the

Director-General who determines what happens to

you, but in effect you get locked up in a detention

centre under section 24 of the Children (Detention

Centres) Act, so that this applicant has, in

effect, a full time custodial sentence of 12

months. That is the practical effect of the

control order under section 33(l)(g) of the

Children (Criminal Proceedings) Act.

HIS HONOUR:	Is it within the discretion of the Director to release persons so sentenced at any time during the
period of the sentence?

Roos 2 11/8/94

MR GAME:  Your Honour, that is a large question but in

effect, in circumstances such as this, no, but the

Director-General, in certain circumstances, has a

discretion to allow a person to go to school, for

example.

HIS HONOUR:	Yes.
MR GAME:	It is quite a difficult area but there are certain

discretionary aspects of the order which would

enable a person to go out to school is one example,

but in this case the practical effect of this

sentence is a full time custodial sentence for 12

months.

HIS HONOUR:  Then why should I assume, for instance, that it

will constitute effectively a full time custodial

order?

MR GAME:  That is the practical effect of an order under

section 33(l)(g). I am sorry, I had not come

entirely armed to deal with this problem, but it

is - - -

HIS HONOUR:	I do not want you to go into great detail. just wanted to understand what was involved in the	I
making of such an order.

MR GAME:  I think it would be fair to say it is accepted on

all sides that the effect of a control order is

that it is a full-time custodial sentence of

12 months.

HIS HONOUR:  The other question I wanted to ask you is the

actual running of the sentence, because the

original sentence of six months control order was

made in May 1993 following a hearing in February.

MR GAME:  There is a mistake in my submissions there. The

appeal was lodged on 4 May, and bail was granted in

the supreme court on 31 May.	So he was in custody
for one month, but the effect of the grant of bail

pending the hearing of the appeal is that the
sentence was stayed. That is pursuant to

provisions under the Justices Act, but those

provisions no longer have any effect once his

appeal has been determined in the District Court.

Those provisions are to be found in section 123 of

the Justices Act. So the sentence was stayed from the grant of bail until the hearing of the appeal, and then the sentence commenced to run again when

he was sentenced by Judge Saunders.

HIS HONOUR: Effectively, the sentence imposed by the

District Court replaced that of the

Children's Court, and that sentence was one of

Roos 11/8/94

11 months operative from 9 March 1994, is that

right?

MR GAME: 

Yes, Your Honour.

HIS HONOUR: 

And did that take into account the fact that a

month had already been served pursuant to the order
of the Childrens Court?

MR GAME: 

Yes, Your Honour.

HIS HONOUR: 

They are the matters that I wanted to have

clarified. Thank you.

MR GAME:  So if the applicant had been given leave to

withdraw his appeal, then a six month control order
would have run at the commencement of this week. So he is now serving the balance of the sentence imposed by Judge Saunders.

Now, Your Honour, turning to the merits of the

application for special leave, there are two areas

in which I would submit that this case has

reasonable prospects of there being a grant of

special leave. The first concerns the

circumstances in which leave to withdraw the appeal

was refused, and the whole of the court dismissed

those submissions. But, Your Honour, what occurred

in relation to that, in my submission, both

demonstrates that the judge asked himself the wrong

questions; improperly he had regard to material

which was not relevant to his inquiry, and he

denied the applicant natural justice in refusing
leave to withdraw the appeal.

The questions raised by that aspect of the matter are of considerable importance because to

date, Your Honour, it has been regarded, I think it

would be fair to say, that the giving of the

warning, that is to say the warning that the

sentence might be increased, has been in effect

regarded as sufficient protection to applicants.

HIS HONOUR:  I take it you are not submitting, Mr Game, that

it was not within the power of the District Court

to refuse to allow the applicant to withdraw the

appeal?

MR GAME:  No, Your Honour, I am not submitting that it was

not within the power.

HIS HONOUR:  I understand the argument related to natural

justice.

MR GAME:  Your Honour, I am certainly not submitting that it

was not within power but I am .submitting that the

factors that touch upon the refusal of leave to

Roos 4 11/8/94

withdraw or the questions that one would consider
were not the questions to which His Honour

addressed himself. His Honour addressed himself,

in my submission, to questions which were

inappropriate to that question, the first being

that he thought the sentence was inadequate. He

would not be giving the warning in any case if it

were not for the fact that he thought the sentence

was inadequate. So that that, in itself, could not

constitute a reason.

Your Honour, in my submission, the fact that

leave is required - and I will come to section 132B

in a minute - should not be seen to undercut the

principle which is accepted in the criminal law and

as enunciated by this Court in Reg v Neal, that the

power to increase a sentence is redundant except in

very special circumstances and in the Court of

Appeal that line of argument was more or less

rejected out of hand. In my submission, there is a very important question of fundamental principle in

relation to the right of an individual to, in

effect, protect their residual liberty.

In a case such as this, that would involve,

were leave to be withdrawn, for example, making an

inquiry as to whether or not the individual was

even aware of the fact that by lodging their appeal

they were at risk of having their sentence
increased, whether or not they had been given an

opportunity and refused to take it, and so forth.

HIS HONOUR: Sorry, an opportunity by whom?

MR GAME:  By the judge. What I am saying is, the issues

going to the refusal of leave go to whether or not

the application is made bona fide, not whether or

not the judge thinks the sentence is inadequate.

Now, Your Honour, when leave was refused, the judge

simply said, "I refuse leave to withdraw". Then,

in his remarks on sentence, he said, "I refused

leave because the evidence in this case was more

dramatic than it was in the lower court.

Now, in effect, that amounts to the judge saying that the crime was more serious, and that

was a matter which had never been raised with

counsel, and if that is a relevant consideration,

it is a matter that had to be put, in my

submission, to counsel, because counsel just simply

could not have known that that was something that

was in the judge's mind.

HIS HONOUR:  But the judge flagged that, did he not, by

saying that he was minded to increase the sentence?

Roos	11/8/94
MR GAME:	Yes, but all he said was that he was minded to

increase the sentence. He did not flag the reasons

as to why he was minded to increase the sentence,

and the reasons which he subsequently gave

concerned the quality of the evidence. In my

submission he should not have had regard to the

quality of the evidence at all in the depositions.

This was a hearing de nova, and even if he had the

transcript of the magistrate's remarks on sentence,

what the quality of the evidence was was simply

irrelevant to his inquiry. But assuming that it

was relevant, in my submission, he had to put

counsel on notice that the reason he was proposing

to refuse leave was because he thought the case was

more serious that it had been in the lower court.

That was never flagged and it was something

that could be answered quite shortly. It could be

answered quite shortly because the magistrate found

the applicant liable as principal, so the

magistrate accepted the evidence before him but he

found him liable in the highest degree, in effect.

So, had it been put, it could have been answered

very shortly.

Your Honour, it is my submission that

section 132B was introduced in effect to facilitate

the maintenance of the status quo in circumstances

where, for example, if a person had a sentence
which - it may be necessary, for example, for a

judge to increase the sentence in order to maintain

the status quo because of the circumstances

relating to what occurred between the institution

of the appeal and the appeal coming on for hearing.

The second reading speech makes that fairly clear,

in my submission, and it is a matter discussed in

the case of Tolhurst, 19 NSWLR 1, at pages. If I

could take Your Honour also very briefly to the

second reading speech.

HIS HONOUR:

Do you have a copy of the relevant legislation,

Mr Game?

MR GAME: Yes, Your Honour.

HIS HONOUR:  One of the list of authorities promised that

the Court would have the statutes.

MR GAME:  It is in the services which are before

Your Honour. Section 132B of the Justices Act is

in volume 1. It was introduced in 1988:

(1) An appeal under Division 4 or 4A may at

any stage be withdrawn by the appellant with

the leave of the District Court.

Roos 6 11/8/94

(2) In giving leave ..... the District Court may

make such orders as are necessary to place the
defendant as nearly as possible in the same

position as if the appeal had not been made. The amendment actually arose out of some judicial comments which are referred to at page 5 of

Tolhurst - that is in the list that has been

provided to Your Honour - 19 NSWLR 1, at page SC,

reference to a particular case where the:

Court held that what the District Court judge

had done was effectively to increase the

sentence, although ostensibly merely

confirming it.

and, the Court called for a legislative response
which followed fairly promptly, and the second

reading speech which I have provided to

Your Honour, page 3172 about point 8:

It will enable the court to make such orders

as are necessary to place the defendant as

nearly as possible in the same position as if

the appeal had not been made.

HIS HONOUR:  I am not clear as to what area we are in at the

moment. It is accepted that there was power in the

District Court to do what it did.

MR GAME:  Yes.

HIS HONOUR: There is an argument about natural justice

which I think I understand.

MR GAME:  Yes, Your Honour, the second argument that I am

putting in relation to the refusal of leave to

withdraw is that the considerations which the judge

relied upon were, in effect, considerations which

amounted to asking himself the wrong question.

HIS HONOUR:  That may be, Mr Game, but the Court of Appeal

has considered that argument and unanimously in

that respect rejected the application.

MR GAME:	Yes, Your Honour.
HIS HONOUR:	It is not really just a matter of saying,

"Well, the Court of Appeal is arguably wrong." We

are in the area of special leave. What is special

about this aspect of it?

MR GAME:  What is special about it, Your Honour, is that if

this decision stands, it will mean, in effect, that

if a judge thinks that a sent~nce is inadequate

then, and for no other reason than that, he may

refuse leave to withdraw an appeal. That will have

Roos 11/8/94

very dramatic effects on the rights of individuals.

It will also have very dramatic practical effects

and, in my submission, it is wrong in principle.

So this case will have a very dramatic effect

on District Court appeals. In effect, it will

clear the list of a very substantial number of

cases simply because of people's fear that they

will have their sentences increased. In my

submission, it is an approach which is contrary to

principle. It is a quite important question both

of principle and in practical terms.

The reason I was referring to section 132B and

its introduction was that the court appears to have

approached the matter on the basis that

section 132B effected some change in the status quo
in relation to the general principles in relation
to withdrawal of appeal, and I was simply referring

to that to show that it was introduced, in effect,

for machinery purposes, not to alter the

fundamental principles which have been accepted in

cases from the time of Whittaker, Neal v The Queen

and so forth.

HIS HONOUR:  If the matter comes before the District Court

in the way that this matter did and a judge of the

District Court considers that the sentence imposed

below is inadequate, is not faced with an
application by the Crown to interfere with the

sentence below, refuses leave to the applicant to

withdraw the appeal, in what circumstances do you

accept that the District Court may then impose a

higher sentence than was imposed below?

MR GAME: If he refuses leave?

HIS HONOUR:	Yes.
MR GAME:	If he refuses leave, then the circumstances are no

longer concerned with the refusal of leave but what

is the appropriate sentence, and he may then impose

a higher sentence if he has refused leave. But my submissions are only concerned with the refusal of leave to withdraw the appeal, so I would have to

accept that if he has properly refused leave -

HIS HONOUR:  Yes, that is why we are in something of a

circle, are we not?

MR GAME:  Yes, Your Honour, but the granting of leave to

withdraw the appeal is the safeguard for the

individual, that is to say giving him the warning,

and saying, "Do you want to withdraw your appeal?"

In my submission, Your Honour, as I said at the

outset, the fact that the judge thinks that the

sentence is inadequate is not a reason to refuse

Roos 11/8/94

leave. The refusal of leave must be concerned with

the bona £ides of the application. In a case such

as this where the Crown does not even oppose the

application to withdraw the appeal there are no

circumstances. None have been identified which

favour the refusal of leave.

HIS HONOUR:  Does that argument lead to a conclusion that if

the court refuses leave to withdraw the appeal it

can do no more than affirm the sentence imposed

below, and that in those circumstances the court

may not impose a higher sentence than was imposed

below? Does your submission lead to that

conclusion?

MR GAME:  I am sorry, Your Honour, if the court grants the

leave to withdraw or refuses the leave?

HIS HONOUR:	No, refuses.
MR GAME:	If the court refuses leave and the court properly

refuses leave then naturally it would have to be

accepted that the court had power to increase the

sentence but my arguments are all directed to the
safeguard which, I would submit, is to be found in

the leave to withdraw the appeal and the granting
of leave to withdraw the appeal. Once leave is
withdrawn then the sentence is at large - sorry,

once leave is refused, the sentence is at large.

HIS HONOUR: Refused, yes, I understand.

MR GAME:  So that, in my submission, on the first leg the

case has got very important questions of principle

which arise and very, very significant practical

daily effects, and this particular jurisdiction is

a massive jurisdiction in New south Wales. Your

Honour, the second leg of the application concerns the failure of the judge to sentence in accordance with the provisions of the Sentencing Act.

HIS HONOUR: Well, that is accepted, is it not? At least it

was accepted by all members of the Court of Appeal.

MR GAME:  Your Honour, my submission is that Justice Handley

fell into error when he concluded, for the reasons

that he did, that errors of this kind were not

jurisdictional and, in my submission, the approach

taken by Justice Sheller is correct; that in effect
in relation to provisions such as this the
legislature takes the courts as it finds them, and
prerogative relief and excess of jurisdiction is
only concerned with orders made by inferior courts.

So that it is really not to the point to say that errors of this kind, made by a superior court,

would not be regarded as jurisdictional.

Roos 9 11/8/94

HIS HONOUR:  Am I right then in thinking that the error

which the District Court fell into was not merely

the fixing of a fixed term, or was not by reason of
the fixing of a fixed term which lay within its
power, but in its failure to articulate reasons for

taking that course rather than imposing the minimum

and maximum term?

MR GAME:	The court has power to fix a fixed term.
HIS HONOUR:	But was it the non-articulation of reasons that constituted the error.

MR GAME:  Yes, Your Honour. But section 5 says the court is

required to fix a minimum and additional term, and

section 6 says that the court must give reasons.

The court may impose a fixed term but must give

reasons for so doing, and so clearly - and the

whole of the court - except that the sentencing

judge simply overlooked the applicability of
sections 5 and 6 of the Sentencing Act. That is to
say it was not simply a failure to give reasons per

se. The failure to give reasons disclosed that the

judge had failed to sentence in accordance with

sections 5 and 6 of the Act. The giving of reasons

is, in effect, the legislative safeguard against

failure to comply with those provisions. It

ensures that if it is not done then it is recorded

that it has not been done and why it has not been

done.

HIS HONOUR:	And again, if I understand it correctly, that obligation was not applicable in the case of a
sentence as short as six months - - -

MR GAME: That is right, yes.

HIS HONOUR:  But arose at some point, I am not clear

where -

MR GAME:	As soon as you got over six months.
HIS HONOUR:	As soon as it got over six months.

MR GAME:  If you impose six months or less you must impose a

fixed term.

HIS HONOUR: Right, yes I understand that argument.

MR GAME:  Now, in effect, in relation to this question and

if one accepted Justice Handley's approach, the

only kind of sentencing errors which would be

amenable to prerogative relief would be ones where,

for example, the maximum penalty was one year and

the judge imposed a sentence of two; something

along those lines.	In fact, he said as much in his
judgment at page 12.

Roos 10 11/8/94

There would really be very little or no room

for prerogative relief in relation to sentencing

errors made by District Court judges if the

judgment of the court stands.

HIS HONOUR: There is a matter raised in the respondent's

summary of argument, namely, that there was an

avenue available to your client to apply to the

District Court to have the matter re-opened.

MR GAME:  I have an answer to that, and I have dealt with it

in my written submissions. I would say this at the

beginning, Your Honour, if the approach to

jurisdiction taken by Justice Handley is accepted,

and if the applicability of section 24 is accepted,

then there would never be a case. Simply by

definition there could never be a case in which you

get prerogative relief, because only sentences that

were contrary to law would be amenable to

prerogative relief and sentences which are contrary

to law are sentences which would fall within

section 24 of the Criminal Procedure Act.

HIS HONOUR:  I do not want you to go into the detail of this

argument, but is it your argument that the failure

by the District Court to meet the requirements of

the legislature in regard to sentencing constituted

an excess of jurisdiction, or do you put the claim

for prerogative relief on some other basis?

MR GAME:  No, Your Honour, I put it on that basis.

HIS HONOUR: Again, not losing sight of the fact that what

is before this Court other than the bail

application is ultimately an application for

special leave to appeal, what is it about this

argument that takes it into the realm of special

leave?

MR GAME:  What about this argument that takes it into the

realm of special leave is that the notion that

errors in what Justice Handley describes as the

applicability of the general law, even fundamental

errors, for example, awarding damages where there

is no legislative entitlement to do so, to hold

that that is not jurisdictional error - that is to

say, even if an order is made beyond power but is

not beyond jurisdiction - is a matter of great

importance in relation to administrative law. I

should say, Your Honour, that in my own reading of

the textbooks in relation to this, I cannot find

anywhere where this line of argument has ever even

been suggested.

Most of the cases that are referred to by

Justice Handley do not even appear in the basic

administrative law text. So it is a line of

Roos 11 11/8/94

argument which, in my submission, is both novel and

fundamentally wrong because it - and it very

narrowly - it was a result in a very narrow

application of prerogative relief to all sorts of

legislation, not simply the Sentencing Act, but any
legislation which one would describe as falling

within the general law, as Justice Handley terms

it. So it is an important case both in relation to

the prerogative relief jurisdiction of the Supreme

Court which is really all about District Court appeals because that is the fundamental area in

which it arises in New South Wales. But it has got

much broader application in relation to all sorts

of statutes and how it can be said that an order

that is made beyond power somehow still falls

within jurisdiction. So, in my submission, it is

an important case for other sorts of reasons, not

simply concerned with the application of the

Sentencing Act in New South Wales and errors of

this particular kind.

HIS HONOUR:  On your argument does it follow that any

failure by a sentencing judge to observe the

requirements of a relevant statute constitutes an

excess of jurisdiction and renders that sentence

amenable to challenge by prerogative procedure?

MR GAME: Yes, Your Honour. Any mandatory provisions - and

this is a mandatory provision - and there is no

question about the fact that it is a mandatory

provision.

HIS HONOUR:	Yes, I follow that.
MR GAME:	The whole court accepted that it was a mandatory

provision. So, really, what one is talking about

is, "Are there breaches of mandatory provisions of

inferior courts which do not amount to excess of
jurisdiction?" That is the section 5 and 6 leg of

the special leave application.

Your Honour, in relation to section 24 of the

Criminal Procedure Act in the Court of Appeal this

was argued about and the court, although not

dealing with it ultimately doubted there was such a

power and, in fact, the majority of the court by

holding that the sentence was a lawful sentence in

effect would make it very difficult with this

decision standing to go back and argue that the
sentence was contrary to law. In fact, the mere

existence of this decision would put the applicant

in an impossible position in seeking to argue that

point before the District Court judge.

Secondly, Your Honour, even if the relief were

available there are discretionary reasons as to why

this application should not be thwarted in effect

Roos 12 11/8/94

by the possibility that the District Court judge

might fix a minimum term. I mean, what this

application seeks to do is to strike at the whole of the judge's order. Going back to the District

Court judge may simply elicit a response, "I
decline to fix an additional term, these are my
reasons," thereby destroying the subject-matter of
the appeal. Or, he might fix a minimum term of

10 months and an additional term of one, so that

there is no joy to be found for the applicant in

going back to the District Court even if such

jurisdiction existed.

There is another argument that a control order

Criminal various matters that come under the Criminal

is not a penalty under section 24 of the

Procedure Act and the Children (Criminal

Proceedings) Act is not referred to directly at all in the Criminal Procedure Act. So, there are at

least two reasons as to why section 24 of the

Criminal Procedure Act may not apply in relation to

this case at all.

So those reasons and the reasons that I have

set out in paragraph 3 on page 3 of my written

submissions are the reasons why I would submit that

the possibility of the District Court judge fixing

a minimum term should not be a discretionary bar to

this application. The one I have not mentioned

particularly, the one at 3(e), is that naturally

enough this application and the application in the the order made by the judge, so that the whole of the 12 month order, the whole of the increment of the sentence.

Your Honour, for those reasons, it is my

submission that the case does raise important

questions of general application and the

circumstances of the case itself would warrant a

grant of special leave for those reasons. In

relation to the grant of bail the - - -

HIS HONOUR:  Is it accepted that a grant of bail would not

have the effect of interfering with the running of the sentence, so that if bail were granted and the

application for special leave to appeal failed or

if granted the appeal itself failed, from a

practical point of view the sentence would have run

its course?

MR GAME:  Your Honour, if the Court merely made an order for

bail but made no order staying the sentence - - -

Roos 13 11/8/94

HIS HONOUR:  Yes, I was going to come to that in a moment,

but so far as bail is concerned you accept that is

the position, do you?

MR GAME:  Yes, Your Honour. I accept that if the Court

simply granted bail the sentence would continue to

run.

HIS HONOUR:  What would be the effect of staying the

sentence without granting bail?

MR GAME: Without granting bail?

HIS HONOUR:  Well, there are various possibilities: grant

bail, refuse the application entirely, stay the

sentence with or without perhaps granting bail.

MR GAME:  Your Honour, if Your Honour stayed the sentence,

then the sentence naturally enough would not

continue to run.

HIS HONOUR:  And the earlier sentence will have expired -

the six month sentence?

MR GAME:	Yes.
HIS HONOUR:	Does that have any life of its own, now?
MR GAME:	The original six months sentence?
HIS HONOUR:	Yes.
MR GAME:	No, Your Honour.
HIS HONOUR:	So whatever happens, the six month sentence has

disappeared, has it?

MR GAME:  Yes. But if Your Honour granted bail and stayed

the sentence, then the applicant obviously would be

at liberty but the sentence would not continue to

run. This case is distinguishable from Whan v Mcconaghy because there was no stay of the	sentence. It was, in effect, an ex post facto
judgment of what had occurred, there having been no
stay.

HIS HONOUR: Well, the Crown does not accept that, I gather

from Mr Lakatos' submission.

MR GAME:	Yes.
HIS HONOUR:	I do not know that he puts it so strongly as to

say that is not the case, but it at least says that

it is doubtful.

MR GAME:  There does not seem to be any decision of this
Court in which this particular problem has been

Roos 14 11/8/94

grappled with squarely. What happened in Malvaso

would not seem to be available in this case. What

happened in Malvaso was that Justice Deane granted

bail on the condition that the South Australian

Court of Criminal Appeal would itself make an order that time not run, but that was done under the

relevant provision of the Criminal Appeal Act and,

in effect, the case is about the application of the

slip rule, because the court had failed to make
that order earlier. So that does not appear to be

available in this case, and in this case, the case

of Roos, the Court of Appeal held that it did not

have power to grant bail. So, the question which

arises in this case is whether or not the court not

only has - well, it is clear that it has power to

grant bail, but whether or not the court has power

to, in effect, stay the sentence, and in my

submission it is clear enough that the court does

have such power. If one goes back to cases such as

Tait, which involved the staying of an order for execution, if an order for execution can be stayed, then clearly the running of a sentence can be stayed, because that is, in effect, the same - it

is a direct analogy.

HIS HONOUR:  Well, I will hear what Mr Lakatos has to say on

that, Mr Game. I am conscious of time and also of

giving Mr Lakatos something like equal time.

MR GAME: Yes, I apologize.

HIS HONOUR:  No, not at all. Are there any further

submissions you wish to make?

MR GAME:  No, Your Honour.

HIS HONOUR: Yes, thank you. Mr Lakatos.

MR LAKATOS:  Your Honour, my friend raises two broad issues

on the special leave application; the first is, in

effect, a denial of natural justice emanating from

many different ways, and the second is the	the refusal of leave to withdraw, and it is put in	Sentencing Act problem. Your Honour, in relation to the first matter, obviously the entire unanimous
Court of Appeal found, for various reasons, that each of those arguments did not find favour, in my
respectful submission, for correct and proper
reasons.

The main one that seems to be put in this

Court, as I understand it, Your Honour, is the inadequacy of the reasons given by His Honour

Judge Saunders for the refusal of leave to

withdraw. May I make this point, Your Honour,

that, certainly in the Court of Appeal, and in the

amended summons filed in that court, the only issue

Roos 15 11/8/94

raised relating to the reasons was that no reasons

were given, and it is clear from the way that

His Honour Mr Justice Handley dealt with that particular submission, which is to be found at

page 5 of the judgment, that there was no specific

argument directed towards the point which is now

said to be the special leave point, namely, were

the reasons ultimately articulated by His Honour

Judge Saunders adequate for the refusal of leave?

In my submission, the Court of Appeal never directly considered that matter.

HIS HONOUR:	Do you mean because it was not asked to?
MR LAKATOS:	It was not asked to, that is right, and, in my

respectful submission, if that be a correct

analysis then this Court would be loath, in my

respectful submission, to grant special leave in a

matter which is raised here for the first time.	In
any event, Your Honour, another matter is put in

relation to that and that is, the denial of natural

justice in reference to material not properly

before the District Court judge. That was dealt
with by Mr Justice Handley in the way of saying
that the evidence before the Court of Appeal was

not sufficiently specific to enable Their Honours

to know what was properly put before His Honour

Judge Saunders or otherwise, and, Your Honour, at page 7 His Honour says, quite clearly and

unarguably correctly, "It is the claimant who bears

the onus of proof".

There was not, for example, affidavits put on

by either party as to what, in fact, was properly

before the judge or not. It appeared that the

transcript which was before the Court was labelled

"extract", and Their Honours simply were not

satisfied, as an evidentiary matter, that the
matter had been sufficiently proved for them to

take the step of saying His Honour Judge Saunders

correct analysis, then certainly no special leave had erred. And, in my submission, if that be a	point arises at all in relation to that aspect of
the matter.

In my submission, if that be a correct

analysis then certainly no special leave point

arises at all in relation to that aspect of the

matter. My friend then referred, Your Honour, to

section 132B saying, in effect, that there is an

overriding, almost common law gloss to that

provision, that it is only in rare and exceptional

circumstances that leave to withdraw would be

refused. In my submission, His Honour, again

Mr Justice Handley, and he was speaking for the

court, clearly said that Neal's case was a totally

Roos 16 11/8/94

different case dependent on different statutes and
statutory rules.

There the applicant in Queensland had a right, under the rules, to file before an appeal came on a

notice of abandonment which would have the effect,

of course, of preventing the matter going on appeal

and therefore the matter be reviewed. In this

particular case, and it is quite clear, it is by

leave of the court. Now it seems, with the

greatest of respect, that that language is clear;

it gives the court a discretion, "Do I grant leave

or do I not?" In my submission there can be no

argument, and the Court of Appeal below so found,

that in some way a judge is bound by principles or

other matters to grant leave when he or she

properly thinks that leave ought to be refused.

HIS HONOUR:  But the next step, I take it, is that if leave

is refused then although the only appeal in form is

the applicant's appeal, the court is empowered to

increase the sentence imposed below. That seems to

be common ground.

MR LAKATOS:	There is no doubt that is right, Your Honour, and indeed in Parker's case the President quoting
Mr Justice Priestley in an earlier case of
Reischauer goes through the fact that the
provisions of the Justices Act say, in effect, it is a hearing de novo. If it is, well, then how the matter strikes the new judicial mind afresh must mean, with the greatest of respect, that the new
judicial mind may well increase up to the limit the
magistrate could have done. So, in my submission,
there is really no merit in the section 132B
argument whatsoever.
Your Honour, the next matter is the quite clear error made by His Honour Judge Saunders in
relation to the Sentencing Act matters. I concede
that there is a difficulty and it is no easy
question as to how one categorizes a particular
error as being jurisdictional or otherwise. However, in my submission, Mr Justice Handley's
approach is the correct one.  In the end this was
simply a failure by His Honour Judge Saunders to supply the reasons he should have done under
section 6(3) of the Sentencing Act for not setting
a minimum and an additional period.
In my submission, section 24 of the Criminal Procedure Act has been brought in as a fast track
way of correcting such sentencing errors. It is
quite clear that the object of that provision was
not so that we would go to the Court of Appeal and argue about whether section 146 of the Justices Act prevents certiorari being granted or otherwise, and

Roos 17 11/8/94

then come to this Court to correct sentencing

errors. It was a fast track way of going back and

saying to a judge or a magistrate, "Do it

properly."

HIS HONOUR:  Of course, the applicant's argument goes

further than that though, does it not? It is not

merely that there was a failure to articulate

reasons for imposing a fixed term, but that the

failure in these circumstances evidenced a failure

really to advert to the whole sentencing structure,

as it were.

MR LAKATOS:  Yes, to deal with minimum additional sentence

first, reject it, and then go to the - - -

HIS HONOUR:  What do you say about that? Whether or not

that argument is good, there is	still the question
of whether it is appropriate to	grant special leave
to argue that point, but taking	it step by step
what do you say about the first	aspect of it?

MR LAKATOS: In my submission, Your Honour - perhaps I take

the easiest course. It is a matter of some

difficulty, but in my submission, section 24 would

allow the correction of such an error also, which

is the way that I am pitching this particular

aspect.	It is quite clearly a penalty contrary to
law.	My learned friend said, in effect, that the

effect of the Court of Appeal decision was that it

was not contrary to law. Well, all of the judges

held that it was a legal error.	The only issue
was:	was it jurisdictional or otherwise?
It is, with respect, a penalty. "Penalty" is

defined in section 24 as including a whole lot of

things, this control order not being one, but it is

quite clear that a control order has all the

incidence of a penalty and the definition being an

inclusive one would include a control order.	In my
respectful submission, that provision was put there
simply to fix errors of this kind.	Even if, with

the greatest of respect, Mr Justice Sheller's

analysis is correct, all that would have occurred

is that the sentence would have been quashed and

the matter would have been remitted to presumably

the same judge to do it properly.

HIS HONOUR:  What happens on an application under

section 24, Mr Lakatos? In what sense is the

matter reopened? Does the court hear evidence

afresh: does it work from the record of what went

before?

MR LAKATOS:  To be frank, Your Honour, I have to say that

practically speaking that is not within my

experience. I can only make assumptions about what

Roos 18 11/8/94

occurs and, doing the best that I can, I would

think, Your Honour, that if a legal error is

identified by one or other of the parties and

brought to the judge's notice, the judge would do

all that is required to fix the legal error. If it

is not having heard somebody properly about a

matter, that could be done; if it is - - -

HIS HONOUR:  But when you say the judge, are you envisaging matter originally came? that it goes back to the judge before whom the

MR LAKATOS:  I would have thought in the normal course it

would do.

HIS HONOUR:	I see.
MR LAKATOS:	In respect of that, Your Honour, my friend says

we would lose the whole point; we are striking at

the whole of the order of Judge Saunders. That may

or may not be the case but this, with respect, as

the Court of Appeal noted in argument, is not some

sort of game. This relates to the proper

imposition of penalties.

To move to the problems as is envisaged by the

first respondent, if Your Honour does grant bail,

in my submission, Whan v Mcconaghy says that the

sentence runs. If Your Honour grants a stay the

sentence is stayed. The problem arises about

whether or not this Court has a power to reactive

in the event that special leave is refused or the

appeal is refused. In my respectful submission

that presents a great problem that if, in effect,

what His Honour Judge Saunders did is found to be

correct and that 11 months or 12 months effectively

is the penalty imposed, according to law or

properly, then in effect the applicant will have

avoided half the sentence.

HIS HONOUR: Yes, I am not entirely clear what the

submission is here. Is it that notwithstanding a

stay of sentence the granting of bail would, in

some way, keep the sentence running?

MR LAKATOS:  No.

HIS HONOUR: But, if the sentence is stayed, does the

question of reactivation arise?

MR LAKATOS:  In my submission, having regard to the Court of

Appeal authorities, particularly Parker and the

like, Their Honours and, indeed, for that matter

Mr Justice Handley in this case, that in reliance

upon, I think, comments which fell from Court in

Whan v Mcconaghy, Their Honours drew a distinction

between stopping a sentence and its reactivation at

Roos 19 11/8/94

a later point in time. The way that was put in all

of the cases is that a sentence is predicated to

run from a particular starting point to a

particular finishing point. Bail does not stop
that, we put bail aside. A stay does, but

Their Honours in Whan v Mcconaghy, I think of which

Your Honour was a member of that Court - -

HIS HONOUR:	No, I was not. At least I do not think I was.
MR LAKATOS:	Yes, perhaps Your Honour was not.
HIS HONOUR:	I do not think I was even around at the time.
MR LAKATOS:	It was in 1984, I am not sure if Your Honour

was. But, in any event, Their Honours made the

point that so far as the State Supreme Courts and

Courts of Criminal Appeal were concerned those

courts relied upon special statutory enactments,
for example, section 18(3) of the Criminal Appeal

Act of New South Wales and section 125 of the

Justices Act to allow sentences to be re-commenced,

and Their Honours said that in the absence of some
special statutory provision a court did not have an

inherent power to re-commence a sentence.

HIS HONOUR:  So although the sentence had been stayed,

nothing more could be done in respect of it.	Is
that the proposition?

MR LAKATOS: That is the proposition, and that has been

articulated a number of times, particularly by the

President of the Court of Appeal in Parker, being

one case, and in Young v Registrar of the Court of

Appeal in another. I have to say, Your Honour,

that the Crown advocate in Young's case made the
submission that section 23 of the Supreme Court Act
of New South Wales, which gives that court all of
the jurisdiction in relation to the administration

of justice, the submission was made that as part of

that broad jurisdiction there is a power to

reactivate but that certainly did not find favour

with the President.

So, the fear for our side is, Your Honour,

that if there is a grant of bail and a stay, and if

special leave is refused, or the appeal is

ultimately refused, then Mr Roos gets a free

6 months, to put it that way.

Perhaps the only other thing I ought to do as

a matter of form, Your Honour, is, in my

submissions I refer to an affidavit Mr Irvin - - -

HIS HONOUR: Yes, I meant to ask you about that.

Roos 20 11/8/94

MR LAKATOS: It simply annexes a letter - and perhaps if I

may file that in Court with Your Honour's leave -

wherein my client puts the view that section 24

could fix at least that part of the problem.

HIS HONOUR:  I note that the letter concludes:

In the circumstances we -

that is, writing on behalf of the office of the

Director of Public Prosecutions:

advise that it is our present intention to

make such an application.

Does that - - -?

MR LAKATOS: That is so. It depends upon what this Court

does, but we would certainly do so, Your Honour, if

no bail is forthcoming from this Court. We are

keenly aware of the arguments put by my learned
friend that, as he sees it, that would be

undermining his appeal so may I say that matter is

being considered. We would not want to be seen to

be taking away some point available to my learned
friend but, on the reverse side, we have indicated

our intentions.

HIS HONOUR:  Yes. Thank you, Mr Lakatos.

MR LAKATOS:  Your Honour, apart from that I rely upon my

written submission.

HIS HONOUR:	Mr Game.
MR GAME:	Your Honour, just in relation to the reactivating

the sentence: as I read Whan v Mcconaghy, that is

concerned with the situation in which the sentence

had expired and whether or not the Court had

jurisdiction to revitalize the expired term, so it

is entirely distinguishable from this case. There
is nothing in Parker's case - in fact

Justice Kirby's decision in Parker's case is quite to the contrary to suggesting that the sentence

could not be revitalized if the sentence was, in

effect, stayed. So, the concern really is a

concern that has no foundation if the Court grants

the stay.

Your Honour, in relation to section 24 of the

Criminal Procedure Act, the section says:

If a court has •••..

(a) imposed a penalty that is contrary to

law

Roos 21 11/8/94

Well, the decision of the Court of Appeal in this

case has held, in effect, that the sentence is not contrary to law but that the procedures whereby it

was arrived at was contrary to law.	So that the
penalty is not contrary to law.

HIS HONOUR:  Why is it not contrary to law, if it is

contrary to the provisions of the Sentencing Act?

MR GAME: Well, "imposed a penalty that is contrary to law" .

It is the penalty of 11 months. The control order

of 11 months is a	penalty that is a penalty
according to law.	You can fix an 11 month
sentence.

HIS HONOUR:  Do you mean that section 24(a) operates when a

court has fixed a sentence in excess of that which

may properly be imposed?

MR GAME:	Yes.
HIS HONOUR:	In other words, if the maximum is three years

and the court imposed a sentence of four years,

section 24 would be applicable, but not otherwise?

MR GAME:  That would be an example, but there are other

examples. But this sentence, in my submission,

would not be one that fell within section 24. But,

in any event, there are - as I said before, this

application seeks to strike at the whole of the

order, so it has substantially more ramifications

than those raised, and as I said before in

argument, really, going back to that District Court

judge simply produces the risk that he will simply

say, "Sentence 12 months, my reasons are X, Y and

z ti.

HIS HONOUR:  Is it your understanding of the legislation,

Mr Game, that if section 24 is invoked, that the

application to re-open goes back to the judge who	originally dealt with the matter? There may be a	question of practice involved here, or a question
of what the legislation required.

MR GAME:  It says that it may be that court or the court

otherwise constituted.

HIS HONOUR: It actually says that, does it?

MR GAME:  Yes, but one of our applications in the Court of

Appeal was that the judge disqualify himself, so

that that was not, in effect, ultimately addressed,

but it would involve us in going back before a

judge who, on our case, had unfairly dealt with the

applicant.

Roos 22 11/8/94

Now, Your Honour, also the penalty under

section 24 is said to include:

a sentence of imprisonment, an order for

periodic detention, a fine, a community

service order, a forfeiture, a

disqualification -

various other things, but it does not - and on the
ordinary principles of statutory interpretation,
one would think that by not including a control

order, or any order made in the Children's Court,

that this legislation was not intended to pick up a

control order, so there is that additional problem

which is that is may not even be contemplated by

the legislation. I will not read it, but I have

already referred Your Honour to that passage in fact that, even if it is open, there are other

considerations.

Now, the argument which was rejected at page 7

of Justice Handley's judgment was not the whole of

the natural justice argument. That part of the

argument which was rejected was that part of the
argument which was that the material was not even

before the judge. But what the transcript

disclosed was that the judge had read the remarks

on sentence, but the natural justice argument goes

substantially further than that. The argument was

not simply restricted to an argument that the
material was not before him at all, the argument

also went to, "Well, if it was before him then",

and that was clearly put. It was clearly put and

not addressed in the court's judgment.

In relation to the reasons given, although I

would have to concede that that was not

specifically adverted to in the summons it is

clear, in my submission, on the argument in the

Court of Appeal, that the whole of the argument was

an argument about whether or not those reasons

given could ever be adequate reasons. So whether

or not, and what reasons could be adequate reasons

for refusal of leave to withdraw was at the heart

of the argument in the Court of Appeal. Those are

my submissions in reply, if the Court pleases.

HIS HONOUR:  Thank you, Mr Game. There are some matters

that have been raised that I would like to give

some consideration to. I am conscious of the

limitations of time for this application and also the fact that I return to Perth tomorrow evening.

I propose to deal with the matter tomorrow morning.

It is unlikely, given the fact that I will be in the Full Court today, that I will be able to have

reasons available in writing by that time, but they

Roos 23 11/8/94

can be delivered orally and available later to the parties. I do not want to hold counsel back here. If the application were refused, then I suppose

nothing further need be done. If the application

were granted, questions would then arise as to the

terms of bail. I do not know whether counsel have

representatives who could be present tomorrow

morning to save them waiting here.

MR GAME:  The affidavit of Clare Farnan which is with the

papers - I should have formally read that - sets

out what the bail conditions were in the Supreme

Court. The respondent has some proposed bail

conditions which are basically in the same terms
except that they have additional terms relating to
prosecuting the application for special leave with

diligence and so forth.

HIS HONOUR:  If the application were granted, Mr Game - and

I am not foreshadowing the outcome of this - would

you be content with the bail conditions suggested

by the respondent?

MR GAME: Yes, Your Honour.

HIS HONOUR:  Do you have any further submissions to make in

respect of those conditions?

MR GAME:	No, Your Honour.
HIS HONOUR:	So that from your point of view it would not be

necessary for you to be present tomorrow?

MR GAME:  No, Your Honour. Could I be excused tomorrow

morning?

HIS HONOUR: Yes. In fact - and it is a matter for the

parties - but in the circumstances I do not require

that you be present or that anyone be present

really, although I assume somebody will be.

MR GAME:  I will make arrangements for somebody to be

present but no, Your Honour, we would not -

HIS HONOUR:  When I say I do not require it, if the

application were acceded to, it seems to me that

somebody ought to be here on behalf of the

applicant.

MR GAME:  Yes. I should mention there was one other thing,

Your Honour. There is no evidence about this

before the Court, but I made inquiries about when a

special leave application could be listed in the

would not be at the earliest until something like ordinary course and I was led to believe that it event that bail was refused for expedition and

Roos 24 11/8/94

although I did not specifically address the Court

to that, were bail refused - - -

HIS HONOUR:  It is not the practice here before a single

Justice to order an expedition in my experience and

it is a matter that can be taken up with the

Registrar and, in turn, with the Chief Justice.

That seems to be the appropriate way of dealing

with that.

MR GAME:  Yes, Your Honour.

HIS HONOUR:  Very well, thank you. I will give reasons

tomorrow at 9.30 am and the matter can stand

adjourned until then.

AT 10.04 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 12 AUGUST 1994

Roos 25 11/8/94