Strachan v Graves

[1998] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H5 of 1998

DAVID CAMPBELL STRACHAN

Applicant

CAROLINE MAY GRAVES

Respondent

Application for bail and/or expedition

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 JUNE 1998, AT 10.33 AM

Copyright in the High Court of Australia

HIS HONOUR:   Sorry to have delayed you, ladies and gentlemen.  Other business was occupying me.  Yes, call the first matter.  Yes, Mr Wendler?

MR G.D. WENDLER:   Yes, if the Court please, I appear for the Applicant.  (instructed by Butler McIntyre and Butler)

HIS HONOUR:   Mr Director?

MR D.J. BUGG QC:   Yes, thank you, if your Honour pleases, I appear for the Respondent.  (instructed by the Office of Public Prosecutions (Tasmania))

HIS HONOUR:   Yes, Mr Wendler?

MR WENDLER:   If the Court pleases.  Your Honour, before the Court this morning is a summons supported by an affidavit with three annexures.  The summons seeks orders that the Applicant be admitted to bail; in the alternative, that his application for special leave to appeal be expedited.  Your Honour, the inquiries concerning a possible date for the application for special leave to appeal from the judgment of the Full Court of the Supreme Court of Tasmania reveal that the application may be heard at some time in September of this year.  By that time the Applicant would have virtually completed a sentence of imprisonment which he is serving at the moment of six months, which was imposed last year.  There is one threshold matter which it may be appropriate to raise before your Honour before I move to the merits of the application.  Can I invite your Honour to section 23 of the Judiciary Act?

HIS HONOUR:   Yes.

MR WENDLER:   Your Honour, section 23 of the Judiciary Act appears to contemplate that on questions affecting the constitutional powers of the Commonwealth, a court consisting of not less than three justices must be involved in that process.  The two critical matters, your Honour, two relevant critical matters in this application are, first, the preservation from futility of the special leave process; in this case, the expiration or almost the entire expiration of the sentence of imprisonment before the application for special leave to appeal is heard.  The second matter arises really indirectly; that is, the prospects of success of the matter sought to be agitated on the application for special leave to appeal, and that is a matter which involves - where certainly indirectly involves - the Constitution or its interpretation because the Applicant seeks to attack the legality of an enactment in the state of Tasmania, which is ‑ ‑ ‑

HIS HONOUR:   I understood, rather, the attack was on the exercise of discretion by the Full Court to decline amendment to a Notice of Appeal.

MR WENDLER:   That is right.

HIS HONOUR:   You raise a ground lately.

MR WENDLER:   That is right, but that ‑ ‑ ‑

HIS HONOUR:   Yes, the ground which it was sought to raise was one which may involve constitutional questions, but the immediate subject of the application for leave, as I understand it, is an attack on the order of the Court refusing the application for leave to amend.  Am I wrong?

MR WENDLER:   No, I accept that analysis, your Honour.  However, in the process of determination the Full Court of the Supreme Court of Tasmania had to consider the prospects of success, one assumes, of the Constitutional issue.  That was when ‑ ‑ ‑

HIS HONOUR:   As to that, Mr Wendler, as I understand the point that it is sought to agitate, it is that the Fisheries (Amendment) Act 1995 (Tasmania) represents some impermissible interference with judicial power.  Does that Act in its terms purport to undo any final decision made by the Courts of Tasmania?

MR WENDLER:   Yes, it does.

HIS HONOUR:   How?

MR WENDLER:   What it does is it attacks the - the legal effect of it is to attack the finality of the decision.  By attacking the ‑ ‑ ‑

HIS HONOUR:   How is that?  Is the verdict and sentence imposed in the earlier case, the name of which escapes me ‑ ‑ ‑

MR WENDLER:   Graham v Davies, I think.

HIS HONOUR:   Yes.  Is that affected?

MR WENDLER:   Well, it is legally because ‑ ‑ ‑

HIS HONOUR:   Why?  The verdict stands.  The sentence, I take it, stands.  Or it was a verdict of acquittal, was it not?

MR WENDLER:   It was a finding on a motion to review the legality of the conviction in a Magistrates' Court.

HIS HONOUR:   Yes.  Is that undone?

MR WENDLER:   Well, it is because ‑ ‑ ‑

HIS HONOUR:   Why?

MR WENDLER:   Because the legislation, section 5, says that the regulation is deemed to be valid and always has been valid.

HIS HONOUR:   I understand that.  How does that affect the proceeding in that earlier case?

MR WENDLER:   Well, the purpose of the legislation was to focus upon that decision solely and attack the finality of that decision.  In fact, in the judgment of his Honour Underwood J which is annexed to the affidavit - it may be appropriate to invite your Honour to that.  Can I invite your Honour to what is identified as Exhibit C to the affidavit of Phillip Anthony Kimber?

HIS HONOUR:   Yes, I have that.

MR WENDLER:   At page 5 of the reasons for judgment of his Honour Underwood J - I invite your Honour to that page.

HIS HONOUR:   Yes.

MR WENDLER:   The paragraph that commences, "There is no substance in either of these arguments," his Honour finds that:

The terms of that section and the terms of the preceding section enlarging the regulation‑making power of the principal Act clearly show that Parliament intended section 5 to refer to regulation 44(1)(ac) and retrospectively validate it.  Reference to the second reading speech on 19 October dispels any suggestion to the contrary.

HIS HONOUR:   There is no doubt, at least at first blush, that the intention of the Parliament was to do something that had both retrospective and prospective effect.  That is not startling or remarkable.  Does section 5 say anything about Graham v Davies; that is, are the rights or obligations of the defendant in that proceeding, the accused in that proceeding, in any way affected by section 5?

MR WENDLER:   Technically they would be.  He could technically be recharged subject to any plea in bar that he might ‑ ‑ ‑

HIS HONOUR:   I would have thought there might be just a little debate about plea in bar, Mr Wendler, and I would have thought that - again it is a matter of uninformed impression - there might be more than a little, it might be said, in support of the proposition that once having stood his trial and that trial having come to a particular conclusion, albeit through the review process, he ought not then be vexed again.  Those are perhaps matters that may repay closer examination at some more appropriate time than this.

But may I say this to you so that we are not under some misunderstanding - no doubt as part of considering whether or not to admit your client to bail I must have an eye to the prospects of success of the special leave application.  I cannot and ought not decide the fate of that special leave application.  But necessarily, as a matter of broad impression, I must make some assessment of whether the case is likely to attract a grant.  For the moment, I am struck by the fact that section 5 undoubtedly seems intended to have retrospective effect, but again, as at present advised, it is not immediately apparent to me how section 5 affects closed or finished proceedings.  Unless it does, I do not for the moment understand how the Part 3 argument is mounted.  Those are the difficulties I have.  You may perhaps find advantage in addressing this.

MR WENDLER:   I will move to those areas.  Can I just invite your Honour back to the statutory language of section 5 and that could be found conveniently in the judgment of his Honour Underwood J.

HIS HONOUR:   Yes, I have the Act.

MR WENDLER:   At page 4, your Honour will note that the statutory language reads in this way, without reading all of it:

In relation to records, returns or documents are valid and always have been valid.

It is that statutory language which targets, in my respectful submission, the finality of the judgment in Graham v Davies.  In other words, it is technically open even after the decision in Graham v Davies for Mr Graham to have been recharged subject to any plea in bar or suggestion that a recharging is an abuse of process in some way.  Following that decision of course any person charged under that regulation would not be able to avail themselves of the decision in Graham v Davies because the legal effect of section 5 would be to retrospectively overrule the decision in Graham v Davies.

To the extent that section 5 has the potential of undermining the finality of the judgment of a Chapter III Court, to the extent that it has that legal effect, it raises the issue which concerned this Court in Kable v Director of Public Prosecution.  It is concerned with the integrity of Chapter III of the Constitution.  In other words, Chapter III is a code of the category of Courts capable of exercising the judicial power of the Commonwealth.  There is a constitutional right of appeal to the High Court from a Chapter III Court, a state Court, and because of that constitutional right of appeal, a state Court of course has a constitutional status, and in order to preserve that status they have to exist obviously as bodies which are Courts within the meaning of Chapter III of the Constitution.  They cannot exist as, as it were, advisory or recommendatory bodies or situations where the parliament decides it does not like a decision of a Chapter III Court and retrospectively enacts legislation to attack the finality of a decision of a Chapter III Court.

So to the extent that there is an attack on the essence of the judicial process, namely the binding and final finality which is one of the essence or the ingredients of the judicial process, a Court deciding controversies and coming to a binding and final decision, to the extent that it undermines that, the legislation undermines it and attacks that concept, it directly undermines the integrity of Chapter III of the Constitution.  In the same way that the legislation in Kable sought to set the Supreme Court of New South Wales up into some form of executive function whose function was to detain people, make orders detaining people on the prognosis that a particular person might commit criminal offences in the future.

So if the Court pleases, come back to the two critical issues.  First, the protection from futility of the special leave process.  This Applicant, if his application for special leave to appeal is not heard by September, will have completed virtually all of the sentence of imprisonment.  As your Honour knows there have been a number of instances in this Court where that consideration has been a powerful one, the protection from futility of the special leave process.

Second, in my respectful submission, he has an arguable case in relation to the legality of section 5, and that is a section which underpins his custody.  It is my respectful submission, the Full Court of the Supreme Court of Tasmania should have given the Applicant leave to agitate that point.  It was a pure question of law.  The Full Court could have truncated consistently with the requirements in section 78B of the Judiciary Act, could have truncated the constitutional issue from the rest of the grounds of appeal and proceeded to hear them and come back to the constitutional ground.  So to the extent that the majority refused him leave to amend a ground which went directly to the legality of his custody, it is my respectful submission that there is error in that regard.

The last matter that I want to raise or mention is this:  that any citizen should not be lightly shut out of raising an issue involving the Constitution which affects us all.  He sought to raise one in the Full Court, went directly to the legality of his custody.  He should not be lightly shut out from that process.  It is true that the ground of appeal was raised belatedly.  Nevertheless, it was a ground which was important and required the consideration of the Full Court to the extent that the majority of the Full Court shut him out from that process, so there is demonstrable error in that regard.  Your Honour, they are really the matters which go to make up this application.

HIS HONOUR:   Yes, thank you, Mr Wendler.  Now, Mr Director, what is the attitude of the Respondent?

MR BUGG:   The application is opposed, your Honour.  Your Honour has raised obviously the question of the merits of the subsequent or secondary special leave point.  Obviously the first special leave point and the only one which is really before the Court, your Honour, is the question of the exercise of the discretion of the Full Court in refusing the application for leave to amend.  Your Honour, I refer you to the affidavit of Mr Neasey.  Has your Honour seen that document?

HIS HONOUR:   Yes, I have.

MR BUGG:   I will not go to that in any detail but it does set out the history of the appeals from the conviction by a Magistrate early in 1997 of the Applicant, his subsequent appeal to a single judge, the dismissal of that appeal in October of 97, the slow passage of the appeal from that judge's decision to the Full Court, with the directive given by the president of that Court in March of this year that the Applicant effectively had to get his act together, as did the other Applicant who was jointly charged with this Applicant and who joined the appeal shortly before that appeal term.

HIS HONOUR:   Were any reasons given by the Full Court for declining to permit amendment?

MR BUGG:   Yes.

HIS HONOUR:   I could not see them in my quick look at the reasons that were published this morning by the Court, but are they there?

MR BUGG:   No, they are not in those reasons but there is a transcript which  now is available and your Honour will see ‑ ‑ ‑

HIS HONOUR:   Is that the transcript of 25 May?

MR BUGG:   That is correct.  If you go to the second‑last page and last page ‑ ‑ ‑

HIS HONOUR:   Yes, I see.

MR BUGG:   The Chief Justice said halfway down that page when he spoke about delay, and then he says, "Look, my recollection," and he had obviously called for the minute book whilst argument was being put to him, but he says:

My recollection is that I made it quite clear that further delays would not be looked upon favourably.

That was an order for the Appellant to get his house totally in order so that this matter could come on and be disposed of this term.  Then his Honour the Chief Justice ‑ ‑ ‑

HIS HONOUR:   Yes, I see the reasons.

MR BUGG:   - - - gave reasons on the last page which accord with the note taken which is transcribed in Mr Kimber's affidavit already referred to your Honour.  Your Honour, might I just take you, in relation to your question of my learned friend as to the affect of the retrospective amendment to Underwood J's unreported judgment and the passage to which you were referred at page 5 where his Honour refers to, in the first full paragraph on that page, the second reading speech of the Minister, and of course under the Acts Interpretation Act in Tasmania help can be gained from second reading speeches.  Clearly there, in my submission, that passage of the speech which is recorded in the judgment, weight was given to the decision of Zeeman J so the reality of the parliamentary intention was to acknowledge the correctness of the decision of Zeeman J and based on that acknowledgment to pass retrospective legislation to overcome any doubts that may arise as to the validity of the regulation which of course is the subject matter of this application.

The decision of Zeeman J was handed down on 14 September 1995 and absent any argument about a plea in bar, the offences he was considering had allegedly been committed on 17 December 1993.  There is a statutory limitation on summary prosecutions in Tasmania which was well exceeded even at the time of his Honour's decision, so the legislation as far as ‑ ‑ ‑

HIS HONOUR:   But questions of limitations apart - and I can understand that they may present a difficulty - my first impression is that the man having been dealt with in the Courts, to charge him again would be met by an undeniable plea in bar.

MR BUGG:   I agree entirely, your Honour, and there is nothing in the legislation to suggest that it quash in effect the judicial determination of Zeeman J.  Insofar as the retrospectivity of it and its application to this Applicant is concerned, in my submission, no point is taken as to any infringement of the Kable decision which of course dealt with totally different legislation.  Here the judicial process is still preserved; that is, the fact finding and determination of guilt or innocence is left unfettered in terms of this particular piece of legislation.

The Applicant will have served approximately four of the six months of his sentence if the special leave application is heard in mid‑September.  Your Honour, I would not seek to persuade you that obviously that is a substantial portion of his sentence but there are other matters contained in the affidavit of Mr Neasey which in my submission would be relevant to your Honour's consideration.  They relate to the appalling record of infringements of this man and the fact that he has since ‑ ‑ ‑

HIS HONOUR:   Reading up the man's priors is of perhaps great forensic advantage sometimes, Mr Director, but it does not seem immediately to go to the point that we are debating, does it?

MR BUGG:   Well, I was going to go on to say, your Honour, that since his conviction on these matters he has been convicted in two jurisdictions of other offences whilst on bail.

HIS HONOUR:   There we are, Mr Director.  These things happen, don't they?  Some people are unfortunate but I do not think again that is a matter that is really going to enter into my consideration at all.

MR BUGG:   Well, I had hoped to persuade you that a person's likely conduct whilst on bail, if these offences were committed on bail, might be a matter that your Honour may take into account.  I have nothing further to submit, your Honour.

HIS HONOUR:   Yes, thank you, Mr Director.  Mr Wendler, anything you wish to say in reply?

MR WENDLER:   Only this, your Honour.  I did not actually move to address your Honour in relation to the second order sought on the summons which was ‑ ‑ ‑

MR BUGG:   That is not opposed, your Honour.

HIS HONOUR:   I understand that and, Mr Wendler, I think that in a case where the man is in custody, if that were the outcome, that is if he were to be denied bail, no doubt the Court would take that into account in determining where in the queue the case would sit.  As a single Justice, I would be very reluctant to make some order which was anything more than a statement of the obvious, that this case would be given such priority as it could be afforded, having regard to the other demands on the Court.  But the fact that the man is in gaol is a very powerful consideration and is no doubt something that would be taken into account if the outcome of the bail application were that he failed.

MR WENDLER:   Yes.

HIS HONOUR:   Yes, thank you, Mr Wendler. 

On 25 May 1998 David Campbell Strachan applied for special leave to appeal.  The order, the subject of that application, is an order of the Full Court of the Supreme Court of Tasmania refusing the Applicant leave to amend a Notice of Appeal to include as a ground of appeal a challenge to the constitutional validity of section 5 of the Fisheries (Amendment) Act 1995 (Tasmania). 

The appeal to the Full Court of the Supreme Court of Tasmania arose from the Applicant's conviction in the Court of Petty Sessions sitting in Hobart on a number of offences under the Fisheries Act 1959.  Those convictions were recorded on 31 October 1996 and on 12 March 1997 the Applicant was sentenced to pay certain fines, what are described as special penalties, and of most importance to the present application, to a term of imprisonment of six months.

After his conviction and sentence the Applicant filed a notice to review the whole of the judgment and the sentence of the Court of Petty Sessions.  That notice of review came on for hearing before Underwood J in the Supreme Court of Tasmania, who on 15 October 1997 dismissed the application.  On the same day the Applicant filed a notice of appeal against that judgment of Underwood J and bail was extended.  The appeal to the Supreme Court of Tasmania came on for hearing on 25 May 1998 and, as I have already indicated, on that day application was made to amend the notice to appeal to that Court to include the ground that I have mentioned.  The Supreme Court of Tasmania by majority refused that application.

Cox CJ gave the reasons of the Court for refusing the application, those reasons being in effect that the Appellants had been warned in March 1998 that they should get their houses in order to permit determination of the appeals in the term of the Court in which they came on for hearing.  Cox CJ went on to say that:

The granting of leave to add another ground of appeal based on constitutional arguments will lead to further delay which is undesirable in the public interest.

His Honour noted that the ground of appeal had been formulated only on the day preceding the application.  The Full Court of the Supreme Court of Tasmania proceeded then to hear the appeal on the grounds that had earlier been given by the Appellant and it dismissed that appeal.  Its reasons for dismissing the appeal were published today but I have had some opportunity to consider them.

The Applicant now applies to this Court for bail pending the hearing and determination of his application for special leave to appeal.  As Brennan J said in Chamberlain v The Queen number 1 (1983) 153 CLR 514 at 517:

An application for bail to the High Court in these circumstances invokes an extraordinary jurisdiction of this Court.

As Mason J said in Hayes v The Queen (1974) 48 ALJR 455, bail in these circumstances is granted "in an exceptional case only".

The principal contention advanced in support of the argument that the Applicant should be admitted to bail is that the sentence which he must serve is short and a significant part of it will have been served before the application for special leave to appeal can be brought on for hearing.  It was submitted that in those circumstances the right to apply for special leave to appeal might be rendered nugatory or futile if the Applicant were not admitted to bail.

As I have already noted, the challenge which the Applicant seeks to mount is a challenge to a discretionary order of the Full Court refusing leave to amend grounds of appeal.  The discretionary nature of that order may perhaps present a difficulty in the way of the Applicant obtaining special leave but for present purposes I leave that difficulty entirely to one side.  It is on an application of this kind neither possible nor appropriate to do more than attempt some very general assessment of the likelihood the Applicant obtaining leave.  The arguments in support of the application have not been developed fully and it is in those circumstances not appropriate to attempt to make some forecast or to reach some concluded view about the likelihood of success.  Nevertheless it is not possible to determine this application without having regard to the nature of the grounds which it is sought to agitate on the application.

The principal point which it was sought to agitate before the Full Court of the Supreme Court of Tasmania and which lies behind the application now brought to this Court is the contention that section 5 of the Fisheries (Amendment) Act 1995 is invalid.  That section provides:

Any regulations made under the principal Act before the commencement of this Act relating to prohibiting or restricting the possession of fish as defined by the principal Act, subject to any condition or requirement to possess, complete, maintain and provide any records, returns or documents are valid and always have been valid.

The amending Act was passed following the decision of the Supreme Court of Tasmania in a matter of Graham v Davies in which it was held that regulation 44(1)(oc) of the Fisheries Regulations 1962 was ultra vires the Fisheries Act 1959.  It is said that in response to that decision in Graham v Davies section 5 of the amending legislation was passed.  Therefore, so the argument proceeds, section 5:

Specifically targeted the order of a superior Court, the legal effect being that section 5 overruled the decision in Graham v Davies.

The argument proceeds that:

To the extent that section 5 overrules the decision and order made by the Supreme Court in Graham v Davies, it is an impermissible interference with the finality of the order of the Supreme Court and incompatible with the integrity, independence and impartiality of the Supreme Court as a Court in which federal jurisdiction also has been invested under Chapter III of the Constitution (see Kable v DPP New South Wales (1996) 189 CLR 51).

It is enough for present purposes if I say that it is not immediately apparent to me that the operation of section 5 is in any way to interfere with the decision of the Supreme Court of Tasmania that was made in Graham v Davies.  At first sight it is not evident to me that the effect of section 5 is in any way to disturb the order that was made in that case.  Again, as a matter of first impression, it seems clear that the intention of section 5 is to make retrospective provision validating regulations that had earlier been held invalid.  That is, however, a process not unknown to legislation.

It is submitted that a citizen should not lightly be shut out from challenging a statutory provision on constitutional grounds.  For present purposes I accept that that is so.      As I have already noted, the sentence imposed on the Applicant is short and much of it will have expired by the time the application for special leave to appeal can be brought on.  The personal circumstances of the Applicant, in particular the tragic position of his dependent daughter, are pressing.  Nevertheless, it is important in my view to recall that it is only in an exceptional case that bail is granted by this Court. 

Having regard to the nature of the ground which it is sought to agitate on the application for special leave, as well also as the other countervailing matters that I have mentioned, I am of the opinion that bail should be refused.  Accordingly, the summons insofar as it seeks admission of the Applicant to bail will stand dismissed.

Insofar as that summons seeks expedition of the application for special leave to appeal, for the reasons that I outlined to counsel in the course of argument I am reluctant to make any order that would do more than state the obvious fact that the Applicant being in custody, the application for special leave will come on as soon as the other business of the Court and other demands on the Court permit.  In the circumstances, I am of the view that the proper order is that the summons should stand dismissed.  I will certify for the attendance of counsel.

MR BUGG:   I seek an order for costs, if your Honour pleases.

HIS HONOUR:   Why should you have costs on an application for bail, Mr Director?

MR BUGG:   Well, your Honour, this matter in reality is a civil proceeding from the Supreme Court of Tasmania.

HIS HONOUR:   That may be its characterisation but a man is sitting in gaol for six months.  That does not seem of the nature or essence of a civil proceeding, Mr Director.  I understand that these things, coming up as they do by order to review from Magistrates Courts, are commonly dealt with, I think, by most Supreme Courts around the country as civil business.  The fact is the man is sitting in gaol and this is an application for bail, Mr Director.

MR BUGG:   Look, I accept that, your Honour, and it is the nature of the process as it is conducted in the jurisdiction of the Supreme Court of Tasmania.  It is an Appellant process in the civil division of the Court.  If your Honour pleases.

HIS HONOUR:   Yes, Thank you, Mr Director.  I will not trouble you on the question of costs.  Mr Wendler, there will be no order for costs.  Thank you.

MATTER ADJOURNED AT 11.15 AM