Truong v The Queen
[2003] HCATrans 511
[2003] HCATrans 511
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M226 of 2002
B e t w e e n -
HONG PHUC TRUONG
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 3 DECEMBER 2003, AT 10.16 AM
(Previously heard on 28/5/03)
Copyright in the High Court of Australia
GLEESON CJ: I do not think we need the appearances to be announced again, thank you. Have the parties agreed between themselves on an order of address?
(Appearances were as follows:
MR O.P. HOLDENSON, QC with MR J.B. McDOUGALL for the appellant. (instructed by Clarebrough Pica)
MR P.A. COGHLAN, QC with MS K.E. JUDD for the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia, with MS M.M. GORDON, SC and MS L.G. DE FERRARI intervening on behalf of the Attorney‑General of the Commonwealth. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia, with MS J.C. PRITCHARD intervening on behalf of Attorney‑General of Western Australia. (instructed by Crown Solicitor’s Office (Western Australia))
MS P.M. TATE, SC, Solicitor‑General for State of Victoria, with MS K.L. EMERTON intervening on behalf of Attorney‑General for the State of Victoria. (instructed by Victorian Government Solicitor))
MR BENNETT: Yes, your Honour. The order that has been agreed is that I should go first, then the appellant, then Victoria, then Western Australia, then the respondent, then the appellant in reply and then me in reply.
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: Your Honour, there are two preliminary matters and three submissions which we make. The first preliminary matter is to make the obvious point that we repeat the submissions we made on the previous occasion. If your Honours accept those, then the additional matters now raised do not arise and there is no need to decide them. The second preliminary matter is that yesterday a request was made to the United Kingdom Government for a retrospective waiver of specialty. It may be some time before that is determined.
That might have an effect on the form of orders which your Honours make if your Honours otherwise allow the appeal. We would simply seek leave to advise the Court and my learned friends of the ultimate result of that application and if ‑ ‑ ‑
KIRBY J: Is that a usual course? I am not myself entirely sure, but when I sat in the BLF Case years ago we looked in the New South Wales Court of Appeal at the usual process of Crown action where matters were before the court and my dim recollection is that the Crown normally waited for courts to dispose of matters on the law as it was and had been argued and took any, as it were, different and additional steps after the court had disposed of the matter that was before the judicature. Now, is that a correct recollection or not?
MR BENNETT: We would submit that is not appropriate in this case, your Honour.
KIRBY J: But are you not trying to change the goal posts in the middle of the litigation of a matter that is before the judicature for its ruling on the position as it stood at the time the proceedings were commenced?
MR BENNETT: There is no rule prohibiting that, your Honour; the matters are independent. If ultimately consent is given, there will, of course, be a question as to the validity of the retrospective consent. That is a matter which could appropriately be determined by the Victorian Court of Appeal, the matter being sent back to it for that purpose. That is why my submission is that ultimately the result of that application would be a matter affecting the form of orders to be made, but the application may be irrelevant and might not even be pressed if your Honours were otherwise minded to dismiss the appeal.
McHUGH J: I think in the Ipec litigation, was not the regulation changed between the High Court hearing and the Privy Council hearing? That was the challenge to the right to import aircraft.
GLEESON CJ: It certainly was, while Mr Mason was Solicitor‑General.
McHUGH J: Yes.
KIRBY J: Is it not a trifle embarrassing to the Court because we are, as it were, being asked to give the decision upon factual circumstances that are, on your indication, going to change or may change during the course of our deliberations? I find that a little embarrassing, I must admit.
MR BENNETT: The problem is, your Honour, it is really a matter for the DPP rather than us. The problem is that otherwise the DPP might be irrevocably prejudiced if the Court were to allow the appeal and quash the conviction and subsequently the United Kingdom were to say, “All along, we have no problem with waiving specialty in this case”, and it can do so retrospectively.
HAYNE J: That raises, does it not, Mr Solicitor, what order might be made if the appellant succeeded?
MR BENNETT: Precisely, your Honour.
HAYNE J: Because the Crimes Act contemplates no doubt quashing the conviction, but it then contemplates only either entry of verdict of acquittal or order for retrial.
MR BENNETT: Yes.
HAYNE J: If the appellant’s arguments are to be accepted, neither seems immediately apposite.
MR BENNETT: Your Honour, we would submit this is a matter to be determined at a later stage. That is why we submit the appropriate course is that if the application to the United Kingdom is still pending or has been decided favourably before judgment is delivered, counsel should be heard on the form of orders and the orders might well be remitting the matter to the Court of Appeal, which would then be able to determine, if necessary, the validity of the retrospective consent.
HAYNE J: But as things now stand, there being no consent, whether retrospective or otherwise, the question becomes what order should the Court of Appeal have made, if the appellant’s arguments are right, where the relevant provision of the Crimes Act, the number of which I can never put my hand on ‑ ‑ ‑
MR BENNETT: Section 568, your Honour.
HAYNE J: Section 568, contemplates in 568(2):
quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.
Now, since the answer made by the appellant is, “I should not have been tried”, that is the legislative command of the Extradition Act, the entry of verdict of acquittal seems at least to be odd.
MR BENNETT: Yes. Well, your Honour, one possibility is that the Court of Appeal might take the view it was appropriate to adjourn the matter until an answer came from England ‑ ‑ ‑
HAYNE J: I am not grappling with whatever may be the position if the facts later change, Mr Solicitor.
MR BENNETT: No.
HAYNE J: It seems to me that the point made against the respondent by the appellant is that the presentment should have been quashed.
MR BENNETT: Yes. But if subsequently a consent is given and if one can have a retrospective consent, which is an issue which the Court of Appeal would have to determine, that argument would cease to be available. That is why I say if the matter is still pending, if one asks what the appropriate order for the Court of Appeal to make is, it may well be to adjourn the matter.
McHUGH J: You might have to have a look at Dignan’s Case because in Dignan’s Case after the conviction of the appellants for an offence against the regulations the Senate disallowed the regulations and this Court held that the fact that the regulations were subsequently disallowed did not enable the Court to set aside the convictions, questions under the appellate power being whether such convictions were on the evidence before the magistrate in accordance with the law as then existed.
MR BENNETT: Yes, your Honour. That would depend on the argument about retrospectivity.
KIRBY J: That was what was at the back of my mind. I must admit that is the sort of principle that is at the back of my mind, that you are trying to shift the goal post during the course of the litigation. Intuitively, I find that offensive to the exercise of the judicial power.
MR BENNETT: This Court has allowed originating processes to be amended in the course of appeals.
KIRBY J: Yes, but they are normally merely formal matters that do not touch upon the substantive rights of the parties. I can understand your position. It would seem to me that under the Crimes Act (Vic) the logic of the appellant’s argument is that there would be an order quashing the conviction of murder and kidnapping, they being the non‑extraditable offences, but leaving it, as it would seem to me, at least on my present thinking, arguable that the appellant could then be presented on the extraditable offences of conspiracy and tried on those offences. That would be a matter for the decision of the Crown later. No order would be needed in that respect.
Unless there is some estoppel or other principle that would prevent that, that would seem to be a course that would be available to the Crown, but you are trying to change things in the middle of this litigation. We, therefore, have to reserve today, and be in the embarrassing position of waiting for the Executive Government of another country to be deciding this matter. If we are then notified whilst we have the matter under reserve that it has been changed, then we have to re‑list this saga for reargument. It is all very odd. It has never happened in my time here.
MR BENNETT: No, your Honour. That is why I say – my submission is that your Honours do not have to wait. If the decision is made by the United Kingdom prior to judgment, then the appropriate course is, when your Honours come to deliver judgment, to list the matter, in effect, for short minutes for argument as to the form of orders. If the order is to be “appeal dismissed”, then the question of the application to England becomes academic. If the order otherwise would have been “appeal allowed”, then the parties would have an opportunity to address the Court as to the appropriate order and my learned friend would be entitled to say to the Court some of the matters your Honour Justice Kirby has been putting to me.
HAYNE J: Can I just flag in that respect then that the course of events described by his Honour would seem to leave the presentment now filed uncleared. There has to be something done to dispose of the presentment that has been preferred against the appellant and therefore you have to somehow deal with it. How that is to be done may be a matter for Mr Holdenson. I do not know.
MR BENNETT: Yes. Your Honour, we say it is a matter for argument at a later stage and that the convenient course is for the additional matters in the appeal to be dealt with today and, as I say, if, either because of the arguments on the last occasion or because of some of the arguments on this occasion, the respondent is successful, this whole question just does not arise and your Honours need not be concerned with it.
GLEESON CJ: Yes, thank you, Mr Solicitor.
MR BENNETT: If the Court pleases. Those were the two preliminary matters. The three substantive submissions are, first, that section 42 of the Extradition Act is something which confers rights only on the United Kingdom, not on the extradited person, and that the appropriate remedy for the extradited person, if he wishes to raise the objection, is that there has been an abuse of process. If he does that, of course two matters arise. The first is that one has to look at the overall circumstances to see if there is an abuse and the second is that there would be a question of the application of what in criminal law circles is known as “the proviso”.
The second submission is that if we are wrong on the first submission, all section 42 does is create a defence analogous to or akin to a plea in bar. It is something that one can raise before pleading, but after indictment, in arraignment, and one may be able to raise it later, but if one does, of course, the proviso applies again.
GUMMOW J: How would the waiver notion fit in with the structure in Part IV, sections 40 and following?
MR BENNETT: Your Honour, waiver is dealt with by section 42(a)(ii).
GUMMOW J: Yes, “consents” - do you read that as meaning consents, what, at any time?
MR BENNETT: Your Honour, that is a matter for future argument. Yes. I am sorry it has ended up with three bites rather than two. The third submission ‑ ‑ ‑
GUMMOW J: The presence of 42(a)(ii) does rather suggest that the right, if that is the word that is being conferred, is a right of the other country ‑ ‑ ‑
MR BENNETT: That is the first submission I will make when I come to my first submission.
GUMMOW J: ‑ ‑ ‑because otherwise, if it is the right of Mr Holdenson’s client it is a right that can be defeased by the uncontrolled activity of a third party.
MR BENNETT: Precisely, your Honour. Then the third submission will be that ‑ and in this submission we change sides and support the appellant - if your Honours are against me on the first two submissions and if this is a provision which takes jurisdiction away from a State court, then we seek leave to argue that Re Tracey is wrong and that as long as one acts within the powers conferred by section 51 of the Constitution, one can take jurisdiction away from a State court in limited classes of cases and subject to section 106, which I will have some submissions about, and something analogous to the Melbourne Corporation and Austin doctrines. So those, your Honour, would be my three submissions.
In relation to the first submission, the first matter to note is that if a person is wrongly brought back to Australia by kidnapping or some unlawful collusion between the Australian police and some foreign police, he or she is put on a plane; if that occurs, the appropriate remedy is a remedy of abuse of process. That has been decided in a string of cases, including Horseferry Road in England, Levinge in Australia and a New Zealand case called R v Hartley.
GUMMOW J: Are any of those cases in which the arrival, to use that word, of the individual in this country has been the product of what purported to be extradition processes under bilateral arrangements?
MR BENNETT: No. The consequence of my learned friend’s submission against us is that ‑ ‑ ‑
McHUGH J: What about Levinge, that case?
MR BENNETT: Levinge was an extradition case where it was alleged that there had been a prior kidnapping and removal to the country from which the person was extradited, so there was no challenge to the extradition process as such. It was in effect saying that the kidnapping had occurred at a prior stage.
The submission I make is this. It would be surprising if, in the far more serious case of kidnapping or wrongfully bringing a person within the jurisdiction, the remedy is the weaker remedy of abuse of process, whereas in the case of a breach of specialty where one has gone through an extradition procedure and there is what one would have thought, so far as the accused person is concerned, is a lesser breach, the remedy would be a more absolute remedy of having the proceedings totally dismissed without the limitations on the abuse of process doctrine.
The second matter to note is that your Honour Justice McHugh in the case of AB (1999) 198 CLR 111 in paragraph 4 at page 116 said this:
The appellant had no relevant rights to waive. In so far as there were any relevant rights, they belonged to the United States government –
Your Honour, that was a case where a priest was extradited from the United States on the usual charges and when he came back to Australia he confessed to an additional 39 offences and was prepared to plead guilty to them. The question was the extent of the discount to be given to him for voluntarily disclosing and pleading guilty to those offences and that involved indirectly a question of whether he could have waived any breach of specialty that was involved. It was in that context that your Honour said exactly what we are submitting here – the appellant had no relevant rights to waive.
GUMMOW J: That is not quite the full story, is it, because the United States said that it would not waive unless it had consent of the individual concerned. So the presence of his consent was of great assistance to the ‑ ‑ ‑
MR BENNETT: Yes, there were a lot of other factors in that case. It did not involve a direct consideration of the issue. Your Honour Justice Gummow, in a joint judgment with your Honour Justice Callinan, also dealt with the matter and said in paragraph 41:
Section 42 embodies that rule of international practice known as “the speciality rule”.
There is then a reference to Barton’s Case. Ultimately, his actions were held to have been of significance. Your Honour Justice Kirby dealt with the matter rather differently at paragraphs 88 and 89.
KIRBY J: Why does it have to be an either/or? Though the rights to be waived are those of the United States, which will generally be blissfully unaware of what is going on in courts concerning particular people in a foreign country, why is it not also available to the very person who is the subject of the statutory purpose of protection to invoke those rights, because that is the person who has the greatest interest in ensuring that the government of the country to which extradition is being made sticks to the rules of its own legislation.
MR BENNETT: Your Honour, one needs to see the purpose of speciality to answer that. There are a number of purposes. One is to protect the extraditing country from extraditing for an offence it would not have been willing to extradite for. Now, AB is a very good example of a case where one would be surprised, subject to the United States policy of seeking consent, at the United States having the slightest concern of there being an additional 39 matters of the same type. The concern is, rather, that you extradite for one matter then the person is charged with a political offence when he gets back.
This really goes back to the submissions I put on the previous occasion, where one can go through the whole of the statement of facts provided to the United Kingdom and there is not a single aspect of the person’s conduct which is not included in that statement of facts. One only has a problem when one looks at the elements of the offences and says, “Well, murder has an additional element from conspiracy to murder”. But it is not a matter of the elements of the offence; it is a matter of the factual material on which is sent back.
McHUGH J: Justice Kirby’s judgment helps you, does it not, in this case?
MR BENNETT: Yes it does, your Honour.
McHUGH J: His Honour said:
The legal rights involved do indeed belong to the United States –
but his Honour went on to say that from a practical point of view they did confer benefits on the accused.
MR BENNETT: Yes.
HAYNE J: But on the accused being arraigned, could he have answered, by operation of section 42, “You may not try me”?
MR BENNETT: We would submit not, your Honour. We would submit his answer would be, “It would be an abuse of process to try me”.
HAYNE J: But before pleading the general issue could he not have made as a special plea section 42 forbids the process, which has not yet begun, but upon which you are about to embark, namely “trying me for a section 42 offence”?
MR BENNETT: That will be my second submission if I fail on the first one, your Honour, but my primary submission is that the sole remedy ‑ ‑ ‑
HAYNE J: I thought your second submission was that it created the defence. This is not a defence. This is an answer which leads to the quashing of the indictment rather than the resolution of issue joined on plea of the general issue.
MR BENNETT: Yes. Your Honour, that is why we have used the phrase “analogous to a plea in bar”. My primary submission is that the sole and appropriate remedy in the accused person’s hands, had the matter occurred to him at the time, would have been abuse of process and with, of course, all the elements that go to make up that as to whether this is an abuse of process and will, of course, if raised at the appeal level, be a question concerning the proviso.
Now, the matter is also discussed by your Honour Justice Gummow in the Federal Court in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. That case was really decided on a different basis. That was decided on the basis of, first, the question if the offence is committed after return and, secondly, the question whether the making of a sequestration order was criminal in the relevant sense, within section 42. There is some language in that case. At page 370 your Honour said in the first full paragraph:
However, the taking of a step in the conduct of international relations, whilst of itself neither creating private rights nor imposing such liabilities, may be a step in a process which as a whole may have that effect. In such cases, the process may give rise to matters justiciable at the suit of an individual.
Your Honour discusses the “disguised extradition” cases, which, of course, are abuse of process cases in the end.
KIRBY J: Yes. You will recall that I mentioned the either/or issue and clearly the purpose of section 42 is to protect intergovernmental relations, and there is no question about that, but that does not really answer the question as to whether a person who is the beneficiary of those intergovernmental relations does not himself or herself also have certain rights. Now, I cannot put my finger on the stream of cases, but my recollection is that there has been a development in the law, instanced in an oblique way by decisions such as Trident, that gives rights to persons who are not themselves the beneficiary of, in that case, contract, but who can gain the legal protection of something which, though formally provided for the protection of others, is in fact and in substance for the protection of a third party.
Now, I just indicate that I will want myself to look at that, because my impression is that there have been a number of developments in the law in which the law has, as it were, looked at substance rather than form in respect of third party rights and if one does that in respect of section 42 there is no doubt that it inures to the benefit of the person who is the subject of extradition.
MR BENNETT: Your Honour, we submit that is achieved here by the doctrine of abuse of process, which contains within it the discretionary elements I have referred to and enables a court to say, “Well, let us look at this case and see is the substance of what happened within the spirit of the specialty rather than the letter, if the letter has been breached”.
KIRBY J: Would you help me with this? The appellant did not raise this point at his trial in answer to the presentment and, indeed, first raised it in the Court of Appeal. Did he, in the Court of Appeal, move, as it were, separately to prevent further prosecution of the verdict of the jury and the conviction of the judge on the basis of abuse of process? There was some mention in the last hearing about abuse of process, but was there ever a motion to stay the execution of the jury’s verdict on that footing or not, separate from his ‑ ‑ ‑
MR BENNETT: My learned friend says no. We do not know, of course. My learned friend says no.
KIRBY J: You might find the ground moves under your feet in the middle of this case. If you add them up, somebody moving around the courtroom with the goal post changing, you might find that that is also done, somewhere in the Supreme Court of Victoria.
MR BENNETT: That is a hazard interveners face all the time, your Honour.
KIRBY J: It may be one you brought on yourself.
MR BENNETT: Your Honours, we also of course rely on the ability, as I said a moment ago, of the State in section 42 to waive the provision. It would be unusual to have something designed for the protection of the individual which could be waived by the foreign State.
KIRBY J: But would you not think that normally such intergovernmental or international arrangements would be the subject of diplomacy and other such matters are not a statute which propounds a principal addressed to the Commonwealth of Australia? Why bother to put this in the statute governing the conduct of the Australian government vis-à-vis foreign governments, when that is really a matter of intergovernmental arrangement as distinct from something which inures to the benefit of a third party?
MR BENNETT: Of course, your Honour, the Extradition Act is not a code in relation ‑ ‑ ‑
GUMMOW J: No, section 11 is vital, is it not?
MR BENNETT: Yes.
GUMMOW J: Section 42 is perhaps a starting point which can be moved under section 11 in a particular treaty.
MR BENNETT: Yes.
HAYNE J: But is a consequence of your argument that the individual could not bring habeas if detained in breach of section 42 because 42 speaks of “be detained or tried in”. If a person is detained in contravention of the command, it is a large step to take to say that that individual could not bring habeas.
MR BENNETT: We submit he could not, your Honour. Could I just add this – to section 11 can I add section 3:
The principal objects of this Act are:
(a) to codify the law relating to the extradition of persons from Australia . . .
(b) to facilitate the making of requests for extradition by Australia –
So it is not a code in relation to extradition to Australia, although it is in relation to extradition by Australia. For those reasons and the reasons put in our written submissions, we submit that the section does not directly confer rights on an individual. The second submission is that if it does it merely creates something analogous to a plea in bar, in effect, a defence which one raises in the normal course before being asked to plea. It is analogous to autrefois acquit, autrefois convict and pardon, which are the three traditional please in bar.
HAYNE J: That then will require consideration of what we do with R v Kent‑Newbold (1939) 62 CLR 398 which says, amongst other things, that the plea of autrefois, in effect, is not to be entertained while a plea of not guilty is extant.
MR BENNETT: No, it is usually done first, your Honour – usually.
HAYNE J: And that if the plea of not guilty is entered, it is too late to enter a plea of autrefois seems to be the result.
MR BENNETT: Yes. That may or may not be the case here, your Honour, but we do not make any submission about that. We refer to those pleas by way of analogy. I should say that in Re Tracey, although that concerned a statutory provision analogous to autrefois acquit, no one seems to have argued that it had the status of a plea in bar rather than a matter going to jurisdiction and the Court simply did not analyse that distinction. So we submit that to the extent that the case is authority in relation to a plea of autrefois or a plea in bar, it is, in effect, per incuriam. No one seems to have argued that and it is not discussed in the judgments.
KIRBY J: I have not quite understood that submission. Could you elaborate that a little.
MR BENNETT: Yes. I condensed it a little too much, your Honour. In Re Tracey; Ex parte Ryan that concerned a person charged before a court martial. There were two issues in the case. The first was whether, notwithstanding judicial power under Chapter III, one could have a non‑Chapter III judge deciding guilt or innocence of a criminal charge. The result of the case was that it is an exception. I do not know that one could put it much higher than that.
The second issue concerned a section in the military justice legislation which said, in effect, if you are convicted or acquitted of a military charge, then the State cannot try you for the same offence. That was held, in the part of the case I challenge when I get to the third part of my submissions, to be invalid on the basis that the Commonwealth cannot detract from the jurisdiction of State Supreme Courts in State matters. I will come to that.
The present submission I am making is that if this is analogous to a plea in bar, one has not taken away jurisdiction, one has simply laid down a federal rule which is superimposed on it as to the manner in which the court exercises it.
KIRBY J: Why was that second step not within the incidental power under the defence power for the Commonwealth to enact a provision sustaining the effectiveness of its military justice system? Why did the court reject that?
MR BENNETT: Your Honour, I will come to the passage when I get to the third part of my submissions, and launch my full‑scale attack on the case.
KIRBY J: I will look forward and will wait with anticipation.
MR BENNETT: But, your Honour, at this stage I am simply saying that one can distinguish it on the basis that here the argument is that we do not take away jurisdiction. We simply tell the court how to exercise it by laying down a substantive federal rule. The two analogies, two very easy analogies – the first is the bankruptcy analogy where the Bankruptcy Act says that a person becomes bankrupt; that has a certain effect on State proceedings brought by the bankrupt under State law in State courts, results in a permanent stay. That was held to be valid in Campbell v Metway Leasing in the Full Federal Court in (2002) 195 ALR 271.
The other analogy is the decision of the Supreme Court of Victoria in the Court of Appeal in R v Reid [1999] 2 VR 605. That was a case involving, your Honours may recall, the founder of Compass Airlines. Some evidence was taken in the United States under the Foreign Evidence Act. The Foreign Evidence Act provided in effect, which was a federal Act, that if evidence was obtained under that Act it was admissible at a trial in a State court for a State offence. The Court of Appeal of Victoria held that that was a valid federal enactment, it did not take jurisdiction away from the State court, it merely laid down a rule which, procedurally rather than substantive – evidentiary rather than substantive in that case – which the court was bound to comply with. Of course under the external affairs power there was power to pass foreign evidence legislation.
So those are examples of cases where – and of course one could think of many other examples. Felton v Mulligan perhaps is the most obvious one, where federal law provides a defence, and a matter which is entirely a State matter, up to the point where the defence is filed, becomes a matter within federal jurisdiction when a defence is filed under a federal Act. Now this is analogous to that. This is creating a defence. Admittedly a king hit and preliminary defence if one likes, but a defence. We submit there is no reason why federal law cannot do that. Felton v Mulligan, your Honours may not be familiar with, but it is (1971) 124 CLR 367.
That brings me to the third – I should just say this too. One can have situations where the federal intervention in that form is short‑lived. For example, if someone in a State matter involving entirely State issues, one party applies to amend the statement of claim or defence to add a federal claim or federal defence, that motion is in federal jurisdiction. If the motion is refused, for example on discretionary grounds that it is brought too late, the matter continues to be in State jurisdiction. Similarly, there can be a contested application under the Service and Execution of Process Act in a State matter, that application is in federal jurisdiction. Once it is over the matter reverts to State jurisdiction, and that is Flaherty v Girgis (1987) 162 CLR 574, which we referred to in footnote 28. There are other examples of cases where federal jurisdiction can interpose in relation to an aspect only of the case.
The final matter then concerns Re Tracey; Ex parte Ryan (1989) 166 CLR 518 and, as I say, I seek leave to invite your Honours to overrule it. In the majority judgment the question we are concerned with is discussed at page 574 at the bottom of the page. What is said is that the provisions analogous to autrefois acquit:
Sub‑sections (3) and (5) of s 190 purport to withdraw from the civil courts the jurisdiction otherwise vested in them to try a civil court offence.
As I say, no one argued with it was not jurisdictional there.
By these sub‑sections, defence members and defence civilians are preserved from what was submitted from the Commonwealth to be double jeopardy. However that may be, provisions which purport to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law can find no support in the Constitution. State courts are an essential branch of the government of a State and the continuance of State Constitutions by s 106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions.
At page 547 in the judgment of the Chief Justice, Justice Mason and Justices Wilson and Dawson, at the top of the page their Honours say this:
In any event, the desirability or undesirability of a person being exposed to double jeopardy sheds little light upon the question . . . The section seeks to protect against double jeopardy and proceeds upon the assumption that statutory provision is necessary to achieve that objective. The method chosen in the provisions under challenge is to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws. For our part we doubt whether provisions of that kind, which strike at the judicial power of the States –
shades of pre‑Engineers’ doctrines –
could ever be regarded as within the legislative capacity of the Commonwealth having regard to s 106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth.
They then make this concession:
No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s 51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States.
That, we submit, is a simple triumph of form over substance. You can do it, but you must not use the word “jurisdiction”. You have to do it ‑ ‑ ‑
GUMMOW J: I understand that, but what do you say about the Solicitor for Victoria’s submissions, paragraphs 33 and following? She says you are doing just the same thing. She says you are turning it all around and turning form into substance. Have a look at paragraphs 34 and 35 on pages 15 and 16, if you would, of her submissions.
MR BENNETT: Your Honour, there are two answers to that. The first is that the Court still has jurisdiction to determine its own jurisdiction and in doing that it is acting in federal jurisdiction by deciding that question, then going back to State jurisdiction if it decides that there is no objection. So that is the first simple answer. Perhaps that is the answer, your Honour. But we submit that once there is a federal power under section 51, then, if that power would otherwise extend to taking jurisdiction away from a State court, there should be an ability to do so.
May I just give a couple of obvious examples. The clearest examples are cases of diplomatic immunity, immunity of federal parliamentarians while sitting in the House. There is this provision in the present case, there are foreign heads of State, matters of that sort, visiting forces. Why, one asks in those cases, should the Commonwealth be confined to saying that people in those situations can merely be given a defence, but cannot be saved from the effort and inconvenience of being impleaded in the State court, where a Commonwealth purpose requires it.
For example, suppose there were soldiers on active duty overseas and suppose a group, which was opposed to the war, endeavoured to frustrate the war efforts by bringing civil proceedings, or even criminal proceedings, in State courts under State law. Why should not the Commonwealth be entitled to say this is interfering with the war effort, the State courts may not hear these cases, may not accept the proceedings? It would squarely be within the defence power. Why should it be forced to go through the subterfuge, or the indirect way of achieving it, and say they can have a defence, thus perhaps forcing them to appear, file a defence and argue it, rather than having a simple refusal of jurisdiction?
GLEESON CJ: Is there a further consideration that these extradition arrangements often depend on reciprocity and the foreign State might be reluctant to make an arrangement with Australia, by reason of its federal system Australia could not give the same kind of assurance that the foreign State could give?
MR BENNETT: Yes, that is one of the reasons for the power, your Honour. There is a famous United States example, the LaGrand Case where the International Court of Justice pronounced preliminary measures ordering that an execution not take place and the State of Arizona said, “We are not concerned with the country’s foreign relations”, and they went ahead and hanged the person while the proceedings were pending in the International Court. I am told that the practice now, in relation to the United States, is that many countries require not only an undertaking from the United States about execution, but also an undertaking from the State and perhaps from the city or from the relevant prosecutor.
That is one of the problems with a federal system and that is a reason why a federal system needs to be able to say, if we have entered into a treaty that foreign heads of State or diplomats are not subject to our courts, we can make it unlawful for a person to implead them in State courts. We can simply take the jurisdiction away from the State courts and, in my respectful submission ‑ ‑ ‑
GUMMOW J: When you say “take away” it just means pass a law on which section 109 operates to remove the relevant portion of the generally expressed State law which would otherwise authorise the State to do what the Commonwealth does not want it to do.
MR BENNETT: Yes, or, your Honour, make it an offence to commence proceedings.
GUMMOW J: Yes.
McHUGH J: Have you read Jones v Clinton, the United States decision – are these issues discussed in there, because one of the issues there was whether or not the President can get a stay of the proceedings against him.
MR BENNETT: I am not aware of a discussion of this issue in that case, your Honour. I do not think there was any federal statute involved in that case; it was rather a matter of implied executive immunity and that involved somewhat different questions.
McHUGH J: Yes.
MR BENNETT: But the present question would have arisen if the United States law had said a State court shall have no jurisdiction to hear a case against a sitting President. We have listed in the schedule to our submissions a number of Australian laws concerning visiting forces, diplomats, visiting heads of State and members of Parliament, people of that sort, which do take jurisdiction away.
KIRBY J: Was there any thinking in Re Tracey; Ex parte Ryan that the point of distinction, which might distinguish it from this case, was these were military tribunals within the Executive Government that could not impinge upon the judicature of the nation, which is established by Chapter III.
MR BENNETT: It was not put that way, your Honour. The argument seems to have been partly a section 106 argument and partly a general implication that one could not detract from State jurisdiction of State Supreme Courts. In relation to section 106 ‑ ‑ ‑
GUMMOW J: That is subject to 109.
MR BENNETT: Yes, and, your Honour, it is subject to section 51.
GUMMOW J: Yes.
MR BENNETT: Which this Court has said in the cases referred to in our footnote 37, that is the Port MacDonnell Case, the Seas and Submerged Lands Act Case and, most recently, in Marquet. The problem being, of course, that both section 51 and section 106 say “subject to this Constitution”, so one has a sort of renvoi between those two. The Court has resolved that by saying that section 51 prevails. In any event, it is a very long bow to say that section 106 – preserving State constitutions – means one cannot in an area of federal concern, as a result of a federal power, take away the State’s jurisdiction for a federal purpose in some limited way.
The appropriate test, we would submit, is the test this Court laid down in Austin, the revised Melbourne Corporation doctrine. We have used the phrase in paragraph 39:
whether, looking to the substance and operation of the federal laws, there has been, in a significant manner, a curtailment or interference with the exercise of State constitutional power.
KIRBY J: What is the paragraph in Austin?
MR BENNETT: It is [168], your Honour, and it is also paragraph [124] which is quite useful on this issue. The reason there is no significant interference here is that, not to put too fine a point on it, Victoria would not have got him at all except for the specialty assurance. In other words, he is only able to be before the Supreme Court because we have extradited him and given a specialty assurance. How are we diminishing the powers of the Supreme Court if we say in that situation, where you would not have been able to exercise your jurisdiction at all but for our giving this assurance, we wish to be able to make sure that you do not? In my respectful submission, assuming your Honours are against me on the first two submissions, there is simply no reason why that is:
a significant . . . curtailment or interference with the exercise of State constitutional power.
KIRBY J: That last argument is a rather weak one, is it not, because once you have the person back then they are in the hands of the judicature of the State, then they pick up whatever constitutional protection that judicature attracts, either as a State Supreme Court, as such, or because of the status of the State Supreme Court in the federal Constitution.
MR BENNETT: But if the limitation is one which only goes to the enforcement of something which had to be done in order to get him there, then, in our respectful submission, nothing has been curtailed. They would not have had it but for us and but for the undertaking. It is simply applying the phrase:
in a significant manner, a curtailment or interference with the exercise of State constitutional power.
We submit there is not. If one takes the slightly higher test used in paragraph [115] of Austin, one talks about a law denying:
that there will continue to be State governments separately organised.
One is a long way from that. Of course, section 106 does not expressly mention Supreme Courts. It is a section dealing with State Constitutions and the Victorian Constitution, like, one assumes, the Constitutions of the other States, sets up the Supreme Court. But to say that one takes away jurisdiction over particular offences in particular circumstances is a long way from interfering with the ability of the States to function as States or “in a significant manner” curtailing or interfering with their constitutional power. It is simply a consequence of what has occurred.
So, for those reasons, we submit that Re Tracey is a triumph of form over substance. It is a case that ought not to be followed. It does not represent a culmination of a line of previous cases. It comes out of nowhere and out of, in effect, an implication found in section 106. One does not get there from an implication in Chapter III, we would submit, because although Chapter III refers to the conferring of federal jurisdiction on State courts, one cannot get from that an expressio unius that one cannot take away any State jurisdiction from State courts under any circumstances, even if it is otherwise necessary or desirable to do so in the course of exercising a Commonwealth power.
One must remember in Tracey v Ryan the Court thought that the provision in question was remote from the defence power. So it was in that context that the Court decided that and it did not really need to go further and make these other remarks which I have taken your Honours to.
Now, as I have submitted, the State court still has power to determine its own jurisdiction and in doing so of course it is exercising federal jurisdiction, and there is no reason why that determination should be seen as different from the hearing at which it determines the existence or effect of a defence, if this is treated as a defence under federal law.
GUMMOW J: Mr Solicitor, I am having trouble understanding section 44 of the Extradition Act, which in a way has to be read with 42, I suspect. Section 44(1)(e) has that “shall not be tried”.
MR BENNETT: Yes. I think, your Honour, what that is doing is dealing with the situation where the speciality undertaking is a particular form of undertaking which differs from the normal form of speciality, and it is simply creating scope for that. To that extent, one would have thought that section 44(1)(e) would be treated the same way as section 42.
GUMMOW J: What about (f)?
MR BENNETT: Well, your Honour, it is hard to see why detention ‑ ‑ ‑
GUMMOW J: I am worried about habeas corpus you see.
MR BENNETT: Yes. Paragraph (f) would deal with a habeas corpus situation and would also ‑ ‑ ‑
GUMMOW J: When you say deal with it, would habeas corpus be available in respect of (f)?
MR BENNETT: Your Honour, it would probably be in the same category as section 42, on my first argument. If your Honours are against me on my first argument, it might support a claim for habeas corpus, if your Honours were against me on the first argument. But, again, it is not something which arises in this case where ‑ ‑ ‑
GUMMOW J: This word “detained” appears in 42(a).
MR BENNETT: Yes. It would not involve the third argument because it would not really be a matter of taking away jurisdiction in the same way. Detaining, of course, particularly detaining in the period before one first goes before the court, may not be necessarily pursuant to a judicial order, when the person first arrives, for example. Those are my submissions.
KIRBY J: We did receive submissions on the issue of abuse of process, as I recollect it, in the first hearing saying that although the matter had not been raised in the Court of Appeal the Court of Appeal ought to have…..the proceedings. So that that issue is in a sense before this Court.
MR BENNETT: Yes. We do not dispute it is before the Court, your Honours, and we say it is the appropriate way for the matter to be dealt with, which means ‑ ‑ ‑
KIRBY J: But we are a court of error and, therefore, if the matter was not raised in the Court of Appeal, it is at least procedurally most curious that we would be granting relief here in respect of an application which was never formally made to the Court of Appeal.
MR BENNETT: Your Honour, it may be a question not so much of it not being before the Court as of the question of label. The issue was substantially argued, even if the label “abuse of process” was not placed on it. In that sense, it is before the Court of Appeal.
KIRBY J: Does the Court of Appeal in Victoria have some original power, as distinct from the judges of that court, to grant relief in the nature of a stay, or is that a matter in the Supreme Court of Victoria that belongs to a single judge?
MR BENNETT: Your Honour, it does not arise here because under section 568 the court can allow the appeal if there was a miscarriage of justice, and that would let in abuse of process.
Of course, one of the matters that would be taken into account there would be prejudice to the Crown because the Crown might well say, “Had you raised this on the first day of the trial, we would have rushed off to the United Kingdom and got a consent”.
KIRBY J: It does not sound as though that could have been got overnight from what you have told us.
MR BENNETT: No, the trial would have had to have been adjourned, your Honour. If the Court were to come to the view that the matter turned on that, it would have to decide whether it would decide the abuse of process issue itself – and arguments were put to this Court on the last occasion – or to remit the matter to the Victorian Court of Appeal to be dealt with. May it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Mr Holdenson.
MR HOLDENSON: The first matter that I have to deal with, it would seem, is this matter about which the Court was informed at 10.15 this morning. I had 45 minutes advance notice. I found out at about 9.30. We assumed that this notion of waiver of speciality, which is the expression used by our friend, is the consent referred to in section 42(a)(ii) of the Act. I am not sure what the respondent has to say about all of this, but in any event it leads me to, at this point, make the following points on this appeal.
First, with respect to the matters raised by your Honour Justice Hayne with respect to section 568 of the Crimes Act, in our outline of submissions last time round for the hearing in May we dealt with that in paragraph 8, which is to be found on page 19 of that outline. Your Honour Justice Hayne is absolutely correct when you identify that the expression in section 568(2) is “either/or”, which makes the Victorian statute very different from the New South Wales criminal appeal statute.
HAYNE J: Which order do you say should be made, were you to succeed?
MR HOLDENSON: We said in that outline there that the Court can make an order for a new trial, albeit on a presentment not yet made, and identifying the offences the subject of the extradition, namely, the conspiracies.
HAYNE J: I do not want to bog us down in procedural niceties, Mr Holdenson, but underneath these procedural issues it seems to me there are some substantive enlightenments to be found.
MR HOLDENSON: Yes.
HAYNE J: That you would leave the first presentment uncleared, is that right?
MR HOLDENSON: It would be cleared in the sense that an order for retrial would be made on a presentment yet made. There is authority for this – I mean, it has even happened in this Court – and the authority we cited in that regard in paragraph 8.3 of the outline in May is Kelly v The King (1923) 32 CLR. The same point happened in Parker [1977] VR. But can I say this, in any event – and your Honour Justice Hayne may well recall this line of cases – in 1994 in Victoria the case of R v Hassett; Ex parte Director of Public Prosecutions (1994) 76 A Crim R 19 was decided by the Full Court of the Supreme Court of Victoria. That case decided that counts in presentments which alleged the commission of an offence contrary to section 18 of the Crimes Act were duplicitous.
The effect of that was this. In the pipeline there were any number of appeals against conviction where persons had been convicted on those duplicitous counts. The Court of Criminal Appeal, and subsequently the Court of Appeal when it came into being in June 1995, proceeded on the basis that they had an inherent power, probably more appropriately called implied power, to quash the counts, notwithstanding the fact that that phrase does not appear in section 568.
HAYNE J: Let it be assumed for the purpose of debate that such a power can be found.
MR HOLDENSON: Yes.
HAYNE J: At the end of the day is that not the end point to which your argument must seek?
MR HOLDENSON: Yes.
HAYNE J: Quashing the current indictment.
MR HOLDENSON: Yes.
KIRBY J: I have a problem with ordering a retrial. This problem is this, that traditionally, and this Court has said it many times, the Court does not involve itself in the prosecutorial process. For all we know, for reasons best known to the Crown, the Crown might not proceed on a new trial on the counts of conspiracy. So why would the Court, not knowing what the Crown’s decision is, and that decision not having been made, order a new trial on counts that have not been formulated and may never be pressed?
MR HOLDENSON: What your Honour is putting to me is correct, but it assumes one thing. It assumes that the order for a retrial is in the nature of some sort of mandatory injunction.
GLEESON CJ: Exactly. It has been repeatedly said in the Courts of Criminal Appeal that an order for a new trial is not a direction that there shall be a new trial.
MR HOLDENSON: Correct. And so it is just an order to get it back to the court of trial. So the court, in my ‑ ‑ ‑
KIRBY J: But on what? On a yet unformulated presentment?
MR HOLDENSON: Yes.
KIRBY J: That may never occur. I just find that odd.
MR HOLDENSON: But if it be done on the conspiracy counts this Court could order a new trial on the conspiracy counts, which of course were the subject of the ‑ ‑ ‑
KIRBY J: But the Crown may never proceed on those grounds.
MR HOLDENSON: But they can file over. They have the entitlement under the Crimes (Criminal Trials) Act to file over a new indictment specifying something else if they want to, and they could nolle it, that is enter a nolle prosequi, and let him out and go back to England.
GUMMOW J: Now, Mr Holdenson, the question, it seems to me, at the beginning and the end of the day is what is the translation of the phrase “shall not be tried” in section 42 and perhaps at 44 of the federal Act? What is the translation of that phrase “shall not be tried” into the relevant procedural criminal law of Victoria?
MR HOLDENSON: Those words are translated to be “no person shall be tried” and hence those words constitute a command to both prosecutors and trial judges and ‑ ‑ ‑
GUMMOW J: Well, that is meaningless, with respect. Translated into what section of what Victorian law? Is it 390A? We are not going to get anywhere talking in generalities.
MR HOLDENSON: Section 42(a) is a command in a Commonwealth Act directed to State prosecutors and hence impacts upon any statutory power which might be invoked by a State ‑ ‑ ‑
HAYNE J: Prosecutors do not try people, whatever defence counsel might feel like.
MR HOLDENSON: They cause people to be tried.
HAYNE J: Exactly. Are we not in the realm of 390A of the Crimes Act, namely that you have available a special plea? Perhaps you have available a demurrer, I think not, but do you not have available a special plea in answer on arraignment?
MR HOLDENSON: You certainly have that, but we say you have more.
GUMMOW J: Why? Why do you have more? Why can you hedge your bets?
MR HOLDENSON: Well, I want to ‑ ‑ ‑
GUMMOW J: As you have been doing.
MR HOLDENSON: No, I have just been putting the point every way which way. I am not demonstrating any weakness in hedging bets.
HAYNE J: You are paid to have the belt and the piece of string, Mr Holdenson, but why should you?
MR HOLDENSON: To answer your Honour Justice Gummow’s question rather than your Honour Justice Hayne, let me say this. One of our arguments is yes, there is something akin to what can be raised by an accused person under section 390A but we also say, and I will say it quickly because I am repeating myself, we also say that section 42(a) operates as a command which has the effect of disempowering prosecutors from making presentments, therefore operates upon all those statutory powers which may be exercised otherwise by prosecutors in making presentments.
HAYNE J: Well, let us test that. Could Mr Truong on arraignment have pleaded guilty to the presentment filed against him?
MR HOLDENSON: He could have uttered the words.
HAYNE J: And if he had ‑ ‑ ‑
MR HOLDENSON: He would have been sent ‑ ‑ ‑
HAYNE J: ‑ ‑ ‑could conviction and sentence been entered and passed accordingly, validly?
MR HOLDENSON: It depends upon which one of my arguments succeeds. If I were to succeed on the argument that section 42(a) has the effect of disempowering a prosecutor from making a presentment specifying those offences, then he would be in the situation of having pleaded guilty to a count which was invalid and, if that is the case, proceedings thereon are invalid, including conviction and sentence.
HAYNE J: Thus, in the AB Case, AB could not validly be convicted of and sentenced for the 19 counts additional to those for which he had been extradited from the United States; is that the position?
MR HOLDENSON: Yes, and the authority for that proposition is the English case of Davies, where if ever there was consent to a prosecution on the facts, that was the case. He even consented by way of a signed memorandum ‑ ‑ ‑
GUMMOW J: I know. Davies is not a case which displays, let us say, a compelling sequence of reasoning.
MR HOLDENSON: Well, I will move on then and perhaps if I take your Honours to ‑ ‑ ‑
GUMMOW J: You may dispute that proposition.
MR HOLDENSON: I do, but I disputed it in May; I am not going to repeat the dispute. In paragraph 11 on our outline, which is on page 8 – that is the outline for today’s hearing – your Honours will see a list of cases and one must recognise that with respect to that list of cases, or more particularly the reasoning therein, one does not find the subtlety and the analysis in which this Court is now engaged, but if I could just go through the cases quickly.
Davies is the case with which your Honours are more than familiar and it is held there that it goes to the jurisdiction of the court. If that be correct, that is, it goes to jurisdiction, that is always a point which may be taken by an accused person to prevent himself from being convicted and sentenced or even, if he were to plead guilty, on your Honour Justice Hayne’s hypothesis, a point which can be taken on an appeal against conviction.
Now, in AB v The Queen there are really two judgments to be dealt with, first, the joint judgment of your Honour Justice Gummow and your Honour Justice Callinan, where – and I did not identify this paragraph – paragraph 55, which is identified on the outline, should be read in conjunction with paragraph 52, which speaks in terms of the accused having rights to prevent his being prosecuted on certain charges. In the judgment of your Honour Justice Kirby, which, in our submission, deals with the entitlement of the accused to confine – the word is “to confine the charges against him”, we also say that your Honour’s judgment follows Davies and then at paragraph 88 says the prosecuting authorities could not try him. It gets very close to the language of section 42. Barton v The Commonwealth, the next case there cited, at the foot of page 500, Justice Mason, as he then was, spoke in terms of an “immunity from trial”.
Boog (1974) 23 FLR 417 is perhaps the real world example in this country, where his Honour Mr Justice Fox, then a member of the Supreme Court of this Territory, dealt with a motion by an accused to quash a count on an indictment after there had been an arraignment at which the accused had pleaded not guilty and the jury empanelled and put in charge, it was then that the prosecutor attempted to prove Canada’s consent – to use today’s language, the consent of the United Kingdom under section 42(a)(ii) – and the accused succeeded because the consent was ruled inadmissible. But, as I said before, one does not find in the judgment the subtlety that one will find at the end of the day in the judgments of this Court. I was not proposing to spend any more time on Boog, but that is as good as we can get in Australia with respect to a real live example where the point succeeded.
Now, in this case, if we just change the facts all those years ago before his Honour Justice Vincent, the learned trial judge in this case, had this been a consent case by the UK it would have been interesting to see what orders his Honour Justice Vincent would have made had he determined the question of the consent, as did his Honour Mr Justice Fox in the case of Boog. It would be interesting to hear what Justice Vincent would have done, what orders he would have made. In any event, we say that those orders would have been such as to ensure, assuming it is a consent case and the consent was not correct or not in admissible form or whatever, but in any event there would have been no trial, no conviction, no sentence.
The case next listed, Foster, that is a decision of his Honour Mr Justice Drummond in the Federal Court - Foster eventually came here. That was a case which dealt with ‑ the passage in the case I should say, dealt with the breach of a specialty assurance, and Mr Justice Drummond held that it conferred an important protection on fugitive offenders. I think his Honour should have said alleged fugitive offenders. Hamzy, the decision of the New South Wales Court of Criminal Appeal, necessarily assumed that section 42 conferred some sort of a right on an accused person. If it was not necessarily assumed then the judgment is not necessary because the point was there has been a breach of section 42 which failed as a matter of fact.
KIRBY J: Could I ask you this. We had better get this clear before we all part today. You raised an objection earlier, what might be described as the Mickelberg objection, that the Court cannot act upon the point that the Solicitor‑General for the Commonwealth raised earlier today because to do so would require it to receive evidence of what, if anything, the United Kingdom had done and you object to the receipt of that evidence.
MR HOLDENSON: You said “had done” – will do.
KIRBY J: What are we to do if the Commonwealth’s application is acceded to by the United Kingdom with or without giving your client the opportunity to be heard in relation to what it should do and an attempt is made to signify that to this Court? I think we should have some clear understanding of what is going to happen before we part because the Commonwealth may want to do something and the Crown may want to support it and you might be jumping up and down and we do not know whether we are to receive the intimation or not.
MR HOLDENSON: I want to be here to jump up and down and present argument as to why it is that he should not be permitted to rely upon ‑ ‑ ‑
GLEESON CJ: That is common ground. As I understand it, the Solicitor‑General for the Commonwealth has said if that happens, the proper course for the Court to take is to reconvene the proceedings. That is the only course, is it not?
MR HOLDENSON: Well, yes.
CALLINAN J: Why would that not be a public record within section 118 of the Constitution to which this Court could give recognition?
MR HOLDENSON: I will just have regard to section 118 but even if it is a public record, that is not an exception to the principle enunciated by this Court in both Mickelberg and Eastman.
KIRBY J: Is it a public record within the Constitution if the United Kingdom does something? I mean, we have changed our relationship with the United Kingdom since the Constitution was written.
MR HOLDENSON: I am just going to have a look at section 118 but ‑ ‑ ‑
KIRBY J: One would normally interpret that to be a public record of the Commonwealth within Australia, would it not?
MR HOLDENSON: I will have regard to it ‑ ‑ ‑
CALLINAN J: It becomes a public record, does it not, once we receive it? Why would it not be a public – once it is received in the country, it becomes a public record of both the State and the Commonwealth perhaps.
MR HOLDENSON: The first submission ‑ ‑ ‑
CALLINAN J: I am not asserting it; I am just raising it as a question.
MR HOLDENSON: The first submission would be that section 118 speaks in terms of public records of States as distinct from anything else.
CALLINAN J: Why would it not be a public record of the State also?
MR HOLDENSON: State with a capital S, State of – it would be the public record of the United Kingdom, not a State. “State” here in section 118 means Victoria, Western Australia and so on.
KIRBY J: Anyway, it may be that what the Chief Justice has said is the answer to it, that you will jump up and down and the Commonwealth will not do anything, the matter will be relisted and this saga will go on indefinitely.
GLEESON CJ: Assuming we get to that.
GUMMOW J: Unless we give judgment in the meantime.
MR HOLDENSON: Please give judgment. I was frustrated this morning when I learnt this at about 9.30 and the first thing I did was have regard to section 78A of the Judiciary Act to see whether or not the Commonwealth could adopt the course which they have attempted to put here today. That is the trouble with interveners. They take over the case. Mr Coghlan and I were getting along fine and doing fairly well, I thought. I might say this. If we do come back there will be, apart from anything else, an application in respect of costs. They are bringing us back again.
GLEESON CJ: We understand your complaint about people taking points to the later stage.
MR HOLDENSON: There is authority for it. If your Honours please.
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: I apologise for being an intervener, your Honours. My learned friend referred to Davies’ Case. May I just say a number of things about that case. The first is that the English statute used the words that the person shall not be “triable or tried”. His Lordship said after putting those words in italics, “those words must be stressed” at page 125. So it involved a different statutory provision.
The second point is that – and I say this with all the contempt of an Australian practitioner used to Australian judges – it is only an extempore decision.
KIRBY J: I do not know that you can say – there have been some great extempore decisions, even some written by people here present.
MR BENNETT: But it is not as good as real ones, your Honour. Of course, the actual issue is only discussed very briefly at the end of the judgment. Finally, of course, it predates Horseferry, so at the time of this case the court did not have the advantage of the view that one might deal with it as an abuse of process because it is before Horseferry Road. So, for all those reasons, one should not place any great weight on that case.
My learned friend then referred to the decision in Boog but, of course, that was a case about proof of the consent and the manner in which one proves it. It was a very different type of case, it did not concern the present issues at all. Ha, the decision of Justice Weinberg, was a case which relied on American authorities, and Rauscher of course is an American authority, and the problem with both is that in the United States a treaty is part of the substantive domestic law, having domestic force of its own right, and that creates a totally different position in the United States in this area.
Without going through them, your Honours, we submit that none of the cases in paragraph 6.3 of my learned friend’s submissions support the argument that the section is jurisdictional rather than in any of the other categories which have been discussed in argument.
Finally, in relation to McDonnell v Smith in relation to retrospective consent, that is a matter which can be argued later if it arises, but the phrase used in that case was “without the consent the person shall not be prosecuted”, so it went to the initial act of prosecution which had to have a prior consent. It is not authority for the proposition that no consent can be retrospective. Obviously, as we know, there are many statutes where consents are and can be retrospective.
Your Honour, there was some debate about section 44 of the Extradition Act and, as I think became clear this afternoon, that is dealing with a separate and very narrow subcategory of extradition, usually in cases where the foreign country wishes to try the person for some offence but is prepared to allow us to go first. Your Honours will note that section 44 has the word “and” between (b) and (c). The requirements of (a), (b) and (c) are cumulative. It refers to the custody of the person travelling to and from Australia. So it is dealing with someone who has been sent back here to be tried and dealt with and who we have then agreed to send back at the end of the process. It is a very special type of case. It is referred to in section 42 because your Honours see that section 42 says:
Where an extraditable person in relation to is surrendered to Australia . . . or, in a case where the person was surrendered to Australia for a limited period, has been returned –
So it is picked up in section 42.
My learned friend referred to McWaters v Day as – I am sorry, I have now moved to – my learned friend assisting for Victoria. She referred to McWaters v Day. Your Honours, that case cannot be relied on as affirming Tracey in any way. It was dealing with a different aspect of Tracey. It was dealing with the question of whether the system of military justice had the same purpose as the system of criminal justice and matters of that sort. It has no relevance to the issues from Tracey with which we are concerned, and I stand by my submission that Tracey came out of nowhere and has gone nowhere. In my respectful submission it is an isolated anomalous case that should be overruled.
Now, my learned friend, the Solicitor from Western Australia, referred to an argument based on section 76(i). I did not put an argument based on section 76(i). That is the traditional bootstraps argument, that because someone has raised a constitutional argument we are in federal jurisdiction and therefore we apply federal jurisdiction to everything. I never put it on that basis. The way I put it was, as an alternative argument, that the issue of whether there was an objection under section 42 of some kind is an issue which arises in federal jurisdiction under section 76(ii), and that was the basis on which I put it.
McHUGH J: Section 77(ii)?
MR BENNETT: Section 77(ii), yes, I am sorry, your Honour.
KIRBY J: In AB there had been no objection before Judge Freeman and indeed I think no objection in the Court of Criminal Appeal. It was only in this Court that the point was taken, if I am not wrong. So that the Court dealt with the matter, although the point had not been raised earlier.
MR BENNETT: Yes. Your Honour, it is only relevant to the question of whether – it is a constitutional question of whether the provision is one which takes away State jurisdiction or operates on federal jurisdiction. That is the only relevance we would submit.
Your Honour, the appellant in reply referred to the Mickelberg point. I do not want to get involved in that at this stage. We would say it is the sort of subsequent event the Court can always look at, analogous to a settlement. If a respondent comes to this Court on an appeal and says, “But I settled the case with the appellant yesterday”, the Court does not say, “We can’t hear that; that is new evidence within the meaning of Mickelberg and Eastman”. It is ‑ ‑ ‑
KIRBY J: But what if the party disputes it and says there was no settlement, then there would be a need for evidence. Similarly, if the party says, “Well, we had a right to be heard by the United Kingdom and they didn’t give us that right”, somebody would have to pass upon that question.
MR BENNETT: The Court would have to work out a means of determining that question perhaps by remitting it, perhaps by having it dealt with by a single Justice. One would have to look at the rules and see what means were available if there were a genuine dispute about the fact. Here, the only dispute is likely to be a simple one of law which, in any event, could be sent back to the Court of Appeal of Victoria.
KIRBY J: Perhaps you will come along and argue that Mickelberg and Eastman should be reopened.
MR BENNETT: Your Honour, I ‑ ‑ ‑
KIRBY J: Justice Callinan and I, at least, would be interested to hear it.
MR BENNETT: Yes. Your Honour, so far as section 118 is concerned, we would submit it is the Evidence Act rather than section 118, which I think does refer to taking judicial notice of signatures of officers of other Commonwealth countries. The only other matter is in the Extradition Act. I should remind your Honours that section 41 provides that:
the person shall be brought into Australia and delivered to the appropriate authorities to be dealt with according to law.
That is relevant to this question of consent to jurisdiction.
KIRBY J: What extra light does that throw upon it? That is exactly what the appellant, as I understand it, is saying here. He should be dealt with in accordance with law, namely, the law laid down in the Extradition Act, namely, only tried on the offences on which he was extradited.
MR BENNETT: Yes.
KIRBY J: Does it add any other light?
MR BENNETT: Your Honour, according to law, substantively means in accordance with the ordinary laws of Victoria which would include federal law, and if the federal law is applicable, that law, too.
KIRBY J: Surely you appearing for the Commonwealth would say the ordinary laws of Victoria as modified in any valid respect by the laws of the Commonwealth?
MR BENNETT: I would and I do, your Honour. Those are the submissions in reply, if the Court pleases.
GLEESON CJ: Thank you. We will reserve our decision in this matter, and we will adjourn until 10.00 am tomorrow.
AT 4.04 PM THE MATTER WAS ADJOURNED
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