SLD v The Queen

[2004] HCATrans 501

[2004] HCATrans 501

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S576 of 2003

B e t w e e n -

SLD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 11.25 AM

Copyright in the High Court of Australia

MR P.R. ZAHRA, SC:   If your Honours so please, I appear for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC:   If it please the Court, I appear for the respondent with my learned friend, MS A.M. MITCHELMORE.  (instructed by Acting Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Zahra.

MR ZAHRA:   Thank you, your Honour.  Your Honours, this application touches upon the process of resolution by a sentencing judge of the various tensions between the purposes of sentencing that were referred to in this Court’s decision in Veen [No 2].  Those stated purposes were recognised to overlap and that they cannot be considered in isolation and they are guideposts that sometimes point in different directions.

This application particularly concerns the assessment of whether an offender is a danger to society, such that if a finding is made that it would require the resolution of the tension in the sentencing process to be resolved in favour of the protection of society.  This application concerns the processes by which an issue in relation to the evidence of dangerousness is to be resolved.

There is some guidance, but limited guidance, in Veen [No 2] as to how this resolution might be determined.  Essentially, the process by which a determination is to be made is guided by two relevant principles.  Firstly, that an individual’s prior criminal history can be taken into account in determining a sentence where the offender has shown a continuing attitude of disobedience to the law, however, there is a limitation that it should not be taken so much into account that the sentence imposed is disproportionate to the gravity of the immediate offence.  Secondly, that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of such offences.

The proper determination of future dangerousness, therefore, is critical to the sentencing process.  Where there is a need to protect society and where that need is paramount then it will tend to increase the penalty to be imposed within the confines of fixing a proportionate sentence.  Secondly, therefore, a finding that an offender presents a risk of re‑offending, a finding when made against an offender will tend to increase the sentence to be imposed.

This application, therefore, is concerned with the standard of proof of future dangerousness.  It is argued in written submissions that the requisite standard of proof is proof beyond reasonable doubt.  The written submissions, as a starting point, refer to the Victorian Court of Appeal’s decision in R v Storey which states that:

the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt –

At the outset might I submit that it is accepted that the relevant question involves an assessment of the risk of offending beyond reasonable doubt, not that there must be proof beyond reasonable doubt that an offender will offend.  The Crown in their written submissions have conceded that proof beyond reasonable doubt is the requisite standard.  Where there is residual disagreement is whether the decision in the Court of Criminal Appeal in the present matter has held that future dangerousness must be proved beyond reasonable doubt and whether the merits of this appeal before the Court of Criminal Appeal proceeded according to some lesser standard of proof.

Can I take your Honours to the written submissions of the Crown where it appears clearly the Crown accepts that the relevant standard of proof is proof of the risk of offending beyond reasonable doubt.  Can I take your Honours to application book 88 at about line 33, paragraph 3.1 of the Crown’s written submissions where the Crown’s submissions state:

The CCA did not hold that a finding of future dangerousness does not require proof beyond reasonable doubt.  The CCA held that a finding of dangerousness does not require certainty about future conduct, because that finding does not entail a prediction that the offender will in fact re‑offend, it is a finding about the risk or likelihood of re‑offending.

We would agree with that particular statement.  However, we would disagree that the Court of Criminal Appeal did not hold that a finding of future dangerousness does not require proof beyond reasonable doubt.

Can I take your Honours then to application book 89, line 14, the Crown’s submissions at paragraph 3.4 where they refer to comments made in their submissions, particularly at paragraph 3.3.  Might I say, your Honours, that the submission in 3.3 is a matter again that we would agree as a general statement of the law where the Crown notes:

In accordance with those principles, The CCCA held that while it was not possible to be certain whether an offender would in fact re‑offend, that did not mean that the risk of future offending should be disregarded . . . The CCA explained that the finding of a risk of re‑offending was not based on a finding, on the criminal onus, that the applicant would in fact commit acts of serious criminality in future, as it was seldom possible to make predictions about future conduct beyond reasonable doubt . . . 

3.4      These comments were about what is entailed in a finding of risk or likelihood of re‑offending, not about the standard of proof to be applied in making a finding of likelihood.

Can I briefly also on this point move to paragraph 3.5 of the Crown’s written submissions where there was in a fact a quote at some length of the decision of the Supreme Court of Canada in Lyons.  Again, we would agree with the general proposition that is referred to in that extract to the effect where his Honour Justice La Forest said:

I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm.”

Can I indicate also, your Honours, that at paragraphs 3.6 and again at 3.20 that again the Crown states as a matter of principle that the appropriate standard is proof beyond reasonable doubt but goes on to say that the decision of the Court of Criminal Appeal correctly applied those principles and to reduce our argument to a narrower point the question is whether that decision does maintain what the Crown indicates and what we say is the appropriate law and that is that there must be proof of future dangerousness beyond reasonable doubt.

There are two particular paragraphs of the Court of Criminal Appeal judgment that particularly highlight the point that is made that this decision suggests that some lesser standard than proof beyond reasonable doubt is to apply in the assessment of future dangerousness.  Can I take your Honours to the judgment of the Court of Criminal Appeal, firstly, at application book 68, line 25.  The judgment there notes:

Thus a finding that a prisoner is likely to re‑offend does not even require a finding that it is more probable than not that he will do so, let alone a finding –

and it goes on.  Secondly, at application book 71, paragraph 40, at about line 1:

A sentencing judge is not bound to disregard the risk that a prisoner would pose for society in the future if he was at liberty merely because he or she cannot find on the criminal onus that the prisoner would re‑offend.

We would agree with that statement.  However, the judgment then goes on to say;

The view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen [No 1].

The written submissions say that in fact this is an incorrect statement of principle and we will return to some of that ‑ ‑ ‑

GLEESON CJ:   Where do you find the error in the primary judge’s reasoning?

MR ZAHRA:   Your Honour, in the judgment at application book 48 at about line 7.  His Honour went on to say because of the difficulty in having to proceed with the matter at that point in time rather than to delay the proceedings he goes on in the facts of the case to say that:

The only alternative, as I see it, is to impose a significant head sentence which would reflect my assessment that the present offence fell into the upper range of objective seriousness, and that SLD poses a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences.

GLEESON CJ:   Presumably what he did was impose a high head sentence and then a non‑parole period much lower than the head sentence which would give the parole authorities an opportunity to look at the question.

MR ZAHRA:   Yes, but in our submission what his Honour has clearly done is arrived at a conclusion that we had argued before the Court of Criminal Appeal that was not available on the evidence and we argue that the Court of Criminal Appeal appears not to have considered that argument on its merits because in fact it applied a standard which is a standard less than proof beyond reasonable doubt.

Returning to what I might narrowly confine the issue to, and that is whether this decision can now be taken as authority for the proposition that some lesser standard of proof than proof beyond reasonable doubt is satisfactory.  The list of authorities refers to a decision of R v McNamara.  Do your Honours have a copy of that?

GLEESON CJ:   Yes, I have it here, it is second in the bundle.

MR ZAHRA:   The decision of McNamara which was in fact subsequent to SLD concerned a Crown appeal against a sentence imposed for manslaughter.  There was in fact previous history of violence and the issue was in the context of another relationship whether there may be further acts of violence.

The Crown had submitted the finding that there was a reasonable prospect that the respondent would not re‑offend was inconsistent with the available evidence which demonstrated a propensity for violence exemplified by the facts of the instant case and previous attacks.  The raising of this issue led to a debate about the standard of proof to be applied by a sentencing judge.  Can I take your Honours to page 5 of McNamara at paragraph 20 at the bottom of the page where his Honour Mr Justice Grove said that:

The raising of this issue led to debate about the standard of proof to be applied by a sentencing judge in order to make a finding of future danger to the community which an offender represents.  Observations by members of this Court, differently constituted from time to time, are not entirely harmonious.

This is one issue that we would argue, that in fact this case is an appropriate vehicle to address what appears to be a divergence of opinion within the Court of Criminal Appeal.  His Honour then, at paragraph 21, over the page, had referred to the decision of R v Barton, in particular, a passage from his Honour, then Acting Chief Justice Kirby.  Can I take your Honour to parts of that particular passage at about point 2 where his Honour in that case indicated that:

The onus of establishing the nature of the deterrence alleged and the level of any propensity lies on the prosecution.  It must establish contested matters to the criminal standard of proof.

Then, the last paragraph of that extract, in turning to the individual circumstances of that case his Honour went on to say:

It seems to me that it is here that his Honour may have taken an approach which led him to take into account his perspective of future dangerousness by a standard which was less rigorous than that which the law requires.

GLEESON CJ:   With which particular part of Justice Badgery‑Parker’s judgment did Acting Chief Justice Kirby disagree?

MR ZAHRA:   Your Honour, there were references to the psychiatric evidence in Barton and the conclusions of the psychiatrist as to whether she presented a continuing danger to the public.

GLEESON CJ:   What is wrong with what Justice Badgery‑Parker said?  Where is the mistake?

MR ZAHRA:   Your Honour, the question was the issue of proof as to whether the evidence suggested that there was a need for a substantial sentence to be imposed, from the community’s point of view, to punish behaviour because it was strongly suggestive that she is likely, after release, to represent a source of danger to others.  His Honour went on to conclude that those conclusions, strongly suggestive, might have suggested that his Honour applied:

a standard which was less rigorous than that which the law requires.

Mr Justice Grove then went on to refer to the decision of R v Gieselmann.  That is referred to at paragraph 22.  I might briefly read that:

“In considering the significance of the evidence touching on whether the applicant would remain a danger to others in the future by reason of her mental disorder, and for how long in the future, the learned judge reminded himself that the Crown must prove this matter beyond reasonable doubt.”

His Honour then goes on to refer to this decision in the Court of Criminal Appeal and refers to the cases that the court referred to in reaching the conclusion that all of the decisions of this since Veen [No 1] have not suggested that proof beyond reasonable doubt is required.  Your Honours can see that the extract from this present case that his Honour relied on is to the effect that:

“Thus a finding that a prisoner is likely to re‑offend does not even require a finding that it is more probable than not that he will do so, let alone a finding that this has been established beyond reasonable doubt”.

Again, in McNamara the respondent argued, again the starting point being R v Storey, the extract to which I have referred to a moment ago and at paragraph 27 counsel argued before the Court of Criminal Appeal that the test there was:

“whether the offender poses the risk of relevant future conduct” and that the correct approach is for a judge to determine whether he is satisfied beyond reasonable doubt that such risks exists.  With respect to the contender, I do not find that formulation useful.

At paragraph 28 in the last sentence:

What is of concern to a sentencing judge is, in my opinion, not the existence of risk ‑ that I would see as a given – but a degree of risk.  That does not require the certitude of proof beyond reasonable doubt nor the exercise of balance to determine what is more probable than not.

At paragraph 29 his Honour goes on to say:

That a mere “tilt” on the balance of probabilities would lead to one offender having the likelihood of future offence taken into account (adversely) but another, falling just short of a “tilt,” being found unlikely to offend does not reflect an even handed application of justice.

Then, clearly, at paragraph 30, revealing the divergence of view within the Court of Criminal Appeal:

It follows that I prefer the views expressed by Handley JA in SLD to the contrary expressions in Barton and Gieselmann.  This appeal does not turn on that preference.

It is in fact our submission that clearly this present authority, contrary to the written submissions of the Crown, has been relied on to suggest that there is in fact a lesser standard of proof than proof beyond reasonable doubt and it may even be the case that this authority might be taken to suggest that a finding that is more probable than not is in fact not also required, that it is a matter of determining a degree of dangerousness without reference to proof beyond reasonable doubt.

The Court of Criminal Appeal referred to a number of decisions in ultimately concluding that the view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen [No 1].  In our written submissions at application book 84 go on to refer to those decisions.  Malec v Hutton was in fact a case involving the assessment of damages.  A number of other authorities referred to the specific provisions of statutory schemes.  In the present case there was quite some doubt about future dangerousness.

GLEESON CJ:   Partly because of his age.  He was only 15 at the time he was being sentenced, was he not?

MR ZAHRA:   Yes.  In fact, he was 13 years 10 months at the time of the offence and the Crown psychiatrist, Dr Waters, had indicated his level of intellectual functioning at the time of the commission of the offence was between 10 and 10 and a half.  Your Honour, his Honour, clearly, was in quite some difficulty because of the particular circumstances of this case. 

For example, can I take your Honours to application book page 47 where his Honour had considered various options and he had indicated:

As the law presently stands, I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that none of the psychiatrists or psychologist who have examined SLD and who have given evidence, can be certain what the future holds, or what truly motivated him.

GLEESON CJ:   Yes.  Thank you, Mr Zahra.

MR ZAHRA:   Thank you, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Cogswell.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case.  The application is dismissed.

AT 11.46 AM THE MATTER WAS CONCLUDED