Rowson v Commonwealth Director of Public Prosecutions

[2009] HCATrans 111

[2009] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2007

B e t w e e n -

MARK WILLIAM ROWSON

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 9.28 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR G.A. HILL, for the applicant.  (instructed by Rowson Eddey & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

GUMMOW J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, the application has two legs, two very simple legs.  The first turns on the relatively simple proposition that the decision in Peel was in error.  The second turns on an equally simple proposition that the decision in Rohde was in error.  Although Peel has stood for some 40 years it was decided by a majority of four to three, following the equally divided decision ‑ ‑ ‑

GUMMOW J:   So is the Boilermakers’ Case.

MR NASH:   Yes, your Honour, and that of course does not necessarily mean that Peel was right or wrong because it was decided by four to three.  My recollection, your Honour, is that the Boilermakers’ Case, Sir Robert Garran who provided an advice took a view that the majority of the High Court was wrong, but that is past history.  The significant thing about Peel is that we say no sufficient consideration was given to two matters:  one, the context.  At the time Peel was decided and the time Williams was decided this Court approached statutory interpretation from a basically literalist approach.  It started with the words of the Act and then proceeded to determine the meaning of those words.

Since then the Court has taken a different approach to the question of statutory interpretation.  If I may, with apologies, hand to the Court an extract from CIC Insurance v Bankstown Football Club with which the Court is familiar.  There the Court expressed the view that the modern approach to statutory interpretation was to start with the context, to look at the legislation in context first.  The context in which the decision in Peel was made was in the context of the background of Seaegg’s Case and a decision by the Commonwealth Parliament as indicated by the Attorney‑General’s speech to confer on a person convicted of a federal offence the same right of appeal as he would have had if he had been convicted of a State offence.

It is our submission that the view expressed by Sir Garfield Barwick in Peel expresses the preferable view (a) because if one looks at the mischief, that was the mischief that was to be dealt with; (b) if one starts from the fundamental common law position that legislation is not intended to overturn fundamental common law principles unless it does so in express terms - it is true that Sir Owen Dixon in Williams said that rule did not apply when you had one piece of Commonwealth legislation picking up an existing State system.  We say that, with all respect it is very difficult to say that Sir Owen Dixon ever could possibly have had anything wrong, but that argument stems from the premise as to what was picked up. 

If the argument is valid it requires the premise that the legislation that was picked up was the legislation dealing with appeals against sentence, as well as appeals from conviction.  That is an assumption that is not borne out by the second reading speech.  It is an assumption that is, we say, contrary to that second reading speech.  If I may say so I am terribly intimidated by the fact that the Court is not attacking me sufficiently because ‑ ‑ ‑

HAYNE J:   Beware the silent Court.

MR NASH:   I at least expected your Honour Justice Hayne to offer me an olive branch with which you could beat me to death.  The propositions are simple, they are supported.  The basic proposition, namely the proposition against double jeopardy is supported, not only by what Sir Garfield Barwick says, but also by what Justice Deane said in Rohde.  His Honour spent a great deal of time indicating that he did not like Peel although Peel was not in issue in Rohde.  In Byrnes this Court also canvassed at length that fundamental common law proposition.  We say that if this Court were interpreting the 1932 amendment today this Court would start with the context, would start with a fundamental common law proposition against double jeopardy and would come to a different conclusion.

Although Peel has been treated as operative as good law in subsequent cases, Carngham, Gee and Rohde, in none of those was the issue actually argued.  In Rohde Justice Deane expressed the view that if it had not been for Peel he would have had considerable doubts as to the operation of section 567A.  If I can turn reluctantly, because I feel terribly uneasy with the silence from the Bench, to the second limb ‑ ‑ ‑

GUMMOW J:   Do not provoke us.

MR NASH:   Perhaps my learned junior has given me a little bit of sustenance.  If I could hand to the Court an extract from the decision in John v Commissioner of Taxation the significance of the extract quoted is at page 438.  A number of grounds are cited for the Court to reconsider a decision.  But if one goes to 439 to 440 we find the extract from Babaniaris cited in our outline of submissions adopted by the Court and at 440 about line 10 ‑ ‑ ‑

GUMMOW J:   John is not dealing with reopening constitutional decisions, is it?

MR NASH:   No, it is not dealing with reopening constitutional decisions, your Honour.  But it does arise, in fact, in relation to a case called Curran v Federal Commissioner of Taxation which was a constitutional decision.

HAYNE J:   Curran was tax.

GUMMOW J:   Contrived tax arrangements.

MR NASH:  But, with respect, although section 68(2) involves constitutional questions, section 68 is a statutory provision of the Commonwealth. It is not the same as the Constitution itself and if the decision was wrong the intention of Parliament should now be implemented. I draw the Court’s attention to Queensland v The Commonwealth which is referred to and which was a constitutional case.

The second limb of the argument relates to the decision in Rohde.  The decision in Rohde effectively says that section 68(2) can pick up the State legislation and then, with respect, fiddle with it.  The Court expressed the view – the majority of the Court expressed the view, if I could go to in Rohde ‑ ‑ ‑

GUMMOW J:  That is 161 CLR 119?

MR NASH:   Yes, your Honour, at page 125 at about point three on the page, three members of the Court took the view that once the jurisdiction had been given then the Commonwealth DPP Act stepped in to authorise delegation to authorise or to separate, if one likes to call it that, the jurisdiction from the way in which the application was made.  The Court has found that the power of the DPP to appeal stems from the jurisdiction of the Court to entertain an appeal to say that the legislature, the Commonwealth legislature, can then alter the incidence of that jurisdiction.  By allowing delegation, by abolishing time limits is in fact to alter, in our submission, the jurisdiction.

It is a bit like the curate’s egg.  The court says that part of it is good and this is what the Commonwealth will accept.  In fact, once that happens one of two things occurs.  Either the legislation has not been picked up or the State court is given the job of rewriting.  The jurisdiction is we say not like jurisdiction once those changes to the jurisdiction are created by Commonwealth legislation.  It can be framed in a number of ways.  It can be talked about as giving the court power to legislate or that the provision has not been picked up or that the jurisdiction sought to be exercised does

not, in fact, exist because it is not the jurisdiction which has in fact been picked up.

In our submission, Peel was wrongly decided.  It was wrongly decided for three reasons.  One, it was interpreted in the old‑fashioned way and without access to the parliamentary debates.  It was premised on an assumption that conviction included sentence.  It was premised on an assumption that, or rather a failure to consider the assumption that the common law, fundamental common law principles will not be overturned except by express words.  We would adopt the statements of Justice Deane in Rohde and the statements of Chief Justice Barwick in Peel in support of that proposition.  If the Court pleases, I still have a couple of minutes, but there is nothing else I wish to put to the Court.

GUMMOW J:   Yes, thank you, Mr Nash.

MS ABRAHAM:   Your Honours, in my submission for my friend’s argument to ultimately succeed would involve an overturning of Peel and Rohde and other cases like the more recent case of Gee because underlying my friend’s submission is a departure from the now well‑established principle as to the approach to the interpretation of section 68 and the purpose of section 68.  In my submission, my friend’s argument also probably challenges the concept that section 68 is both general and ambulatory in effect.  In my submission my friend attempts to overturn these decisions on the basis of arguments that were run in Peel and rejected in Peel and run in Rohde and rejected in Rohde and in my submission there is nothing new.  Rather, one is talking about a reagitation of the same issues.

In my submission when one looks at the factors that one would normally consider in determining whether to overturn a decision the factors tell against my friend’s argument.  Peel was a decision on the very point.  Peel did consider these issues.  It is a well‑reasoned judgment.  It has been applied for the last 38 years and clearly applied and so 38 years worth of, in effect, appeals by the Commonwealth have been heard as a result of the decision.  To challenge a decision in those circumstances, in my submission, is extreme and is a significant factor telling against why one would reconsider a decision of the court in any event, even if it was thought ‑ ‑ ‑

GUMMOW J:   If there had been an investment of federal jurisdiction to try Commonwealth crime in State courts, but there had been no provision made for appeal through the State system, would the result have been that there would have been an appeal directly to this Court under section 73?

MS ABRAHAM:   Yes, that may well be the result.  I must confess I have not considered ‑ ‑ ‑

GUMMOW J:   Well, it is that prospect that is moving what Sir Owen Dixon is talking about in these cases, I suspect, to some degree.

MS ABRAHAM:   In my submission, it is not because at the end of the day what was ‑ ‑ ‑

GUMMOW J:   What Sir Owen Dixon said favoured you, so without repudiating too quickly ‑ ‑ ‑

MS ABRAHAM:   Your Honours, at the end of the day obviously the issue of Crown appeals has been the subject of much debate.  Obviously Williams where there was the split court and then in Peel in 1971.  But fundamental in my submission to that was the conclusion that was reached and endorsed of recent times as to the purpose of section 68 because there were two alternatives as recognised once recently in Gee.  Obviously, Parliament could go down the path of having a uniform procedure across the Commonwealth, or it could do it uniform within the State for Commonwealth and State.  The Court has very clearly come down in the latter.  In fact it is hard to imagine, with respect, section 68 having any other alternative and my friend, with respect, does not suggest an alternative.

If that is a correct position then in my submission the argument falls away because if that is the position as endorsed in Gee then in my submission what one is dealing with is a general and ambulatory provision which well takes into account Crown appeals.  It clearly comes within the definition of section 68(2); it clearly comes within the definition of “appeal”.  In my submission my friend has raised no new arguments that would warrant the agitation of the very same issue that was decided. 

Your Honours, as I indicated at the outset in my submission all the factors in this case actually tell against the reagitation of the very issue that is now well settled and has been applied for a substantial period of time; I think it is 38 years.  If one looks at Peel, if one goes back as far as Williams one is looking in the order of 75 years worth of procedures taken in light of that section.  Those are my submissions.

GUMMOW J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, merely to say that Peel was not in issue in Rohde or in Gee or in Carngham.

BELL J:   But Gee is somewhat against you, one would think.

MR NASH:   It is somewhat against me, your Honour, but the actual issue of whether Peel should or should not be followed was not in issue.  I think it is Justice Murphy that makes that point.  What the Court was concerned with in Peel and in Williams was the 1932 amendment.  There was no question of what did section 68 intend to do, but the question was whether the amendment intended to bring the whole appeal structure of the State courts into the federal sphere or only intended to bring a certain part of it into the federal sphere.  The proposition that section 68 manifests an intention to go one way rather than the other does not militate against our argument.

In fact, that in some ways is part of the flaw, we say, of the reasoning of Sir Owen Dixon in Williams on which much of the reasoning in Peel is based.  The only other point I would make is that in Gee, your Honour, the question in issue is really what was an appeal, rather than were Crown appeals affected by the amendment. 

BELL J:   It was the point concerning the uniformity of the application of criminal process within a State that I had in mind as being somewhat against you.  Chief Justice Gleeson observed that the selection had been made in favour of uniformity within each State as the procedure for dealing with State and federal offences. 

MR NASH:   Yes, your Honour, and that actually is picking up what Sir Owen Dixon says in Williams.

BELL J:   Yes, indeed.

MR NASH:   If the Court pleases.

GUMMOW J:   Thank you, Mr Nash.  We will take a short adjournment.

AT 9.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.59 AM:

GUMMOW J:   No sufficient reason has been given to challenge the longstanding decisions of this Court which would stand in the path of success for the applicant in any appeal in this Court.  Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 10.00 AM THE MATTER WAS CONCLUDED