Scouller v The Queen

[1995] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 1995

B e t w e e n -

NEVILLE HUGH SCOULLER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 12.25 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:    If the Court please, I appear for the applicant.   (instructed by J.D. Weller & Associates)

MR J.A. GRIFFIN, QC:    If the Court please, I appear with my learned friend, MR G.R. RICE, for the respondent.    (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

DAWSON J:   Mr Wendler.

MR WENDLER:   The applicant’s application for special leave to appeal is defined and directed to four discrete areas.  The first area arose by virtue of an evidence ruling in the trial which was subsequently challenged in the Queensland Court of Appeal.

DAWSON J:   Do you need an extension of time in this matter, do you not?

MR WENDLER:   No, your Honours, not in relation to those grounds of appeal which concern the construction of the Australian Federal Police Act, the constitutional issue in the sentence issue.  The application for special leave to appeal as far as I am instructed ‑ ‑ ‑

DAWSON J:   It was in time, was it?

MR WENDLER: - - - was in time. It is only the separate discrete point which I will come to in a moment. The second ground concerning special leave to appeal arose by way of a procedural issue that emerged at the trial where the applicant sought the protection of section 99 of the Constitution. The third ground concerns a discrete issue in relation to whether or not there was a miscarriage of justice concerning the sentence and the final issue, to put it conveniently, is a point which relies on this Court’s decision in Ridgeway.

If I can come back to the first issue which concerns the evidence ruling.  Very briefly, your Honours, the first issue concerning the grant of special leave to appeal is a matter which is of some importance, in my respectful submission, to the administration of the criminal justice system because it concerns the question as to what extent the Australian Federal Police are obliged, by their own constituent Act, the Australian Federal Police Act to obey the laws of a State when investigating federal offences within a State.

DAWSON J:   But apart from the question of importance, there is a question of whether there is any inconsistency, is it not?  That is the point that you make, or that is the point that is made against you, rather.

MR WENDLER:   Quite so.

DAWSON J:   Where is the inconsistency?

MR WENDLER:   There is no inconsistency, in my respectful submission.

DAWSON J:   Where is there not any inconsistency, perhaps I should say.

MR WENDLER:   I should clear this up.  I am in no way suggesting that in some way the Invasion of Privacy Act, an Act of the Parliament of Queensland in some way overrides any federal legislation.  That is not the argument.

DAWSON J:   Let us get to the point.  The point that is made against you is that section 43(1) of the State Act which imposes the prohibition against interception applies generally without reference to police officers.  And it is said that, therefore, it is inconsistent with the Customs Act which provides for interception by means of a warrant or under a warrant which is granted under that Act.  If that is correct, then there is a clear inconsistency, is there not?

MR WENDLER:   There is.

DAWSON J:   And you say it is not.  Now, you tell us why.

MR WENDLER:   The relationship here, your Honours, is between the Australian Federal Police Act and the Customs Act.  In other words, the Customs Act does not in any way affect the application of the Invasion of Privacy Act.  In short, the Customs Act has no relevance to this argument because section 9(2) of the Australian Federal Police Act in fact orders the Australian Federal Police to obey a law of a State when investigating federal offences within a State.  Indeed, this issue was ‑ ‑ ‑

DAWSON J:   Section 9(2) only applies State law where there is a reference to a constable or to an officer of police.

MR WENDLER:   That is right, yes.

DAWSON J:   There is no reference to a constable or officer of police in section 43 of the State Act.

MR WENDLER:   Section 43 refers to persons.

DAWSON J:   Yes.

MR WENDLER:   That is right, and “persons” is a general statement; which is inclusive of police.

DAWSON J:   That is the argument, is it?

MR WENDLER:   That is the argument and, indeed, Justice Toohey, as I read his Honour’s judgment when his Honour investigated the operation of the Australian Federal Police Act and its relationship with the Invasion of Privacy Act in Coco v The Queen certainly appears to be suggesting that Justice de Jersey’s ruling initially in the trial of Coco was correct in so far as the opening words of section 43 are applicable to the Australian Federal Police when investigating offences in any particular State.  So, the bottom line submission is that the relationship between section 9(2) and the Invasion of Privacy Act of the State of Queensland, the submission is that the Customs Act has no application because the wording of the Customs Act is expressed as notwithstanding any law of a State of territory.  It does not say notwithstanding any other law or any Commonwealth law.  In other words, the situation as put by the applicant is that one federal Act can, of course, modify or affect another federal Act and there is no issue of inconsistency.

So that is the submission that the applicant seeks to pursue, that is the legal relationship between the Australian Federal Police Act and the Invasion of Privacy Act.  It is a further extension of some of the treatment given to the Australian Federal Police Act by his Honour Justice Toohey in Coco.

TOOHEY J:   What is the section of the Customs Act that is relevant?

MR WENDLER: Section 219B(4). In short, the work that section 9(2) performs is similar, in its operation, to - the only piece of Commonwealth legislation I can think of is the Commonwealth Places (Application of Laws) Act.

TOOHEY J:   Are you really facing up to the point that has been addressed to you as to the relationship between the State legislation and the Customs Act?  You keep taking us to the Australian Federal Police Act.

MR WENDLER:   Yes.  The Australian Federal Police Act, section 9 which is headed “Powers of Duties” and then section 9(2), the expression “where any provisions of the law of the State apply”. It is submitted that the work that 9(2) does is to, as it were, pick up a law of the State, in this case the Invasion of Privacy Act, in effect transmogrify that, imply it or assimilate it as if it were Commonwealth law.

TOOHEY J:   No doubt.  There is no other Commonwealth law speaking on the subject.

MR WENDLER:   Quite so.

TOOHEY J:   But there is one speaking on the subject here, is there not, namely the Customs Act?

MR WENDLER:   Yes, that is the argument put against the applicant ‑ ‑ ‑

TOOHEY J:   Well it is the argument you have to meet.

MR WENDLER:   Yes, it is certainly the argument that I am meeting in the sense that 219B is irrelevant, has no application because the wording in 219B is purposely worded in the way as it is expressed:

notwithstanding any law of a State or Territory. 

It does not say “notwithstanding any other law”.

TOOHEY J:   I am sorry, where do you find that?

MR WENDLER: Section 219B(4)(a). That expression is purposely drafted in that way because it was contemplated that some federal laws can modify or affect the operation of other federal laws. It is not expressed in the term “notwithstanding any other law” which specifically singles out laws of a State or of a territory. So, if the work that section 9(2) performs is similar in the way, for instance, the Commonwealth Places (Application of Laws) Act works, that it picks up the State law and transmogrifies it, as it were, and applies as if it were federal law ‑ ‑ ‑

DAWSON J:   It simply does not address the...... If you look at section 9(2) of the Australian Federal Police Act which is the section you rely upon, if it applies at all, it applies so as to make a reference in a State provision to a constable or an officer of police as including a reference to a member of the federal police.  The section which, under the State Act, prohibits the interception of messages, is a section which does not refer to a constable or to an officer of police.  It is a general prohibition and, on its fact, it is a general prohibition applying to members of the federal police.  But, when you look at the Customs Act in relation to that, there is a clear inconsistency between the Customs Act and section 43 of the State Act.

MR WENDLER:   That is only if the construction one puts on section 9(2) is not the style of construction that I am urging upon the Court.

TOOHEY J:   No, even quite apart from that, look at section 219B.  It makes it unlawful to use a listening device unless in paragraph (c):

he does so in accordance with a warrant issued to the agency under this Division.

This was a warrant, was it not, issued to the agency under this Division of the Customs Act?

MR WENDLER:   Yes, it was.

TOOHEY J: Well, forget about section 219B(4) and forget about the Australian Federal Police Act for a moment, is there not a clear inconsistency between that paragraph (c) of section 219B(1) and the State legislation?

MR WENDLER:   No, in my respectful submission, because section 9(2) has the effect of attracting a provision of the law of a State as if it were, so to speak, a Commonwealth law.

TOOHEY J:   It might do for its own purpose but this is a warrant issued under section 219B of the Customs Act.

MR WENDLER:   It is, but section 9(2) picks up that added provision of compliance with the State Act.

DAWSON J:   There are two points, then, put against you.  The one that I am putting is that section 9(2) does not affect the situation and the position that, even if it does, there nevertheless is an inconsistency.

MR WENDLER:   There is no inconsistency if 9(2) does the work of picking up the State law, assimilating it as if it were federal law, then there is a relationship between two federal laws.  There is no inconsistency if that ‑ ‑ ‑

DAWSON J:   Yes, I follow.

MR WENDLER: I am not, for one moment trying to undermine the inviolability of section 109 of the Constitution. This submission is concerned with the relationship between two federal laws, not between a State and a federal law. So, if the Court pleases, in Coco v The Queen, your Honour Justice Toohey at page 461 when discussing section 9(2) of the Australian Federal Police Act and its application to the circumstances of Coco, your Honour Justice Toohey said that:

Section 43(2) of the Act contains references consistent with pars (a) and (b) of s 9(2) of the Australian Federal Police Act.  The question however is whether any provision of a law of a State applies in relation to offences against the laws of the Commonwealth.

De Jersey J held that s 9(2) was applicable for the following reasons ‑

and then there is a further treatment by your Honour as to what those reasons were.  This first limb of the application simply seeks to examine further the extent of the applicability of section 9(2).

TOOHEY J:   That is dealing with the relationship of the Invasion of Privacy Act, a State statute and the Australian Federal Police Act, a Commonwealth statutes.  It does not touch the question of the role of the Customs Act in all of this.

MR WENDLER:   No, it does not.  But, once again, my submission is that the Customs Act really is irrelevant for the purposes of this particular ‑ ‑ ‑

DAWSON J:   It does throw up the problem.

MR WENDLER:   Certainly, the argument I have to meet, but nevertheless, it comes back to whether it is a situation concerning the legal relationship between a federal or State law or the legal relationship between two federal laws.  If we are dealing with the relationship between two federal laws, then it is open to argue or submit that no inconsistency arises.  One federal law is merely modifying another federal law.

DAWSON J:   I think we have the point.

MR WENDLER: Yes. The second matter concerns a matter of procedure which emerged at the trial when the applicant sought to rely on the protection of section 99 of the Constitution. Can I indicate to your Honours before I move any further with this ground of submission that there has been full compliance with section 78B of the Judiciary Act.

DAWSON J:   Yes, I note that.

MR WENDLER: Your Honours, this very short point emerged at the trial in this way: first, because the applicant was tried in the State of Queensland he was unable to make first an unsworn statement and in the State of Queensland, the laws of Queensland provide that if an accused person goes into evidence, then his counsel loses the right of reply. The applicant contended at his trial that he was not afforded the inviolable protection of section 99 of the Constitution. Put quite simply, the question becomes whether or not section 99 of the Constitution has a greater ambit of operation other than being limited to trade and commerce laws which give what might be described as a commercial preference in favour of one State or part thereof over another State or part thereof.

The submission the applicant wishes to make ‑ and in my respectful submission is a matter of some importance concerning the operation of section 99 of the Constitution ‑ is whether that guarantee or prohibition upon the Commonwealth had any applicability in the matters of procedure that emerged at the trial.

DAWSON J:   It was the Judiciary Act which gave jurisdiction to the Queensland court, was it not?

MR WENDLER:   That is right, your Honours.  The Judiciary Act, section 68 as it were, picks up the State procedures.

DAWSON J:   It would be hard to see how the Judiciary Act is a law of trade, commerce or revenue.

MR WENDLER:   It is not suggested that the Judiciary Act is a law of trade and commerce.  It could never be and I accept that.  What is simply put is this:  that the Judiciary Act cannot do indirectly what the Constitution prohibits directly. The Constitution prohibits directly trade and commerce laws which give a preference over one State or part thereof in favour of another State or part thereof and it is submitted that this preference can extend to matters of procedure where the trade and commerce law operates in such a way that it does give a preference, and a very tangible preference, over one State or part thereof.

This Court, your Honours, over the last five or six years has given full force and effect to those sections of the Constitution which can be described as guarantees or prohibitions. The applicant simply seeks to make submissions concerning section 99 and the ambit of its operation and seeks to open up again the older authorities concerning the treatment of section 99 of the Constitution. That is the short submission in relation to that section.

The next submission concerned what occurred in the sentencing process of the applicant.  Your Honours, I admit readily that this Court is reluctant often to give special leave to appeal in matters involving sentence.  That is not to say it would never give it, but in circumstances where there has been a miscarriage of justice, this Court certainly has been prepared to interfere in matters of sentence.  In the applicant’s summary of argument there was annexed what is described as annexure “A”.  What happened, very simply, was that whilst the applicant was awaiting sentence, he was incarcerated at the Brisbane City watch‑house.  During the time there, conditions were, put quite bluntly, appalling.  People were crammed into cells and living conditions were extremely uncomfortable.  During that time it so happened that a prisoner suffered a heart attack on two occasions;  the applicant rendered assistance, thus avoiding immediate controversy on that issue.  At the time in Brisbane, that was a fairly contentious issue about the conditions in the watch‑house.

A submission was made to his Honour that his Honour should take into account in some way that feature in relation to the applicant’s assistance.  His Honour, in his sentencing remarks, simply said:

I note your commendable assistance at the watchhouse but it does not warrant more lenient penalty for the offence. 

His Honour certainly noted or recognised the assistance, but what is complained of and what, in my respectful submission ‑ ‑ ‑

DAWSON J:   He did not take it into account.  He said so.

MR WENDLER:   No.

DAWSON J:   Now, you are running out of time.  We had that point, Mr Wendler.  You have another point to make, do you not?

MR WENDLER:   Yes, only that there were matters in relation to the Crimes Act whereby his Honour, we would submit, was obliged to take that matter into account.  Furthermore, there was no treatment of it at all by the Court of Appeal and that is the main complaint.

DAWSON J:   What about the Ridgeway matter?

MR WENDLER:   This matter arose because ‑ and I will try and get through this point as quickly as possible.  Your Honours, at the trial, the applicant certainly raised the issue of entrapment and the possibility of the exclusion of evidence by reason of it being obtained in improper circumstances.  It was not pursued because of the impediment of Ridgeway in the Court of Criminal Appeal ‑ ‑ ‑

DAWSON J:   Ridgeway was not an impediment, was it not?  Evidence can always be excluded.

MR WENDLER:   Quite so.  What Ridgeway did was reweight, as it were, those matters that need to be taken into the balancing exercise when the discretion ‑ ‑ ‑

DAWSON J:   But Bunning v Cross has been there for a long time.

MR WENDLER:   Quite so.  I am not suggesting ‑ ‑ ‑

DAWSON J:   And no Bunning v Cross point was taken at the trial.

MR WENDLER:   Yes.  I am not suggesting that Ridgeway did anything to Bunning v Cross other than it reweighted the emphasis upon certain aspects of the discretion.  It had never been seen in this country, the sort of language of disapproval that came out in Ridgeway of the activities of government officers in the circumstances of that case.  Ridgeway was decided in April of this year and that was ‑ ‑ ‑

DAWSON J:   You say you did not have the benefit of Ridgeway?

MR WENDLER:   No.

DAWSON J:   Well, I see your time has expired.  We have had the benefit of your written arguments, Mr Wendler.

MR WENDLER:   Yes.  Your Honours, I have concluded other than, in my respectful submission, all I say about the Ridgeway point is that there has been a miscarriage of justice; there is jurisdiction in this Court to entertain or consider a question of pure law and that is all it is on the evidence which is uncontroversial.  In short, there could have been no importation without the activity of the customs officer in that case.

DAWSON J:   Very well, yes.  We need not trouble you, Mr Griffin.

None of the points raised by Mr Wendler have, in the view of the Court, sufficient prospect of success to warrant the grant of special leave to appeal.  Special leave to appeal is accordingly refused.

AT 12.48 PM THE MATTER WAS CONCLUDED