The Queen (on the Appln of the Director of Public Prosecutions for the State of Victoria) v Garde-Wilson

[2007] HCATrans 162

[2007] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M9 of 2007

B e t w e e n -

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA)

Applicant

and

ZARAH GARDE‑WILSON

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 APRIL 2007, AT 2.20 PM

Copyright in the High Court of Australia

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MR S.B. McNICOL, for the applicant.  (instructed by Director of Public Prosecutions for the State of Victoria)

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR I.A. MILLER, for the respondent.  (instructed by Garde‑Wilson, Lawyers)

KIRBY J:   Yes, Mr Uren.

MR UREN:   The Court will see the subsection of the statute with which this application is concerned at page 21 of the application book.  The section reads:

(2)Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination ‑ ‑ ‑

KIRBY J:   Cannot hear you, Mr Uren.

MR UREN:   Sorry.

KIRBY J:   You know it is one of the burdens of old age that when you get to my great age you begin to get a little bit hard of hearing.  It might be a blessing sometimes, but you will have to speak up.

MR UREN:   It is very kind of your Honour to put it in that way.   The section reads:

(2)Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

That subsection is preceded by another subsection, subsection (1), which reads:

(1)The Trial Division constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal.

It was under the first subsection that the judge of the trial division heard the initial matter.  Subsection (2) is not a freestanding section.  It is something which gains its colour, in our submission, from subsection (1).  We make no apology for emphasising the following words in subsection (2) before going to the balance of our submissions:

Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

What the Court of Appeal did was that it held that notwithstanding the weight of those words they did not give the Director of Public Prosecutions, who was a party to the contempt proceeding below, the proceeding which fell clearly under subsection (1), a right of appeal against sentence.  Now, the weight and clarity of those words is such that one might well ask, how was it that a contrary conclusion could be reached, that is to say, that those words did not in fact give the right of appeal to be a party to a proceeding below which they would otherwise appear to do?  What the court did was to on one view read down and on another view to add to the words the subsection (2).

KIRBY J:   The other view is that they refused to read up and that they applied ordinary principles of statutory interpretation to require such an entitlement to be made very clear.

MR UREN:   Yes, we understand that point, your Honour, but as your Honour has observed in other cases, the task of the interpreter is to start with the statutory words.

KIRBY J:   Indeed.

MR UREN:   Look at them in their historical and other context, look at them in the context also of mischief with which they are intended to deal and also in the context, of course, of such presumptions as would apply, but also ‑ ‑ ‑

KIRBY J:   But the general provision would have been written against the background of very long principles that restricted and limited Crown appeals and the principle that you do not place a person in repeated jeopardy unless you do so in very clear terms.

MR UREN:   Yes, but not Crown appeals against sentence, only Crown appeals against acquittal, which is a different kettle of fish.

KIRBY J:   Your point basically is that the statute is in very broad terms and that one would expect that given the need to provide for a myriad of appeals to the superior court of the State.

MR UREN:   Not precisely, your Honour.  Our point is the statute is in extremely precise terms. 

KIRBY J:   It is really a question of balancing those two principles.  This is the superior court of the State and one would have to apply a whole lot of statutes in different circumstances and you would not normally read that down, but on the other hand the principle that repeated jeopardy is something that diminishes the liberty of the individual and should therefore be made very clear if it is to exist.

MR UREN:   In one sense that is true.

KIRBY J:   What is wrong with the way the Court of Appeal resolved that?

MR UREN:   Your Honour, there are two considerations there.  One is the precise nature of the presumption and the other one is the weight to be given to it when one decides what it is and the third is, as it occurs to me as I speak, the subsection was passed in order to allow appeals to go to the Court of Appeal, especially actually from contempt cases, because it was passed in the contempt context.  It was an order to avoid the problems which occurred with the case of Keeley v Mr Justice Brooking and which resulted eventually in the DPP, I think, having to appeal to this Court or to seek special leave from this Court in Glennon’s Case.

The purpose of subsection (2) was to put these things in the Court of Appeal, not to require people to make special leave applications to this Court, as we could have done, but which we thought was inappropriate, in the circumstances, to allow people to keep the thing in the State jurisdiction and not to require them to go to the High Court saying “There is no remedy for us in the State jurisdiction, therefore give us relief here.”  That is the purpose of subsection (2).

The Court of Appeal did not pay any regard to that at all.  This is in a preamble, in a sense, to our first reason for asking for special leave on the assumption that we do have an arguable case, which we will go to momentarily, but the first reason is that the result of the decision of the Court of Appeal is to deny a party to a proceeding in the Supreme Court a right of appeal which appears to be given to every other party.

Now, it may or may not be in the long run that the decision below is right; we submit strongly that it is not but, nonetheless, little could be said, in our respectful submission, against the question of whether that right exists or not as being a matter of public importance.  There are many cases in this Court, or at least a number of them, where accused persons, no doubt relying on the fact that their liberty is at stake, had been given special leave to appeal, cases involving the question of whether there is in fact a right of appeal in their case given to the prosecution.

We do not, of course, have the benefit of saying that our liberty is likely to be at risk but, nonetheless, the Director does act in the public interest and he does not bring these proceedings lightly and where the Director considers that there is an appropriate case for an appeal, it is, in our respectful submission, quite an important aspect of public policy as to whether the statute which he relies on does or does not give him that right.  The Court of Appeal has held that it does not, but the question of whether it does or does not must be a matter of public importance because his powers are only wielded in the public interest.

If his powers are wielded in the public interest and he is seeking to rely on a public statute as giving him that right, then how could it be said that the question of whether that right exists or not is not a matter of public importance?  If that proposition is accepted, as in our submission it must be, or at least it should be, the only question which arises is, is there any basis for thinking that what the Court of Appeal did was wrong?  In our submission, there are many bases for thinking that what the Court of Appeal did was wrong.

The Court of Appeal’s approach was mechanical.  It did not do what is appropriately required in the analysis of the words of the statute, in the investigation of the true nature of the presumption to see whether it extends to this category of case or not and in giving the weight which it should give to the presumption, if there is one, in the light of the strong words which the statute uses.  We are talking here not about a right of appeal which is a circuit against an acquittal but a right of appeal against sentence. 

In the case of appeals against sentence the law already provides for protections to the citizen in the context of the fact that, firstly, the public official is doing the appealing and, secondly, the public official will have to satisfy the discretionary considerations and perhaps other considerations, too, which relate to the overthrowing of a sentence passed below.  It is not something that one can do just as a matter of asking the Court of Appeal to take a different view.  There are significant discretionary considerations which govern the question of success or not. 

So there is a distinct difference between the oppression which is given rise to when the prosecution merely seeks to do the job again, that is to say, prosecute someone again for the same offence, and where it seeks to ask the Court of Appeal to apply the law, that is to say, the law relating to sentencing appropriately in a particular case because it is a matter of public importance that people be not sentenced inappropriately in their favour and against them.  The law is neutral in this aspect.

To say that without any particular examination of the antecedents and rationale of the presumption against double jeopardy which applies in the case of attempts to prosecute somebody twice for the same offence, to take that and its current extension, which is in fact an extension and not an application of the rule itself to appeals against acquittal, and then to apply it to the case to which it has never been applied before, namely, appeals against sentence on the ground that they are the same thing as an appeal against a conviction is, in our respectful submission, not only likely to be wrong but, in any event, quite arguably wrong and a matter of importance to the public in the proper application of the criminal law.

All the Court of Appeal seems to have done, in our respectful submission, is to equate inappropriately the presumption against double jeopardy as it applies to appeals against acquittal, to appeals against sentence when it has never been done before, to fail to examine the strong words of the statute and of the history of the statute and then to lay down a principle which the Court of Appeal expressly said requires express words to be used before the Director will be considered as having a right of appeal against sentence.

All these things may or may not be correct but there are good reasons, in our respectful submission, which we have put in our submissions for thinking that they are not.  It is not a proper approach, in our submission, to ignore the verbiage of the statute itself or the intention of Parliament which the words of the statute or the extrinsic material or its history or its mischief show and merely to apply a presumption which has never been held before to apply to this category of case and therefore to say that the words in the statute, which otherwise would have clearly given a right of appeal, are to be set aside.

The result of that will be that if the Director wishes to take the proceedings in the future in respect of matters such as this, he will have to come to this Court.  It is a matter, in our respectful submission, of public importance as to whether he is required to come to this Court or not.  There is no perhaps particular reason why one should not come to this Court rather than any other, but the question of where you should go is a matter of public importance and with the time which this Court has to devote to cases taken up by numerous suppliants for its attention it is, in our submission, a matter of public importance as to whether this Court should be approached or whether the more appropriate party should be approached, which is to say the Court of Appeal.

In our respectful submission, there can be nothing said against the proposition that the question of whether the statute gives the Director a right of appeal or not is a matter of public importance.  The question of whether the statute not giving that right requires him to approach the High Court in the future is again a matter of public importance.  The Director, of course, would rather remain in the more appropriate jurisdiction which, in our respectful submission, is the State one.

Looking for a moment at one of the merit questions in the case, which is the question of the weight of any presumption, if there is one, the Court of Appeal treated the question of the detriment which is suffered by an accused person as a result of an appeal against sentence as the same as that which the law has identified in respect of the principle against double jeopardy.  There are two cases in this Court where Judges have said that the giving of a right of appeal against sentence has now, since the 30s, 40s and 70s, been a commonplace matter.  It is commonplace for statutes to give rights of appeal, appropriately guarded, against sentence.  There is or was a presumption against the interpretation of a statute so that it gave such a right of appeal.

No matter how strongly that statute itself was worded, providing it did not say something expressly, then the point which we would put it is, how does the Court of Appeal come to the conclusion that the presumption is then of such weight that unless the statute itself says something expressly, it is to be regarded as being read subject to some silent exception, that is to say a silent exception which says except in the case of an appeal against sentence?

The words “unless otherwise expressly provided by this or any other Act” are, in our respectful submission, an express statement by the legislature that that is what it wants to happen.  What it wants to happen is that an appeal lies to the Court of Appeal from any determination of a trial division “unless otherwise expressly provided by this or any other Act.”  There is no other Act which expressly provides and, in our respectful submission, a presumption which enables those words to be ignored would have to be ‑ ‑ ‑

CRENNAN J:   You would agree, though, would you not, Mr Uren, that where rights of appeal against sentence are given they are given quite expressly.  I think it is section 567A of the Crimes Act.

MR UREN:   Yes, in that category of case.  The thing about this category of case is that it is probably the only category of case in which the Supreme Court would have a summary criminal jurisdiction.  The Crimes Act provision relates to appeals against sentences which result from verdicts of juries, so it is a different category of case altogether.  This is probably the only sort of case which would fall under subsection (1) or subsection (2) because I do not understand the Supreme Court to have a first instance summary criminal jurisdiction, except in a case of contempt.

The point we come back to is that this section was intended to deal with that situation.  It was in fact intended to deal, amongst other things, of course, with the fact that before it was enacted there was no right of appeal in a matter which was purely criminal and in order to get rid of that problem subsection (2) was enacted in the way in which it was but, in our respectful submission, in doing that, it was intended to deal also with the question of what court appeals or applications for leave to appeal should go to, and they should go to the Court of Appeal.  The other alternative is, of course, that the Director but not the accused must go to this Court and that, in our respectful submission, is an unlikely intention of Parliament. 

If there is a presumption of a sort which the Court of Appeal said there was, which in our submission there is not, if there is one, one has to weigh it against what was intended to be the result of subsection (2).  If it is considered that the result was to put matters in the Court of Appeal instead of having to make an application for special leave, then, of course, the presumption can have no effect whatsoever because it was the intention of Parliament that the Court of Appeal determine these issues and that they do not have to be taken to trouble your Honours or some other judges of this Court on applications for special leave and things of that sort.  If the Court pleases.

KIRBY J:   Yes, thank you, Mr Uren.  Mr Nash, it is always a pleasure to hear from you but we do not need to on his occasion.

MR NASH:   I am indebted to your Honour.

KIRBY J:   The Crown seeks special leave to appeal from an order of the Court of Appeal of Victoria.  That court left standing a decision of the trial judge of the Supreme Court of Victoria, Justice Harper, that the respondent should be convicted of contempt of court but not otherwise punished.  The Director of Public Prosecutions of Victoria purported to appeal against that penalty, contending that it was inadequate in the circumstances of the case.

The basis of the Court of Appeal’s determination was explained in reasons given for that court by Justice Bongiorno, Acting Judge of Appeal. His Honour, by analysis of the applicable State legislation, concluded that, in the circumstances of a contempt case, the general right of appeal conferred by section 17(2) of the Supreme Court Act 1986 (Vic) did not extend a right of appeal to the Director of Public Prosecutions in respect of a sentence imposed following summary conviction for contempt.

In reaching this conclusion Justice Bongiorno applied well‑established principles of statutory interpretation.  We are not convinced that his Honour’s reasons and conclusions demonstrate error or that there would be reasonable prospects of success were special leave granted.  In fact, we consider that Justice Bongiorno was right in his analysis.  Special leave is therefore refused.

AT 2.41 PM THE MATTER WAS CONCLUDED