Sen v The Queen

[2000] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M124 of 1999

B e t w e e n -

ALI SEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 11.17 AM

Copyright in the High Court of Australia

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

MR J.D. McARDLE, QC:   May it please the Court, I appear for the respondent with MS K.E. JUDD.  (instructed by Peter Wood, Solicitor for Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, this application raises matters of importance to the criminal justice system in two distinct areas.  The first area is this.  The application raises the question whether, and to what extent, a foreign penal judgment is applicable for the purposes of parity of sentencing; whether a court in this country is obliged at some level to take into account a foreign penal judgment for the purposes of parity of sentencing to avoid what is commonly described as a justifiable sense of grievance held by co-offenders when there has been disparity in the overall punishment regime.

McHUGH J:   But the Court of Appeal took the view that it was unnecessary to decide this question having regard to the meagre material respecting the proceedings in Turkey which were available to the court.  That being so, this is hardly a suitable vehicle to raise that issue.

MR WENDLER:   With the greatest of respect, that is not quite how it developed because, as your Honours know, the co-accused was successful in making out a plea in bar in relation to the charge, the Victorian charge, of theft.  That raises an anomalous situation.  It is adequate to raise a plea in bar, correct in law to use the foreign penal judgment to make out a plea in bar, yet it is of no consequence, or is totally inadequate, for the purposes of sentencing.  That is where the error of principle lies in the judgment of the Court of Appeal.

The Court of Appeal essentially said ‑ the legal effect of the Court of Appeal's finding in relation to the application of the foreign penal judgment was that it was wholly irrelevant.  It essentially embraced what the County Court judge did in relation to the sentence so far as the applicant was concerned.  In fact, the information that the Court of Appeal had concerning the foreign penal judgment was not inadequate and was extensive to the extent that some use could be made of it for the purposes of parity.

When one goes to page 165 of the application book, which contains that part of the judgment of the Court of Appeal that your Honour Justice McHugh alluded to a moment ago ‑ ‑ ‑

GUMMOW J:   Was there any evidence from any expert as to Turkish law?

MR WENDLER:   There was in the sense that the judgment of the foreign court was translated for the purposes of sentencing, but there was no expert called at the primary level of sentencing.

GUMMOW J:   No, no, it is a question of fact.

McHUGH J:   The critical question, and the one to which I referred you, is the sentence on 166 at line 9:

In my opinion, having regard to the information available, it is just not possible to follow these ramifications. 

MR WENDLER:   Yet, as I say, this is the anomaly.  It was enough for the purposes of making out a plea in bar - we are talking about the same foreign judgment ‑ it was enough to make out a plea in bar ‑ ‑ ‑

McHUGH J:   Yes, but you are talking about the Turkish Criminal Code and how it came about that the co-accused was sentenced in accordance with the terms of that, and the court took the view that it just did not have the relevant information or enough information.

MR WENDLER:   It had information - or enough information to take on board at some level, for the purposes of parity of sentencing.  It is not as if there was zero information, zero useful information, for the purposes of sentencing.  This is the point of principle that arises.  When one goes to page 165, for instance, the court had a translation of the foreign judgment, at about line 40.  Both the sentencing court and this court were supplied with a translation of the Turkish court order.  We see that statement or observation by the Chief Justice at line 40.  Further, his Honour says:

It appears Mutlu -

the co-accused -

was sentenced, not for theft, but for either "defrauding" or "being an accessory to defrauding" under Article 3 of the Turkish Criminal Code. 

Further on in that passage ‑ ‑ ‑

McHUGH J:   But he said:

It is possible he was treated as an accessory to Askit but this is not clear......No information was available as to whether this reduction was discretionary or compulsory.  The same applies to an increase in the sentence by the Court because of the monetary amount.

MR WENDLER:   Yes, I see all that, but once again, this was exactly the same material that was used to justify the plea in bar in relation to the co‑accused.  It is a fact that courts in this country from time to time, certainly the Court of Criminal Appeal in New South Wales, has relied on a foreign penal judgment for the purpose of determining the antecedents of a particular person coming up for sentence, and Postiglione, which is mentioned in the judgment of the learned Chief Justice, is one of those cases.  So a foreign penal judgment does have some relevance.  It is not as if it is totally and utterly irrelevant for the purposes of a parity of sentencing.  The information that was before the Court of Appeal was not information from which some legal effect could be drawn upon the circumstances of the sentencing of the applicant.  The Court of Appeal approached it on the basis, well, it is just wholly irrelevant.  I mean, that is the reality of what the Court of Appeal did here.  It did exactly what the trial judge - the sentencing judge did in the circumstances.

Your Honours, from time to time courts are faced with a situation where there has been criminal courts - persons who have poor antecedents, for example, in a foreign jurisdiction or are persons who, in this country, stand for sentence in circumstances where co-accuseds have been sentenced in another jurisdiction.  They are matters of some importance to the law of sentencing, as to how a court should be obliged to handle a foreign penal judgment.  So that is the nature of the first limb of the application for special leave to appeal.

The application has a second limb and complains of the construction placed by the Court of Appeal on an important provision of the Juries Act for the State of Victoria. Section 51A of the Juries Act modifies the common law position in relation to the moment when a jury is charged to consider its verdict and circumstances where the jury can separate whilst considering its verdict. Section 51A ‑ ‑ ‑

McHUGH J:   But once the jury is sworn, why has the judge got to keep re‑swearing them every time they separate again and, indeed, in this case, he reminded them of the oath.  I mean, you do not re‑swear a witness every time there is an adjournment.  A witness may be in the witness box for a month.  The initial oath is ‑ ‑ ‑

MR WENDLER:   But there is some level of formalism in relation to reminding a witness that he has bound his conscience by virtue of ‑ ‑ ‑

McHUGH J:   In this case, the oath was administered to the jurors.  When they separated on the second occasion the judge reminded them of their oath.

MR WENDLER:   Yes. I accept all that. The only problem is that section 51A(2) uses the words "may only allow" and it is the word "only" which, in the history of the construction of this section, has not been at all recognised, the force of that particular word "only".

GUMMOW J:   You want to challenge Patton, do you not?

MR WENDLER:   That is right, yes.

GUMMOW J:   That has stood for four years now in Victoria.

MR WENDLER:   That does not mean it is correct. The situation in relation to section 51A, and so far as Patton is concerned, is that the court for some reason has read down section 51A(2) in such a way that the word "only" allow has not been given its true and proper legal effect. Section 51A is a direction, a mandatory direction, for the court, that that formalism which precedes an order permitting the jury to separate must be observed on each occasion the jury separates. There is very good reasons for that, especially in trials which are controversial, which are long, which attract enormous media coverage ‑ ‑ ‑

GUMMOW J:   What about ones that are not?

MR WENDLER:   It does not matter, your Honour.  But that section is there in circumstances which go to remind the jury of their solemn obligation and responsibilities to the accused and to the State, that they should not discuss the matter with anyone but themselves.

McHUGH J:   But you start off, subsection (1) of section 51A says:

the court may, in its discretion, allow the jury to separate -

Then subsection (2) says:

A court may only allow a jury to separate.....if each juror has given to the court an undertaking on oath or by affidavit not to discuss with any person -

the matter.  Why should that have to be done on every occasion?

MR WENDLER:   Because of the words "may only allow a jury to separate" in the terms set out in the section.

McHUGH J:   Yes, well ‑ ‑ ‑

MR WENDLER:   It is a mandatory direction by the Parliament that this is the procedure that needs to be followed or needs to be complied with before the discretion that is given to the judicial officer in 51A ‑ ‑ ‑

GUMMOW J:   It turns on the temporal force of the word "gives".

MR WENDLER:   And, of course, the word "only" allow.

GUMMOW J:   It was given here.

MR WENDLER:   Yes.

GUMMOW J:   You say it had to be given again?

MR WENDLER:   That is right.

McHUGH J:   And again and again.  Every time the jury separate they have to be given this ‑ ‑ ‑

MR WENDLER:   Yes.  It may only be that they separate once or twice and the reality of a trail situation ‑ it is not as if jurors in most criminal trials are out for many days.  This section covers the circumstance and adds an extra layer of, as it were, protection against one of the greatest threats to fair trial process in this country, namely media coverage and the intrusiveness of the media and situations of that kind.  In fact, also, the fact that ‑ ‑ ‑

McHUGH J:   Well, requiring them to take the oath on every occasion is not going to protect them from the media because the oath is directed to discussing the case with persons other than the other members of the jury.

MR WENDLER:   And directed at protecting the issue of indifference. In other words, the jury are obliged by their oath to be indifferent to everything other than the evidence. Now, it is my respectful submission that the construction given hitherto by the Court of Appeal in relation to section 51A is attended with sufficient error to justify, in the circumstances, a grant of special leave in relation to the construction of section 51A of the Juries Act.  That is an important Act which goes to the heart of trial procedure and, by itself, is capable of justifying a grant of special leave to appeal.  If the Court pleases.

McHUGH J:   Thank you, Mr Wendler.  We need not call on you, Mr McArdle.

The applicant seeks to challenge the construction given to section 51A of the Juries Act 1967 (Vic) by the Court of Appeal of that State in Patton & Ors (1996) 88 A Crim R 365. We are of opinion that Patton was correctly decided.  The applicant also submits that regard should be had in fixing the applicant's sentence to a sentence imposed on a co‑offender by a foreign court.  The Court of Appeal, in our view, correctly decided that it was unnecessary to determine whether principles of parity in sentencing required consideration of the sentence imposed by the foreign court, given the meagre material respecting the proceedings in that court which was available to the sentencing judge.  In those circumstances, special leave to appeal is refused.

AT 11.33 AM THE MATTER WAS CONCLUDED