St v Kelly

[2009] HCATrans 175

[2009] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S15 of 2009

B e t w e e n -

ST

Applicant

and

ANDREW KELLY

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 9.36 AM

Copyright in the High Court of Australia

MR S.E.J. PRINCE:   May the Court please, I appear for the applicant.  (instructed by Parish Patience Immigration, Lawyers)

MS W.J. ABRAHAM, QC:  May it please the Court, I appear with my learned friend, MR L.K. CROWLEY, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.  The special leave point in this case is a relatively confined one and that is, what is a proper construction of section 20BQ of the Crimes Act (Cth) and whether or not it otherwise provides so as to exclude section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) being picked up in relation to federal offences by section 68 of the Judiciary Act.  The test is the test in Putland, your Honours, and there is no real dispute about that, although there is different views on each side as to what Putland ultimately leads to in terms of this particular case, but what sits beneath Putland really is a proper construction of section 20BQ.

GUMMOW J:   The section is set out at page 136, is that right?

MR PRINCE:   Yes, your Honours.  His Honour Justice Rothman held that section 20BQ did not otherwise provide for the purpose of section 68 so as to preclude section 32 of the State Mental Health (Criminal Procedure) Act being picked up.  The Court of Appeal found that it did.  There seemed to be two streams of reasoning in the Court of Appeal, although their Honours express agreement with each other’s judgments, but in the decision of the President, his Honour appears to have focused on the comprehensiveness of section 20BQ as effectively displacing or otherwise providing for the picking up of anything that dealt with the same subject matter, or similar subject matter, whereas his Honour Justice Handley appears to have looked more towards the direct collision type approach described in Putland by reason of the application of the maxim of expressio facit.

His Honour Justice Ipp agreed with both Justice Allsop and Justice Handley.  His Honour Justice Allsop expressed agreement with his Honour Justice Handley, although expressed reservations about the applicability of the maxim to the construction of statutes from different legislatures.

GUMMOW J:   Yes.  You will have to explain to us why there is a real likelihood that the President’s reasoning should not be accepted.

MR PRINCE:   Can I take your Honours to that reasoning?  The President undertakes an analysis of the creation of section 20BQ which was part of Part 1B which was inserted into the Commonwealth Crimes Act.  That analysis goes back to and includes the Australian Law Reform Commission Report on Sentencing (Report No 44, 1988), which was also referred to in Putland.  The same division of the Crimes Act dealing with sentencing and other matters relating to federal offenders was the subject matter of the proceedings in Putland.

HAYNE J:   Recognising all that to be so, where in the President’s reasoning do we most conveniently find what you assert to be the error?  Where does his Honour go wrong.

MR PRINCE:   If your Honours go to page 115, paragraph 25.  Ultimately, the essence of his Honour’s reasoning comes down to the conclusion that:

the “new provisions” on their face were an apparently complete regime for the approach by magistrates to the subject matter of diversion.

In my submission, the terms of the section do not support that conclusion.

GUMMOW J:   Why not?  Sooner or later you have to get to the text.

MR PRINCE:   Yes.  Can I take your Honour back to section 20BQ then, which is I think reproduced in the judgment?

GUMMOW J:   Page 136.

MR PRINCE:   Yes, thank you, your Honour.  Section 20BQ deals with:

proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence –

and enables or empowers a court to make a range of orders, what are commonly called mental health diversionary orders, taking a person away from a criminal justice system in certain circumstances.  The section was enacted at a time where there were two state regimes dealing with diversionary mental health orders.  This type of regime is different to sentencing alterations by reason of mental health or acquittal on the basis of mental health, both of which are facets within the criminal justice system.

This seems to be an innovation which occurred in New South Wales and Queensland, first, which allowed for, effectively, a diversion prior to the dealing with the criminal justice system.  In my submission, in order for section 20BQ to be read as an exhaustive code or a section which precluded the operation of other more beneficial provisions dealing with mental health diversionary orders ‑ ‑ ‑

GUMMOW J:   It is really paragraph 27 of the President’s reasoning, is it not, on page 117?  Is that not the nub of the case?

MR PRINCE:   Yes, the conclusion is stated but there does not appear to be much more than that.  With the greatest respect to his Honour, what appears earlier is a reference to the explanatory memorandum of the enactment of Part 1B.  Could I just take your Honours quickly to that?  It appears at 23 and 24 of his Honour’s reasons at page 114 of the application book.  His Honour extracts one of the elements of the explanatory memorandum.

The full explanatory memorandum is reproduced in Putland.  I will take your Honours to it if necessary.  It was said in the first two pages of the explanatory memorandum that there were 13 objects of the legislation.  Each object appears to correspond to a particular division within the part.  They seem to be self‑contained but they are expressed in different language so what your Honours will see in respect of item 3 is a much more express type of indication of an intention to have a separate or stand alone regime dealing with “federal non‑parole periods rather than relying on applied State or Territory legislation”.

There was some discussion in Putland about the purpose of Part 1B in remedying the mischief that had arisen by reason of the difference between the federal and State sentencing regimes dealing with non‑parole periods or minimum periods and it seems that that was principally what the legislation was most comprehensively directed to.  Part 8 or item 8 which is reproduced by his Honour in paragraph 24 on page 114 is a relevant provision dealing with Division 8, in which section 20BQ appears.  That is:

to provide new procedures for magistrates courts when dealing summarily with federal matters where the defendant is mentally ill or intellectually disabled –

there is nothing there in the language that would indicate even a similar type of intention to that in respect of item 3.

GUMMOW J:   Now, this is national legislation, Mr Prince.

MR PRINCE:   It is, your Honour.

GUMMOW J:   What do you say about the point made by your opponent at page 147, paragraph 14?  The world is wider than New South Wales.

MR PRINCE:   I do accept that, your Honour.

GUMMOW J:   What do you say about paragraph 14?

MR PRINCE:   Indeed, Queensland had similar legislation at the time, but that factor works in favour of the construction that I urge on your Honours because the federal legislation was coming to a diverse set of State regimes, none of which included the current form of section 32.  Section 32, which deals with mental illness at the time of the alleged offence, is a development after section 20BQ was enacted.  So that section 20BQ was an attempt to provide the advantages existing in New South Wales and Queensland to federal offenders in other States that did not have similar legislation.

That is not a purpose which is to say that any further development of the law in a beneficial way in other States down the track is thereby precluded or excluded.  It provides what was said in the Australian Law Reform Commission Report to be a stopgap measure.  The Australian Law Reform Commission Report is extracted by his Honour the President at page 113 of the application book, and over to page 114, your Honours.  So that, in my submission, what was happening when Part 1B was enacted was not any intention to create an exhaustive code but rather an attempt to provide a stopgap measure to allow federal offenders in States other than New South Wales and Queensland – to a lesser extent in Queensland – to have the benefit of that advance in the criminal justice approach to mentally ill – or persons who are charged but suffer from a mental illness.

That is a different proposition to saying that there was some intention evinced in the legislation to exclude any further more beneficial development.  I think I am repeating myself, your Honours.  In my submission, there is nothing either in the terms of the legislation itself, which incidentally incorporates by reference the laws of a State in relation to mental health.  One does not see from that section any indication of any intent to exclude the operation of any more beneficial legislation, and indeed it is in a similar situation to the aggregation of sentencing which was dealt with in Putland in the sense that there is a gap, as it were, in the federal legislation which is dealt with or covered by the State legislation.

His Honour Justice Rothman found more fundamentally that there was really no overlap, as it were, in the case of persons who were mentally ill at the time of the alleged offence being committed but not at the time of the hearing.  If the construction were correct that this was to exclude the operation of any other provision then the legislation should say, in these circumstances and no other circumstances these orders can be made, but it is clearly beneficial in nature.  Unless there is any other matters that I can assist your Honours with?

GUMMOW J:   Thank you.  Yes, we do not need to call on you, Ms Abraham.

There are no prospects of success on an appeal to displace the decision of the New South Wales Court.

Before we for further, I think you needed an extension of time.

MR PRINCE:   I did, your Honours.  I should have mentioned it.  My friend has indicated that it was not opposed.

GUMMOW J:   Very well.  We grant the extension of time, but refuse the application for special leave.

MR PRINCE:   Thank you, your Honours.

AT 9.50 AM THE MATTER WAS CONCLUDED